Worker

Employer

Anonymised Parties

General Operative

Production Facility

Representatives

Self-Represented

Mr. Terry McNamara, IBEC

Act

Dispute Reference No.

Date of Receipt

Dispute seeking Adjudication under the Industrial Relations Act 1969

CA-00054450-001

09.01.2023

The Worker commenced employment with the Employer on 3rd October 2022. At all relevant times the Worker was engaged as a general operative and earned an average weekly wage of €522.04. The Worker’s tenure was brief, with the same being terminated by the Employer on 6th January 2023.

On 9th January 2023, the Worker referred the present dispute to the Commission. Herein, he alleged that his dismissal was both procedurally and substantively unfair. In particular, the Worker  submitted that he was deemed to have failed his probation following a period of absence arising from treatment for alcohol dependence. He alleged that the Employer dismissed him without recourse to any form of procedure and without considering his particular circumstances. In denying this allegation, the Employer submitted that the Worker was dismissed for excessive absence during his probationary period, in accordance with an express contractual provision.

A hearing in relation to this matter was convened for 30th August 2023. At the outset of the hearing, the Adjudicator explained to the Worker, a lay litigant, that the hearing listed related to a trade dispute within the meaning of the Industrial Relations Acts. It was further explained that the impleaded act allowed the Adjudicator to issue a recommendation in relation to the resolution of the same. At this juncture, the Worker stated that he was anxious to continue and wished to proceed under these terms. Following the hearing, the Adjudicator took the extremely unusual step of corresponding with the Worker, summarising the Worker’s case and enquiring as to whether the present dispute under the impleaded legislation was the sole complaint brought by the Worker. By response dated 18th December 2023, the Worker again confirmed that he wished to proceed under the impleaded legislation and stated that he was anxious for a recommendation to issue.

Prior to the hearing as convened, both parties issued extensive submissions. These were expanded upon and contested by the opposing side in the course of the hearing.

No issues as to my jurisdiction to hear the despite were raised at any stage of the proceedings.

The Worker commenced employment with the Employer on 3rd October 2022. The Worker stated that he enjoyed the role and believed that he performed quite well in his initial duties. On 30th November 2022, the Worker fell ill and commenced a period of illness related absence. This period of absence lasted until 12th December, with the Worker providing the relevant doctor’s certificates and generally complying with the Employer’s absence procedures. On his return to work, the Employer did not engage in any form of return-to-work meeting or formal process in respect of his absence. At this point, the Worker resumed his duties and again felt that he performed well in his role. Matters proceeded in this fashion for the following few weeks, with the Worker commencing the standard Christmas holidays towards the end of the year.

Unfortunately, over the Christmas break, the Worker suffered a relapse into alcohol dependence and was hospitalised in respect of the same on 3rd January 2023, the day he was due to return to work. On 5th January the Worker emailed the Employer’s HR department explaining the situation and outlining the extent of his previous addiction issues. The HR department was initially quite sympathetic and stated that the Worker should take time off if the same was required. By response, the Worker stated that he felt that he would be in position to return to work on Monday 9th January 2023, and stated that he was eager to do so. Four hours later, without any further notice, the Worker was informed that his employment was to be terminated due to excessive absence and improper conduct while absent.

By submission, the Worker stated that he was dismissed without the employer adhering to any form of procedure or process in relation to the same. In addition to the same, the Worker submitted that the Employer failed to consider his particular circumstances prior to dismissing him. In this regard, he submitted that just prior to his dismissal, he notified the Employer of his ongoing addiction issues and that as consequence of the same, they had a responsibility to consider the same prior to terminating his employment.

In response the Employer’s submission the Worker denied that he had ever been spoken to by his line manager in respect to idling. He accepted that he did ask to be moved from the night shift but stated that he requested to be moved whenever a position became available.

In answer to a question posed by the Adjudicator, the Worker stated that he referred the dispute under the present legislation as he did not have one year of service and, as a consequence of the same, could not avail of the protections under the Unfair Dismissals Act.

At the outset, the Employer disputes the Worker’s allegations, on a substantive and procedural basis.

At the commencement of the Worker’s employment, he signed a contract of employment containing a probationary clause. This clause stated that the Worker’s employment could be terminated by the Employer with one week of notice during the first six months of the Worker’s employment. This provision expressly stated that non-compliance with the Employer’s absence policy could result in the Worker’s employment being terminated.

The Employer submitted that near the commencement of the Worker’s employment, his line manager observed the Worker idling when certain tasks were to be completed.  In addition to the same, on 28th November 2022, the Worker emailed the HR department requesting to be moved from the night shift. The day following the issue of this email, the Worker commenced a period of sick leave and returned to employment on 12th December 2022.

On 5th January 2022, the Worker emailed the Employer’s HR department stating that he had been hospitalised for alcohol withdrawal. Following the same, the Employer took the decision to terminate the Worker’s employment on grounds of a failure to pass his probationary period.

By submission, the Employer stated that the Worker was employed for nine weeks in total. During those nine weeks, the Worker was absent for a total of 13 days, equating to 29% of all days of employment. In such circumstances, the Employer submitted that it was entirely reasonably for them to rely on their express probationary clause and dismiss Worker in accordance with the same.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The present dispute involves an allegation by the Worker that his dismissal was both substantively and procedurally unfair. In denying this allegation, the Employer submitted that the Worker was dismissed for excess absence during his probationary period.

It is noted that the Worker had two periods of absence whilst engaged with the Employer. In this regard, it is common case that the first period of same accounted for the overwhelming majority of overall absence. On return from this period of absence, the Employer took no issue with the same and failed to raise any form of concern regarding these absence levels. Indeed, as noted by the Worker, the Employer did not engage in any form of return to work protocol regarding the cause of the absence, with the Worker simply returning to work thereafter.

Regarding the second, much shorter, period of absence, it is apparent that the Employer formed the view that the same justified that termination of the Worker’s employment as a consequence of failing his probationary period. In support of the same, the Employer sought to rely on the express wording of the probationary clause. Having reviewed the same, it is apparent that the relevant clause contains no such provision, with the same referring to a failure to abide by the absence reporting policy or a misuse of the sick pay scheme as grounds for termination on foot of the same. It is also unclear as to why two further days of absence, brought about by the hospitalisation of the Worker, would give rise to a level of concern necessary to require the termination of his contract of employment.

In answer to a question posed by the Adjudicator, the Employer accepted that they engaged in no form of process in respect of the termination of the Worker’s employment. Indeed, from the narrative of events outlined, it appears that the Employer’s position prior to the termination is somewhat contradictory. When the Worker initially informed the Employer of the rationale for his hospitalisation, he was advised to take a period of time to continue his recovery. Shortly thereafter, when the Worker advised that the wished to return to work in the coming days, he was simply informed that this employment was terminated without any further notice or recourse to any form of procedure. It is also apparent that the letter of dismissal refers to matters of alleged misconduct that were not brought to the Worker’s attention at the relevant time or at any point prior to this dismissal.

Having regard to the foregoing, it is apparent that the Worker was dismissed without being provided with an opportunity to contest the rationale for the same, without form of meeting being arranged in respect of the issues that led to his dismissal, without any opportunity to put forward his version of events or his particular circumstances and without any prior warning in respect of the issues that led to the same. Such a process, insofar as the same can be called a process, is absolutely and fundamentally unfair to the Worker. Even in consideration of the Worker’s probationary clause, the Employer rationale for dismissal is unclear, contradictory and unsupported by relevant evidence.

Having regard to the foregoing, I recommend in favour of the Worker. In circumstances whereby the parties no longer enjoy a working relationship, compensation in the only appropriate redress in these circumstances. In this regard I recommend that the Employer pay the Worker the sum of €8,000 in compensation in settlement of this dispute. Said compensation should be paid within six weeks of the date below.

Absence, Probation, Termination