ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00034910
Parties:
| Worker | Employer |
Anonymised Parties | Covid-19 testing technician | Covid-19 testing centre |
Representatives | Self- represented. | General Manager |
Dispute(s):
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act | CA-00046000-001 | 07/09/2021 |
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Date of Hearing: 27/05/2022
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 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 evidence relevant to the dispute.
The worker attended.
Background:
The worker commenced employment as a swabber, taking samples from clients with the employer, a Covid-19 Testing facility, on the 12/8/2021. He was dismissed on the 28/8/2021. He earned €1062 gross per fortnight. He worked 40 hours a week. He submitted his dispute to the WRC on 7/9/2021. |
Summary of Workers Case:
The worker’s supervisor telephoned him on 28 August to state that he was dismissed forthwith as there had been complaints about him. The reasons given were his failure to turn up for work on 16 August 2021. But he had told a colleague swabber that he could have difficulty with transport. He never committed to attending at work on that date. In relation to the other stated reason for his dismissal- his not wearing scrubs, the supervisor had told him he would try and procure scrubs for him. Finally, on the 15 August the supervisor told him that he had no scrubs. The complainant ordered the scrubs on 23 August, and they were delivered to him on the 25 August. He accepts that he did miscalculate the number of swabs to be sent to the laboratory. However, while the outer label had an incorrect number, the correct number of swabs were in the container. Hence all of the clients’ swabs were delivered to the laboratory. He asked the supervisor for a written statement of dismissal; he did not receive it. The complaints against him were not properly investigated. The reasons given to him did not amount to a reason to dismiss him.
|
Summary of Employer’s Case:
The employer ran a Covid 19 testing facility. The employee was employed as a tester to take swab samples from clients. The employee failed to observe health and safety regulations. He was advised at a training course on the 11 August of the need for scrubs yet failed to obtain them and posed a potential risk of contamination to clients by wearing his own clothes before, during and after work. He frequently took unauthorised breaks during the working day. The worker has referred to other problems with his performance. The employer considers his termination while on a probationary contract to be fair and reasonable given his proven unsuitability.
|
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. The employee was dismissed during his probationary period after two weeks of employment. The employee did not dispute the existence of the problems and concerns identified by the employer. He ascribed responsibility elsewhere for these problems. The employer gave credible reasons for this termination. I accept that testing facilities were desperately in need of testers and loathe to needlessly dismiss staff. In a high-risk environment such as testing centres, and given the vulnerability of the population, the need for absolute compliance with procedures is incontrovertible. I acknowledge that he was not put though an investigative process. The decision in Donal O’Donovan v Over-C Technology Limited [2021] IECA 37 addressed a dismissal during a probationary period for performance reasons and found that an employer is not under a strict obligation to apply fair procedures where the dismissal is for performance issues and not misconduct.
Considering all the evidence, I do not find that the dismissal of the worker was unfair. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I find that this complaint is without merit.
Dated: 22/03/2023
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Dismissal during the probationary period. |