Worker

Employer

Anonymised Parties

Advertising Campaign Manager

Digital Audio Advertising Provider

Representatives

William Wall Peninsula

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act - Unfair Dismissal

CA-00059592-001

24th October 2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

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 all hearings, formal and informal, should be conducted fairly. The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

Industrial Relations disputes are primarily heard on the basis of factual and/or legal submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant evidence provided by the other side.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 24th of October 2023.

As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts it was heard in private and the recommendation is anonymised.

I have taken the time to carefully review all the evidence both written and oral.  I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was not represented and made his own case.  The Complainant relied on the submission outlined in the Workplace Relations Complaint Form. The Complainant gave additional oral evidence concerning the manner of his dismissal from the Respondent company. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was Unfairly dismissed when he was summarily dismissed without notice on the 25th  day of August   2023. As the Complainant has worked with the Respondent company for less than one year, he was obliged to raise this issue under the IR Acts.

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 Respondent had representation at this hearing. The Respondent entity was further represented by two witnesses – a Director and the Financial Manager. The witnesses gave oral testimony. The Respondent representative provided me with a written submissions on the day of the hearing. I am satisfied that eh Complainant had had sight of the said submission a few days in advance of the hearing. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case.

The Respondent rejects that there has been an unfair Dismissal and contends that the termination of the Contract of Employment was justified in the circumstances.

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.

I have carefully considered the evidence adduced by the parties herein and have considered the submission tendered.

The Complainant asserted that he was entitled to maintain this claim of unfair dismissal in circumstances where, having completed an extended probation period, the Complainant was unexpectedly and summarily Dismissed.

The Complainant had joined the company on the 26th of January 2023. The initial three-month probation period was extended for a further month. At the end of May 2023, the Complainant was advised by Company Director Mr T that he had completed the probationary period.

Then, three months later, at the end of August 2023 the Complainant was called into Mr. T’s office and was summarily dismissed seemingly for performance related issues and in particular a failure to communicate adequately with his team and management.

The Complainant says he was very shocked that he was being let go and this was compounded by the fact that he says he had had no warning or inclination that Mr. T had felt there was a problem with him. In fact, the Complainant (who stated that he loved the workplace and the work) thought he was doing a good job and referred to the 250 campaigns which he had completed in his seven-month tenure.

As noted, the dismissal was treated as a summary dismissal by the Employer. This therefore meant that no notice period was worked out which might have allowed the Complainant to transition into another job without the financial hardship he says he incurred as a consequence of the unexpected termination of his employment and income. The Complainant was particularly aggrieved at the manner in which he was cast out without any thought or consideration of the financial impact this would have on him.

I note that the Complainant’s Contract of Employment specifically allows for a two month notice period once the probation period has been completed. Had the dismissal been anything other than a summary dismissal then he, in theory, should have been allowed work on for another two months or to get paid €5,000.00 in lieu.

The Respondent, and in particular Mr. T, strenuously asserted that the Complainant had to be let go as he was costing the company money and Contracts. Mr. T described the nature of the work for me. The Respondent is a growth digital audio sales agency with the Complainant engaged as an Operations & Sales Support Executive. The Complainant was responsible for putting together campaigns and running campaigns. Mr. T says that he met the Complainant in the April of 2023 to bring to his attention matters that had been raised which caused concern.  The complainant was advised that his performance was below what was expected and that he needed to improve. In June the respondent met again with the complainant and advised that he had passed his probationary period.

However, it now seems that, despite passing through the probationary period Mr. T says that the Complainant continued to fail in his role. In particular, Mr. T alleged that there were issues arising as to the whereabouts of the complainant in the course of the working day.  There was a systematic failure (says Mr. T) by the Complainant concerning his non- communication. I understand that the Complainant was working remotely for a considerable portion of his 40-hour week. The Complainant was not replying to his manager, his team or to the campaign clients. The Respondent uses an instant messaging tool which allows for immediate response. Mr. T was very concerned that the complainant was failing to communicate with clients by return.

I have every sympathy for Mr. T who was trying to run a tight ship. This is a very competitive business, and the Complainant was, he says, proving unreliable. It was in these circumstances that the Complainant’s employment was terminated on the 25th of August 2023. It seemed to me that Mr. T genuinely thought that his actions were beyond reproach. However, I am inclined to accept that the Complainant was blind sided by this decision. He was fired in circumstances where he had had no warning that his employer was even considering such a step. I am particularly mindful of the fact that if the Complainant was overwhelmed by work, or lacked adequate training, then steps should have been taken to remedy these facts. If the Complainant was out of reach, then surely, he should have been brought into the office for the full working week? In any event there was no conversation around why things were going wrong, and what could be done to improve matters. The Complainant was simply terminated with no forewarning.

In his defence the Complainant says he was working very hard and putting in a tremendous effort. If he was not returning calls immediately it was because he was on a task or on another priority matter. The Complainant noted that he’d only been there seven months and was learning on the job. There was no suggestion of any mentoring. As noted, the Complainant said he had successfully completed 250 campaigns in his seven-month employment.

Mr. T gave evidence that, after the Complainant had left the workplace, he had discovered other issues with his work. These issues however are after the fact and did not form any part of the decision-making process which led to the dismissal of the Complainant. I cannot therefore allow the Respondent to shore up his decision after the event. On the 25th of August 2023 Mr. T did not afford the Complainant the chance to defend his reputation nor did he give him the time to improve on his performance. The Complainant was simply dismissed and removed from the workplace. A person with a rudimentary understanding of HR matters would know that this was never going to be acceptable. For the avoidance of doubt, I am finding the selective introduction of emails by the Respondent do not establish an entitlement to dismiss as there is no evidence that they were ever discussed with the Complainant.

I do note that some two months after the dismissal the Complainant was (through his own efforts) fortunate enough to find alternative employment. I also note that the Respondent paid €1,000.00 flat sum after the dismissal.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. On balance I am finding that the Employer has not persuaded me that this Summary Dismissal was justified.