Worker

Employer

Anonymised Parties

A Sales Development Representative

A Digital & Financial Services Marketing Company.

Representatives

Self - Represented

Ms K Ennis BL instructed by Eoin Mullowney of Power Law LLP

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act,1969

CA-00061410-001

6th February 2024

The dispute concerns the alleged Unfair Dismissal of a multilingual Telephone Sales Representative (a French National) by a Digital Marketing / Financial Services Company. The employment began on the 11th April 2022 and ended on the 23rd January 2023.

The rate of pay was stated to have been € 2,900 Gross per month for a 40-hour week.

The Worker represented himself and made an Oral Testimony supported by some written materials and copy e mails.

In December 2022 he had gone home to France to spend Christmas with his Mother. On arrival he found her quite unwell and recovering very slowly from a major orthopaedic /knee operation. He was unable to return to Ireland, as planned, in January as his mother needed his daily domestic help to aid in her recovery.

He had made this clear to his Employers in a series of emails and telephone conversations. He had advised his immediate Manager on the 3rd January 2023. He attached medical materials & photographs regarding his mother’s condition. He was absolutely prepared to Work from Home, but this had proved unacceptable to his Employer.

A Disciplinary Meeting was held Remotely on the 17th January 2023 with a HR Manager, Ms A. The Worker was accused of failure to abide by agreed Attendance Procedures. In Addition, the Employer had checked the Call Register and felt that the Worker was not making sufficient efforts to actually Work from Home. The Call Register was submitted in evidence.

The Worker was completely upfront and did not try to hide anything. He was facing a very complex domestic situation in France. He was unable in January 2023 to exactly predict when he could return to Ireland. He felt that the Employer should have been sensitive to that.

The Employer was using very rigid Employment /Attendance & Disciplinary procedures against him and that was Unfair in his domestic predicament.

He had later offered (e mail of the 8th June 2023) to Return in June 2023 but also noted at that time that “the state of his mother makes the situation even worse”.

In summary the Employer had been very inflexible and almost inhumane in their treatment of him. He had required psychiatric medical help since the Dismissal.

The Employer gave an oral testimony from two Managers supported by a substantial Written Submission. The Employer was Represented by Ms K Ennis BL.

In essence, the Employer argument was that the Company had well defined Attendance Procedures which the Worker had not observed. He had developed a significant pattern of unexplained absences in January 2023 for which he could not provide a credible explanation. Even allowing for his difficult situation with his mother’s illness he could have made his case for exceptional Special leave, for example with his Employer. Ms A, the HR Manager, presented as being reasonable in her approach but had felt that the Worker was never properly engaging.

In addition, even for the days on which he claimed to have been working in January the number of telephone calls to potential customers/contacts was absolutely minimal and quite often non-existent.

The Employer had followed all proper procedures in an Investigation and Disciplinary meeting scenario. The Worker had failed to offer any realistic explanation or offers of mitigation. An Appeal had been offered post the Disciplinary Outcome meeting on the 23rd January 2023. He had not sought to avail of this Appeal.

In summary the Worker was well aware of the Company procedures but had chosen not to properly avail of them. The Dismissal was regrettable but was well within the Band of Reasonableness for an Employer in the Industry.

The Employer Representative cited case law in support principally Bunyan v United Dominions Trust [1982] ILRM 404 and Bank of Ireland v Reilly [2015] ELR229.

Ms Ennis for the Employer extensively cross examined the Worker. The Worker repeated his version of events and his very difficult domestic situation.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.  In this case the Oral testimony of the Parties was of importance.

3:1         The Legal Position

As the Worker did not have the required 12 months completed employment service to qualify for the Unfair Dismissal Act,1977 (UD Act,1977) the case was under the Industrial Relations Act,1969. (IR Act,1969) No argument was advanced to seek to avail of any exemptions to service requirements of the UD Act,1977.

Accordingly, the Adjudicator can only make a Recommendation as to how he or she feels the dispute can best be resolved. Guidance can be sought from SI 146 of 2000, Statutory Code of Practice on Grievance and Disciplinary Procedures.

However, there is extensive legal precedent that an Adjudicator cannot substitute his own view for that of a “Reasonable Employer” operating within the “Band of Reasonableness”. This is now Legally accepted to be a decision that follows normal procedures, a full Investigation, Disciplinary Hearing & Independent appeal with the Worker having been afforded all Natural Justice Rights of offered Representation and full exchange of all Information.

In this case there were no obvious flaws in the Employer case under any of these headings.

The Oral testimony of the Worker was heart felt and obviously genuine. He was without doubt very upset and concerned for this Mother’s illness.

However, the Employer had good Procedures and the Worker, possibly out of Stress and Family anxiety, failed to utilise these to make his case. As an illustrative aside, he left his WRC Reference to a date over 12 months post the Dismissal, and it was very unclear as to why he had never chosen to Appeal the internal Employer dismissal decision of the 23rd January 2023.

3:2       Summary

The Dismissal may have been somewhat harsh in the minds of some possible commentators but was, none the less, properly conducted from a HR and Industrial Relations viewpoint.

The Recommendation has to be that it is Accepted as the outcome.

None the less and on a completely ex gratia basis the Employer might favourably consider small ex-gratia of €250 to cover the Worker’s flight to Ireland to appear at the Oral hearing.

Unfair Dismissal, Small Ex Gratia