Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Act

Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act 1969.

CA-00048424

01/02/2022

The worker was dismissed following an absence.  The worker states that he was treated unfairly. The employer outlined that it was entitled to dismiss the worker because the employer had lost trust and confidence in the worker.  

The worker commenced employment with the employer on a part-time basis on 12 October 2021. He was contracted to provide security services at a client company in Tipperary. The worker did not receive any written terms of employment despite requesting same on several occasions. The worker did not know the procedure to be followed in the event of absence. The worker enjoyed his job and was well regarded by the client company where he was assigned to work. The worker had no absences prior to 26 December 2021 and was a good timekeeper.

The worker outlined that he was due to attend for work at 5am on 26 December 2021. He had felt unwell for two days prior to that date but hoped his illness would improve before his next shift. On 26 December 2021 the worker felt so unwell he could not attend for his 5am shift. The worker sent a WhatsApp message to his employer at 4.50am to advise his employer that he would not be attending for work. It was normal for him to communicate with the employer via WhatsApp. The worker stated he did not know if he was required to provide a medical certificate. The worker subsequently tested positive for Covid-19 and felt very unwell for several days.

On 6 January 2022 the worker texted the employer to say he had now tested negative for Covid-19 and could return to work. The worker stated that he was told by his employer over the phone on 12 January 2022 that he was dismissed.  The worker contends that this was unfair treatment as he did not know the rules around absence reporting; that it was his first absence; and that he was genuinely too unwell to attend for work or to phone the employer.

The worker stated that the dismissal has affected his confidence and that he has not secured employment since his dismissal.

The employer stated that the worker was normally required to work 12 hours per week at the time of his dismissal, although he had worked up to 20 hours on occasion prior to this date. The worker was required to provide security services at a client location in Tipperary. On one occasion the worker left the site before his contracted finishing time.

On 26 December 2021 the worker was scheduled to commence work on the Tipperary site at 5am. At 4.50am the employer received a message from the worker via WhatsApp saying the worker was sick and could not attend for work. The employer did not see that message as he was in bed and missed a call from the Security Manager of the client site. The Security Manager of the client site had to come in to cover the shift despite being on holidays. The employer stated that he tried to contact the worker that morning and on several occasions over the following week but there was no answer. These calls were not returned. The client company made it clear that it did not want the worker back. The employer stated that he doubted the bone fides of the worker’s illness especially given that it followed Christmas Day. The employer felt he had no option but to dismiss the worker as the employer had lost trust and confidence in him and the worker had seriously jeopardised the contract the employer had with this client. The employer paid the worker one week’s pay in lieu of notice.

The employer accepted that the worker had not received a contract or an absence management policy, however, the employer stated that the worker should have known it is normal practice to phone rather than send a message if unable to attend for work and to provide a certificate if the absence exceeds three days.  The employer would normally issue verbal and written warnings before dismissal; however, the worker was on probation and was not entitled to the benefit of a series of warnings.

In conducting my investigation, I have considered all relevant oral submissions presented to me by the parties.

The worker performed well in the role, until a short absence from work due to Covid-19. The worker was not informed of the procedure for notification of absence or the requirement to provide a medical certificate in the event of absence.

In assessing the merits of the dispute, I am satisfied that the worker’s short absence from work was not a matter warranting dismissal. The manner of the worker’s dismissal fell far short of the standard of treatment that could be expected from a reasonable employer. An employer is not relieved of the obligation to act fairly during a probationary period. The requirements of SI 146/2000 (Code of Practice on Grievance and Disciplinary Procedures) apply in all circumstances where the termination of a worker’s employment is being considered.

I recommend that the employer pay the worker compensation in the amount of €1,500 in full and final settlement of this dispute.

Dismissal. Industrial Relations Act.