ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00047735

Parties:

Complaints:

Date of Adjudication Hearing:  28/11/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015  and/or Section 8 of the UnfairDismissals Acts, 1977 - 2015,and Section 12 of the Minimum Notice & Terms of Employment Act 1973 and Section 23 of the Industrial Relations (Amendment) Act 2015, following the referral of the complaints  to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant contends that he was unfairly dismissed without notice and he was not given the correct rate of pay.

Summary of Complainant’s Case:

The Complainant gave evidence by affirmation summarised as follows:

He stated that he received a phone call from the Foreman Mr D and was dismissed without notice.  He stated that he was hired as a Carpenter, and carried out many duties.  He was on €16 per hour which he stated was not on the correct rate for the job.  He agreed he had been late on occasions but he disputed the evidence of the Respondent that he had received many warnings.  He had many complaints about the condition of the truck he was driving for the Respondent. 

Summary of Respondent’s Case:

The Owner of the Company gave evidence on affirmation, summarised as follows:

The Complainant was late to work on a consistent basis throughout his employment.  He was given many warnings.  When he was given the first verbal warning he became abusive to the Foremen.  Between 21 February and 25 May 2023, 41 incidents of lateness were recorded.  He was given a final warning on 25 May 2023.  Between 26 May and 10 July 2023 55 lates were recorded.  The Complainant’s employment was terminated on 10 July 2023 for his inability to come to work on time.  It is submitted that in accordance with Section 6 (4) of the Unfair Dismissals Act 1977 the dismissal of the Complainant was not an unfair dismissal as it resulted from the capability and competence of the employee, due to his inability to come to work on time.

The Complainant was not given payment in lieu of notice as he walked off the site when he was given his final warning, he caused damage to the truck he was driving.  He was paid €16 per hour, which is above the rate for unskilled workers.  He was not entitled to a higher rate.

Findings and Conclusions:

CA-00058751-001             Unfair Dismissals Act 1977

I accept the evidence in relation to the number of times the Complainant reported for work late.      A reasonable employer would not be expected to put up with an employee who does not routinely turn up to work on time.  I accept the evidence that the Complainant was warned on many occasions.   I note the absence of a process to formalise the situation.  Statutory Instrument S.I. 147/2000 sets out best practice in relation to disciplinary and grievance procedures.  The exercise of good practice disciplinary procedures involves written advice to the employee of the risk to his employment, his right to be heard, to be represented and to appeal.  No such process was afforded to the Complainant in this case.   I find that in the absence of due process, the Complainant in this case was unfairly dismissed.  I note the consistent lateness of the Complainant and his inability or unwillingness to improve.  I find he contributed 100% to the situation.  I therefore award nil compensation.

CA-00058751-002             Minimum Notice & Terms of Employment Act 1973

Section 4 of the Minimum Notice and Terms of Employment Act 1973 provides for minimum periods of notice an employer is obliged to give in order to terminate the contract of employment of an employee who has been in continuous service for a period of thirteen weeks or more as follows:

(2) the minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –

(a) if the employee has been in the continuous service of his employer for less than two years, one week…

Given the Complainant’s entitlement to minimum notice, which is in this case one week’s pay, I uphold his complaint.  I require the Respondent to pay to the Complainant the sum of €640.

CA-00058751-003             Industrial Relations (Amendment) Act 2015

I accept the evidence that the Complainant was employed as a new entrant operative, and he had less than two years’ service.  I find he was on the correct applicable rate, and I find the complaint to be not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00058751-001             Unfair Dismissals Act 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the reasons cited, I find the complaint to be well founded and award nil compensation.

CA-00058751-002             Minimum Notice & Terms of Employment Act 1973

Section 12 of the Minimum Notice & Terms of Employment Act 1973 requires that I make a decision in relation to the redress provisions of that Act.

For the reasons cited, I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €640.

CA-00058751-003             Industrial Relations (Amendment) Act 2015

Section 23 of the Industrial Relations (Amendment) Act 2015 requires that I make a decision in relation to the redress provisions of that Act.

For the reasons cited, I have decided the complaint is not well founded.

Dated:   12/02/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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