ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00042072
Parties:
| Worker | Employer |
Anonymised Parties | A Hotel Worker | A Hotel |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Industrial Relations Act 1969 | CA-52847-001 | 15/09/2022 |
Workplace Relations Commission Adjudication Officer: Pat Brady
Date of Hearing: 12/04/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
Background:
The complainant’s employment commenced on June 17th, 2021, and was terminated just under a year later on May 8th, 2022. |
Summary of Workers Case:
The complainant said that there had been no fair procedure followed in terminating his employment. He said that he had not been given any warnings in relation to his conduct. He was told that his employment had been terminated due to excessive absences, but he says that he had only been absent in February due to a family bereavement and in April due to having contracted Covid. |
Summary of Employer’s Case:
The respondent accepts that it did not apply the normal disciplinary procedures but says that the complainant in fact had a very significant pattern of absence.
Detail of theses absences was provided, and while some of the absences were by mutual agreement or unpaid a significant amount were not.
Also, some arose in situations in which the complainant just informed the business that he would not be coming to work.
On April 30th, 2021, he simply advised the respondent that he was returning to his home country for a week without prior authorisation. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.
It is not in dispute that the complainant’s employment was terminated without any due process or fair procedure of any sort, and this makes it an unfair dismissal.
The respondent has not disputed this.
The termination of employment at any time, including in the first year of employment requires the appropriate application of a degree of natural justice, which in everyday language is no more than courtesy to an employee.
The essentials of the principles of natural justice and fair procedure are generally well-known and indeed they are well-known to the respondent in this case also, they simply were not applied.
That said there are some grounds for concern about the complainant’s approach to the hearing.
A party will obviously put ‘their best foot forward’ in presenting their side of the argument and provided that this is within the bounds of acceptable advocacy a little hyperbole or selective emphasis of facts favourable to their case is understandable and tolerable.
In this case the complainant, in responding to the stated grounds for the termination of his employment, specifically referred only to two periods of absence in February and April for approximately one week each.
In fact, there was an extensive pattern of absence and while some of this was agreed with the respondent there was evidence of a very cavalier attitude by the complainant to his obligations to attend for work.
On occasions he simply told them he would not be turning up and seemed to believe that he could authorise his own leave without recourse to the respondent. Admittedly the respondent somewhat foolishly acquiesced in some of this.
Rather more seriously, the complainant submitted on the complaint form and in his opening statement to the hearing that he had not been the subject of any warnings.
In fact, he had been the subject of first stage (verbal) warning on March 12th, 2022, and he signed a form acknowledging ‘receipt of this disciplinary action and that its contents have been discussed with me’.
Even allowing a degree of licence to a lay litigant and for the relative informality of proceedings under this legislation this is a relatively serious error on the part of the complainant.
Even if it was not intended to mislead it represents a degree of carelessness in the submission of his complaint which is not acceptable nor is it something to be explained away as an oversight. Taken with his economic account of his absences it falls outside the boundaries of acceptable advocacy referred to above.
Therefore, while I conclude that the termination was unfair, for the reason just outlined I have significantly reduced the level of compensation which might otherwise have been recommended to take account of the manner in which the complainant presented his case. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I uphold complaint CA-00052487-001 and find that the termination was unfair.
I recommend that the respondent review its disciplinary procedures to ensure that the principles of fair procedure are applied as appropriate to the particular case.
I recommend that the respondent pay the complainant €500 as compensation for its failure to conduct a fair procedure, which amount I have significantly reduced for the reasons set out above
Dated: 21st June 2023
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Duty to present proper complaint. |