ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00044840
Parties:
| Worker | Employer |
Anonymised Parties | A Worker | A Company |
Representatives | Self | No appearance |
Dispute(s):
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act | CA-00055517-001 | 12/03/2023 |
Workplace Relations Commission Adjudication Officer: Michael MacNamee
Date of Hearing: 15/11/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
There was no appearance at the hearing by or on behalf of the Company. Having confirmed that the Company had been notified of the time, date and venue for the Adjudication Hearing, I proceeded in the absence of the Company.
Background:
The matter came before me for investigation and a hearing took place at the offices of the Workplace Relations Commission. The Worker sought compensation for Unfair Dismissal pursuant to Section 13 of the Industrial Relations Act. He was dismissed on the 22nd of February 2023. |
Summary of Workers Case:
The Worker submitted a Complaint Form which was received on 12/03/2023.
The substance of the endorsement on the claim form (with some necessary amendments to avoid naming any parties, was as follows: I started my employment in [The previous company] on the 17/05/2022, My employers name was [Named Individual], I worked for [that individual] for seven months. During these seven months I received two pay rises. On the 17/11/2022 we were informed by [that Individual] that he was selling the company to his friend. We had a staff meeting including the new owners. [That Individual] informed us that he was still a part of the company but taking time out for personal reasons, he also assured that everyone was being kept on and nothing would affect our employment. Sometime in January the company name changed to [its present name]. I continued to be employed by the [present] Company and worked Monday to Friday. During this time there was no communication between myself and my employer about any performance issues and no complaints from any dealerships where my work was conducted. There were no written warnings handed to me or any verbal warnings.
in January 2023 I was handed a three-page contract and asked to sign it. When I read it, I expressed my concern about the pay-date being changed to fortnightly. My contract was taken back after we discussed this matter, and I received a new contract on the 20th of January 2023 which changed to 11 pages long. I expressed my concerns about some issues in my new contract, but I was assured that there would be a sit-down meeting to discuss these matters, which never happened.
On the 22/02/2023 I arrived at work at 8am to do my usual shift. When I completed the day at 5:30pm I was handed a letter and instructed to read it. When I asked a manager of the Company what it was about, he repeatedly told me to read it and would not verbally tell me I was being dismissed. He told me to ring another {named] person about it if I had any questions as he was not getting involved.
I proceeded to gather my work items and left the premises.
The contract that I received on 20/01/2023 states that the "the employee will commence permanent full-time employment with the employer on the 1/12/2022. There was no probation period. When I read this letter that I received from the Company that I have only been employed for eleven weeks and I was on probation the letter stated I was dismissed on the 22/02/2023 due to performance issues.
I would also like to add that the Company paid me for my holidays from 2022 that was due to me from previous employer. This shows that I have been employed by the Company for more than eleven weeks. I have worked for a total of 9 to 10 months. |
Summary of Employer’s Case:
The Company did not appear nor was the Company represented at the hearing. The Company did provide a written submission by email dated the 2nd of May 2023 stating (with necessary anonymisation) as follows: To whom it may concern, Please accept this e-mail as a response to complaint CA-00044417 submitted by [the Worker]. The following comments are in response to [The Worker’s] complaint. 1. The Company is a newly formed entity, owned by Named Individual, and is the sole purchaser of the contents and clients of the Company. The previous owner, [Named], operated as a sole trader and has no invested interest in the company. The Company assumed ownership of the business as a going concern on December 1st 2022. 2. Following this, contracts were issued to employees, mimicking their previous contracts, with a view to maintaining consistent working conditions. 3. Although we were not legally liable to pay holiday pay (given the business was in fact purchased as a going concern and therefore conditions of existing contracts rolled) we paid outstanding holidays owed by the previous employer in a show of good faith to our new employees ([the Worker] has confirmed this in his complaint) 4. All employees were paid weekly, we intended on changing this to twice monthly to assist with payroll costs to the business, however [The Worker] requested that we continue to pay weekly and we agreed to do so. A new contract was issued to [The Worker], however he never signed this. 5. [The Worker] commenced employment with us on the 1st of December, previously he did not have 12 months of service. He was employed under the new company for a total of 11 weeks.
Whilst the dismissal letter stipulated unsatisfactory performance, the underlying issue for dismissal was gross misconduct resulting from verbally abusive and threatening behaviour towards a fellow staff member. This incident occurred in the lobby area of our premises and CCTV footage can be provided as required. The footage (Monday 13/02/2023 at 10:34am) shows a team meeting taking place in our lobby area with all staff members. The manager is seated on a couch and is conducting the meeting. As the meeting progresses, all staff members remain calm however the complainant is seen becoming increasingly aggressive. He then approaches the manager who is seated and continues to shout and point in the managers face in an aggressive manner. Another staff member is seen interjecting in order to diffuse the situation and discourage the complainant from acting in a potentially physically aggressive manner following the verbal altercation. The video footage is 2 minutes long in total.
We have an adequate policy in place for discipline and grievance and in other circumstances, would follow the normal course to ensure correct steps were taken to dismiss fairly. However, given [the Worker’s] aggressive behaviour, we feel the decision to dismiss on the grounds of gross misconduct to be fair.
I can see from [The Worker’s] complaint submission that he is seeking compensation, however given the above, we don’t feel compensation is warranted on this occasion.
We wish [the Worker] the best with his future endeavours. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.
There was no appearance from the Company. The Complainant said that he refuted the allegation that he was guilty of the alleged or any misconduct. He said that at the meeting where he was alleged to have been abusive he spoke in a calm and measured manner and did not lose his temper. On the uncontested submissions of the Complainant, I find that he was dismissed without recourse to a disciplinary meeting or any fair procedures and it must follow that his dismissal was unfair. The complainant was out of work for a number of months following his dismissal but has found work elsewhere since. I recommend that the Company make a payment to the Complainant as compensation for unfair dismissal in the sum of €5,000 to cover his lost earnings and payment in lieu of notice.
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Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
CA-00055517-001
I recommend that the Company make a payment to the Complainant as compensation for unfair dismissal in the sum of €5,000 to cover his lost earnings and payment in lieu of notice.
Dated: 31st January 2024
Workplace Relations Commission Adjudication Officer: Michael MacNamee
Key Words:
Unfair Dismissal – Procedures not followed |