ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference: IR - SC - 00001403

Parties:

	Worker	Employer
Anonymised Parties	General Assistant	Refugee Accommodation Provider

Representatives

Dispute:

Act	Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	IR - SC - 00001403	18/05/2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Date of Hearing: 04/10/2023

Procedure:

In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission, the said Director General will then refer such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will also take into account any and all documentary or other evidence which may be tendered in the course of the hearing.

A Trade Dispute in this context will include any dispute between an employer and a worker which is connected with the employment or the non-employment, or with the terms and conditions of or affecting the employment of any person.

I have confirmed that the Complainant herein is a Worker within the meaning of the Acts and I have conducted an investigation into the said trade dispute as described in Section 13. It is noted that Section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties on foot of any investigation so conducted. In making such recommendations I am obliged to set out my opinion on the merits of the dispute and the positions taken by the parties thereto. Any consideration on the merits of the dispute will include an examination of the efforts made by the parties to exhaust any and all internal procedures or structures which ought to have been utilised before bringing the dispute to the attention of the WRC.

Where applicable, this investigation may involve an assessment of whether internal processes have complied with the general principles set out in the Code of Practise on Grievance and Disciplinary Procedures (SI146 of 2000).

Under Section 36(1) of the Industrial Relations Act 1990, any party may object to an investigation by an Adjudication Officer of the dispute raised in the complaint form. The Respondent employer must indicate any such objection in writing within 21 days of the notification of the dispute raised in the workplace relations complaint form. In the event that the Employer does not indicate an unwillingness to have this matter dealt with by way of Adjudicator investigation, the Employer will be regarded as having given consent.

If an objection is not received within the required timeframe and in the required format but at a later date it will not be considered valid for the purpose of this Act, and a hearing in relation to the dispute will be assigned.

It is noted that the Complainant herein is alleging that fair procedures were not followed and that he was unfairly dismissed. It is further noted that the complainant has less than one year of service with the Employer. In such circumstances, Section 20(1) of the Industrial Relations Act of 1969 allows the worker to refer the dismissal to the WRC as a dispute under the Industrial Relations Acts. I am satisfied that any proper reading of the Workplace relations complaint form dated the 18th of May 2023 references the fact that the Complainant believes he was unfairly dismissed.

Background:

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to require that all parties giving oral evidence before me, would swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 18th of May 2023. The Complainant’s employment was terminated by letter dated the 9th of May 2023. The letter was sent by the Complainant’s Line Manager. The Complainant was out sick on this day and was certified to be out sick until the 17th of May 2023.

Summary of Workers Case:

The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the narrative already outlined in the Workplace relations complaint form. A number of documents already provided to the WRC were opened to me – these primarily consisted of medical certificates. The Complainant additionally read through a number of letters from the Employer to himself and which were made available to me in the course of the hearing. This included his letters of termination and warning.

The Complainant alleges that he was Unfairly dismissed and that the Employer failed to adopt fair procedures when terminating his employment and in this regard I am referred to the basic requirements and principles set out in the Code of Practise on Grievance and Disciplinary Procedures (SI146 of 2000). Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Complainant was employed as a General Assistant at a Centre providing housing for international refugees seeking protection and asylum from within the state. The Complainant enjoyed the work and felt rewarded by his interactions with the service users. The Complainant worked twelve-hour shifts at a rate of €12.00 per hour.

The employment commenced in July of 2022. The Complainant says that an issue arose in February of 2023 when (after a formal meeting held with his line manager) he received a letter of warning from his line Manager concerning the issue of swopping shifts and being late for shifts. The letter sought an improvement in performance regarding theses two issues. The Complainant accepted the contents of the letter and a review date of the 27th of March came and went with the Manager noting that the issues were no longer of concern.

On the 5th of May of 2023 there was a worrying incident in the workplace when an employee was assaulted by a Service User. This Complainant had nothing to do with the incident though he was obliged to give a Statement to the Gardai about what he had seen. Inevitably everyone in the centre was on high alert in the aftermath of this incident. The Complainant indicated he believed that the assault was an inevitable consequence of the way in which end users were treated. In particular the way access to anything was rationed.

In fact, the assailant in question was seen by the Complainant in the aftermath of the incident trying to regain access onto the premises. The Complainant raised the alarm.

On or about the 9th of May the Complainant was sick as the stress and tension in the workplace was getting to him. The Complainant attended his Doctor who provided the Complainant with a sick cert for one week.

The Complainant says that his Employer’s response to this was to terminate the employment. I was provided with a letter of termination dated the 9th of May which I understand was sent to the Complainant on the 10th of May.

The Employer’s letter amounts to a Summary Dismissal for reasons outlined (of which there were six) and none of which were seemingly addressed with the Complainant before the 9th of May 2023. The Complainant believes that the Employer simply wanted to fire him because the Complainant had suggested that the tensions of the workplace were negatively impacting on his health. The Complainant believes that this was the Employer’s blunt way of dealing with any such issue raised.

The issues raised and relied on in the purported letter of dismissal included leaving the workplace unattended, not following company procedure and not completing tasks. These were general allegations not backed up by specific examples.

Summary of Employer’s Case:

The Respondent did not attend. I am satisfied that the Respondent was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 7th day of September 2023. This letter was sent to the Complainant’s Line Manager at the registered address of the company which also happened to be the place of work of the Complainant.

The Respondent did not challenge the evidence adduced by the Complainant herein.

Conclusions:

I cannot know or understand what the rationale was form the Employer’s perspective. However, I am satisfied that the Complainant was given no opportunity to address the issues raised and nor was he warned that there were issues to be addressed before he was summarily dismissed. The Employer’s action was high handed unreasonable and unfair and I am satisfied that the termination of employment was unfair.

The Employment relations is over. |I am satisfied that the termination of the Employment was unfair and contrary to natural justice. In considering what recommendation I will make, I am mindful of the fact that the Complainant has been on illness benefit since that time he has not been available for employment.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute. Having already articulated my opinion on the merits of the within dispute, I am recommending that the Respondent pay to the Complainant the sum of €2,400.00 within four weeks of the date of this recommendation.

Dated: 26th October 2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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