Complainant

Respondent

Parties

Obasanjo  Olajubu

Wasdell Europe Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Niall Breen Niall Breen & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00054124-001

13/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00054124-002

13/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00054351-001

04/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00054351-002

04/01/2023

The Complainant alleges he was unfairly dismissed from his employment in September 2022. The Respondent states he was in fact dismissed for poor performance, poor attendance and a bad attitude in July 2022 during his first year of service with the Respondent.

The Complainant after taking the affirmation gave his evidence as follows;

The Complainant stated that he was one of the best workers in the Respondent company. He did sign a contract, but he was not sent a copy of it. Under cross examination when shown his signature verifying that he has been given a copy of it, he said that he had not. He did ask the receptionist for it on several occasions, but he never got it.

He sustained injuries in a road traffic accident on the 12th June. He sent a message to his line manager via Facebook. His line manager replied wishing him well. He submitted his sick certificates on the 1st July.  He stated that he couldn’t comply with the company procedure because he was ill and couldn’t hand them in. He was told to give them to the receptionist when he came back. The first certificate expired on the 22nd  June. That was a Friday. There is no certificate until the 26th July. When asked under cross examination why there was no certificate for that time, he stated that he didn’t really know but said that it might have been because he was waiting for an appointment with his GP. There is a gap in the sick certificates again on Friday 23rd August until the 3rd September. The Complainant did not have an explanation for that other than he wasn’t feeling fit for work. He denied that it had anything to do with Mr. Todd’s annual leave.

When he did return to work, he found it difficult due to his back injury. He was given a chair to help him out. He was in too much pain, so he had to take time off the following week. However, just before that, on 4th July he was called into a meeting to discuss his performance issues. He explained that he had been in an accident and was finding it difficulty. He did receive a call on the 5th July. Mr Todd told him he should stay at home until he was fit to work. On the 8th July he was due to go to work, he sent a Facebook message to his line manager. He does that because the number he has to call him on, is never answered. He also likes to send the message in writing so that there is proof of it.

He returned to work on the 2nd September. He handed in his certs. He used his swipe card to get into the premises. He used his fob to sign in for work. The fob did work on the 2nd. He was asked if he was better and able to work. He said he was. He was sent to the production line.

On the 3rd September, when he arrived for work,  his fob did not work. He went to his supervisor. He logged him in. On the 4th the fob still wasn’t working. He worked 5th 6th, 9th 10th 11th  and 12th. For all of those days his fob wasn’t working. On the 13th September he turned up for work as normal. He was on the production line. Gavin Green approached him and said “are you not aware that you have been fired”. He was asked to leave the premises. He was paid in mid -September for the work done in September.

The Complainant started to look for work. He got a new job on the 2nd December. He is working in a barber’s shop. He is earning € 400.00 per month. He is working 3 days a week, eight hours per day. That amounts to €4.00 per hour. He has continued to look for full time work, but he has not been successful.

Mr. Alan after taking the affirmation gave his evidence as follows:

He is a Production manager with the Respondent for 3.5 years. The Respondent is a pharmaceutical packing company. The Complainant was an operative, he was on different lines depending on where he was put on any given day. Mr. Todd was his manager when he worked on three shifts during the week. He asked Mr. Todd if he could move to the night shifts. He was moved. The Complainant’s work performance wasn’t great. His attendance and his work ethic were poor. The Respondent had a concern meeting with him about it. That was on the 4th July.  He was informed that he would have to move back to the day shifts so that Mr Todd could keep and eye on him and manage his progress. He refused to do that. Mr Todd spoke to his manager.  A call was scheduled for the 5th to talk to him about it again. They agreed that he would be dismissed as he wasn’t with the company a full year at that stage. The decision to dismiss him was made by Mr. Todd after he spoke to HR. The Company policy is that anyone can be dismissed if they still are within the first twelve months of their employment. On the 5th July Mr Todd made a phone call to him. He informed his that he was going to be dismissed and the dismissal letter was read out to him. Due to an administrative error that letter did not issue. It is accepted by the Respondent that that was a mistake.  

In June the Complainant was absent from work for a period of time. There was no indication that he had any health issues. On the 5th July Mr Todd emailed Ms. Watson and said “thanks, done that …”  He was confirming to Ms Watson that he had dismissed the Complainant, read out the letter and that it was understood by the Complainant.

The sick leave procedure within the Respondent company is that you have to ring Mr Todd or the Production department one hour before your shift is to start. If the employee is off for more than two days, they have to submit a certificate. The Complainant says that he gave those medical certificates to the receptionist. That is not accepted by the Respondent. The Complainant says he did that because when he came back from sick leave on the 1st July he was told to give the certs to the receptionist. That is not accepted by the Respondent.

From the 5th July to the 13th September the Complainant did not attend for work. Mr. Todd was on holidays end of August and returned on the 13th September. He was shocked to see that the Complainant was there. He didn’t have a fob so he couldn’t swipe in and out, but he did have a card so that he could move in and out of the building. A check was done, and it confirmed that the last time he swiped in for work was the 4th July. Mr Todd asked why he was back in the building. He said he was off sick and he had sick certificates for that period of time. He never submitted those sick certificates. He was asked to leave the premises. He was written to again on the 15th September and was informed that if he attends on the promises again the Gardai will be called. There are strict rules about being on the premises if not authorised to be there. The premises is full of controlled medications so the Respondent can’t have unauthorised personnel on site. That letter refers to the letter of the 5th July that should have been sent out.

When the Complainant was off sick in July after his dismissal, he says in his evidence that he sent a Facebook message to his line manager in relation to an accident he had. His line manager responded wishing him well.  It is noted that he didn’t respond to the second message he sent. It is also noted that sending messages on Facebook is not company procedure.

The Company did pay him for the two weeks he worked while Mr Todd was on holidays. That was a goodwill gesture.  

On his payslip dated 15th July he was paid 30 hours annual holiday pay = €381.00. This didn’t raise any alarm bells with the Complainant. The Complainant explanation was that he doesn’t remember getting it.

This is a very unusual case based on an equally unusual set of facts together with a number of administrative errors that only serve to complicate the matter.

The Complainant commenced working for the Respondent on the 30th August 2021.The Respondent states that the Complainant was verbally dismissed on the 5th July by Mr Todd when he called him and read out the dismissal letter to him. Mr. Todd only got three quarters way through the letter when the Complainant hung up on him. Unfortunately, that letter was not sent to the Complainant due to an administrative error.  However, that letter is referred to in the letter dated the 15th September and is implied in the email sent from Mr Todd to Ms. Watson in HR following the dismissal.

The matter is further complicated by the Complainant’s sick leave during that period of time. He had had an accident in June. He was certified unfit for work following that. I note two issues with the sick certificates. Firstly, there are gaps in the sick certificates meaning there are several days not covered by them. Secondly, the Complainant he did not submit those certificates weekly as were required of him. Instead, he says he handed them into the Respondent at reception when he came back to work.

 After his return and on the 4th July he was called into a meeting with Mr. Todd. The Complainant states that it was to discuss the issues he was having following his accident, the Respondent states that was to discuss his poor attendance and poor work ethics and performance. On the 5th he was dismissed by Mr. Todd and the majority of the dismissal letter was read out to him. When the Complainant was dismissed on the 5th July, his access fob was deactivated. The Respondent didn’t see or hear from the Complainant again until he showed up for work in early September. His reappearance at the workplace coincided with Mr. Todd’s annual leave. His fob wasn’t working at that time having been deactivated in July.  The receptionist contacted IT about his fob not working and she was informed by a Mr. Oguntuase that fob had been marked as “ leaver”.  However, despite that the Complainant did actually work a number of days in September whilst Mr. Todd was on leave.  The people he was working with were not aware that he had been dismissed in July. When Mr. Todd returned he asked the Complainant what he was doing on the Respondent’s premises, reminded him that he had been dismissed, told him to leave and informed him that if he came back the Gardai would be called. The Complainant left and did not return.

Based on the evidence of the parties together with the documentation submitted, I am satisfied that the Complainant was dismissed from his employment on the 5th July by Mr. Todd and following that dismissal was paid everything that was owed to him save for his notice payment. It is conceded that he did not receive his notice payment.   I am further satisfied that the timing of his reappearance at the Respondent’s premises in September when Mr. Todd was on annual leave was not a coincidence. He should not have been there. I am satisfied that he knew that. I say that based on two things. Firstly, his fob had been deactivated and secondly, he knew he had been dismissed but waited until Mr. Todd was out of the premises before he attempted to slip himself back in under the radar. Having satisfied myself that the Complainant had been dismissed on the 5th July means that the Complainant has less that one years’ service, which is a requirement under the Unfair Dismissal Act. Therefore, I find that I do not have jurisdiction to adjudicate on this matter. The complaint CA-00054124-001 fails.  

Complaint CA 54124 -002 is conceded. I award the Complainant one weeks’ notice payment in the amount of € 450.00

Complaint CA 54351 – 001 and 002 were withdrawn.

CA 54124 – 001: the complaint fails

CA 54124 – 002 The complaint is well founded. I award the Complainant €450.00