Complainant

Respondent

Parties

Richard  Kudla

MCR Group Mcr Personell

Representatives

Warren Parkes Warren Parkes Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054053-001

07/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00054053-002

07/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054053-004

07/12/2022

The Complainant worked as a cleaner for the Respondent from 12th July 2021 until 10th July 2022.

CA-00054053-001

The Complainant complains that he was not provided with written terms and conditions of employment in breach of S7 of the Terms of Employment (Information) Act 1994.

CA-00054053-002

The Complainant says he was not paid one week’s minimum notice when his employment was terminated.

CA-00054053-004

He was not paid 100 euro monthly vouchers promised by the Respondent.

The Respondent says Mr. Kudla was employed as a cleaner from 12 July 2021 until 10 September 2021 when he resigned.

He then approached the Respondent to take up employment and began employment for a second period from 13th December 2021 until 10 June 2022 when he was dismissed.

CA-00054053-001

The Respondent says Ms. Kudla was issued with its terms of employment and employment contract, and employee handbook on 12th July 2021 and a further contract and terms of employment on 13th December 2021 by email.

CA-00054053-002

The Respondent received a complaint from Mr. O’ Neil of its client that Mr. Kudla was on site but not wearing his Personal Protective Equipment (PPE) safety glasses and gloves. He used abusive/foul language to a Manager when he was challenged as to why he was not wearing his PPE.

Mr. Kudla was called to a meeting with the Mr. Pat O’ Reilly and S McGowan when the specifics of the complaint was put to him. Mr. Kudla admitted not wearing his PPE and there was no reason for this. He accepted he told the manager to “pxxx off”.

Mr. Kudla was on six months probation at the time. He had previously received a written warning on 3rd June 2021 for safety related issues including failure to attend at compulsory toolbox safety meetings in May 2021. M. Kudla raised an issue about being grabbed by the manager.

An independent employee of the security company on site Mr. Kishore Mohan gave a statement that said he saw hand gestures or gesticulation, he saw no physical contact between Mr. Kudla and the manager.

The decision was made to summarily dismiss Mr. Kudla for gross misconduct and his employment was terminated immediately. The Respondent relies on S8 of the Minimum Notice and Terms of Employment Act 1973 that nothing shall affect the right of an employer to terminate a contract of employment without notice because of misconduct and S6 (4) of the Unfair Dismissals Act 1977 that conduct is a fair ground for dismissal.

CA-00054053-004

The Respondent are at a loss to understand the claim. Mr. Kudla contacted Mr. O’ Reilly regarding certain hours not reflected in his wages in June 2022 and these were calculated and paid in July 2022.

The Respondent says the vouchers scheme is a discretionary reward scheme to reward excellence and attendance. Work records are analysed on a monthly basis. Mr. Kudla received vouchers for all months except January, April and May 2022. In January and April 2022 Mr. Kudla was absent without leave for two days without any explanation. In May 2022 Mr. Kudla did not attend the compulsory toolbox talks and was failing to wear his PPE and did not receive a reward voucher.

The Respondent says the complaints are without merit and should be dismissed.

CA-00054053-001

I have heard and considered the submissions and oral evidence of the parties.

The Complainant claims he was not provided with written terms and conditions of employment. The Respondent has provided an email to show the employment handbook containing policies and procedures was sent to the Complainant on 12th July 2021.

The complaint is not well founded.

CA-00054053-002

The Complainant claims a breach of the Minimum Notice and Terms of Employment Act 1973 when his employer did not pay one week’s notice following the termination of his employment on 10th June 2022.

The Complainant was given a formal written warning on 3rd June 2022 for failing to attend compulsory safety meetings and toolbox talks and being asleep outside of his break period on 2nd June 2022. The warning remained on his record for 6 months.

On 10th June 2022 there was a report the Complainant abused a senior manager when he was asked to leave the site following a health and safety breach as he was not wearing his full PPE. The Complainant alleged the manager grabbed him, however, this was not seen by a security guard nearby. The Complainant admitted not wearing his PPE and swearing at the manager. He was summarily dismissed for gross misconduct.

Statutory Instrument 146 of 2000 Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 applies to disciplinary procedures in the workplace. Fair procedures were not applied by the Respondent in relation to the incident. The Complainant was not given formal notice that he was at risk of dismissal due to the incident on 10th June 2022. He was not given notice of a disciplinary meeting in advance, nor an opportunity to bring a trade union representative or colleague and full opportunity to respond to the allegations. No disciplinary procedures were applied.

The complaint is well founded. I award the Complainant one week’s notice pay of 490.88 euro gross.

CA-00054053-004

The Complainant complains that he was not paid 100 euro vouchers monthly. The Respondent says the vouchers are paid for full attendance and excellence at work. The Complainant was not paid vouchers when his attendance and performance did not qualify.

The Respondent were unable to provide a policy setting out how employees qualify for the vouchers, however it is essential that employees understand how this benefit applies. I recommend the Respondent prepares a policy on this benefit as soon as possible.

The complaint is not well founded.

CA-00054053-001

The complaint is not well founded.

CA-00054053-002

The complaint is well founded and the Complainant is awarded one week’s notice pay of 490.88 euro gross.

CA-00054053-004

The complaint is not well founded.