Complainant

Respondent

Parties

Kyle Tate

Oak Central Recruitment Services trading as Masterlink

Representatives

Self represented

 Christopher Conway, General Manager and Marite Sproge, HRM

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00064569-001

01/07/2024

The Complainant began working with the Respondent as a general operative on 7th January 2023 and ceased working on the 19th June 2024. He was paid €13.25 per hour and was scheduled for a 40 hour working week.

The Complainant has made a complaint that he was unfairly dismissed and this has been denied by the Respondent.

The Complainant gave evidence on his own behalf. Mr. Christopher Conway, General Manager, and Ms. Marite Sproge, HR Manager, gave evidence for the Respondent.

The Complainant stated that he began working in the Ballycoolin branch of the Respondent on 7th January 2023 and that he got on well there.  He moved to the Damastown branch in March 2024 and in May was advised that he was going on a PIP as he was not reaching his targets.

On 19th June he was asked to attend a meeting and was told during the course of the meeting that his contract was being terminated as of that date. He was given a letter, with the previous days date, and told that the reason his employment was being terminated was due to “unsuccessful completion of probation period”.

The Complainant contacted the HR Manager the following day to say that he understood that he was no longer on probation and was trying to understand what was happening. He was told this would need to be investigated. A meeting was then arranged for 26th June at which the Complainant was told that a mistake had been made between the Floor Manager and the HR Department. The Complainant was told that he should not have been given that letter, that he was still employed and expected into work the next day. The Complainant responded that he had been unfairly treated and considered his employment terminated by the Respondent.

The Complainant, when asked if he was now in employment elsewhere, said that he had been successful in obtaining another job in July or August but on his first day he suffered a severe panic attack and had to go home. He has been severely affected with anxiety, which he attributes to his experience with the Respondent, and has been unable to work since as a result. He says that he believes he is owed paid days from the Respondent and wants his forklift licence from there. He says that he is owed 8 days annual leave and one weeks notice. He does not want to be re-instated in the role because he was fired and does not want to go back because of that. He now considers it a hostile environment.

The Respondent denies that a dismissal took place in this case at all.

It accepts that a mistake was made and that it should not have sought to terminate the Complainant’s employment. It also accepts the he is a permanent employee but says that there were issues around attendance and performance. The mistake arose because the Complainant moved to this facility in March and so this was input into the system as his start date, but it is accepted that his start date should have been recorded as January 2023 to reflect his time in another branch.

It was submitted on behalf of the Respondent that the mistake was admitted and once it was realised it was rectified because the Complainant was offered his job back right away. It was stated that he was not fired and he is still an employee on the Respondent’s books.

In response to the Complainant’s query about his forklift licence, the Respondent stated that the licences are specific to the company and cannot be issued or transferred as they are an in-house licence.

Based on the evidence and, in particular, the Respondent’s position that the Complainant is still considered an employee, the first question I must answer is if a dismissal took place.

Section 2 of the Unfair Dismissals Act 1977, as amended, (the “1977 Act”) provides as follows:-

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

The Complainant was called to a meeting on the 19th June 2024 and in the course of that meeting was given a letter dated 18th June 2024. That letter is signed by the HR Manager and states that:

“We can advise that you have been unsuccessful in your probationary period and as a result we have made the decision to terminate your contract: [….]

Your employment will cease with effect from 18/06/2024.”

The Complainant was told by the Respondent that his employment was being terminated and this was confirmed to him in writing.  The wording of this letter is clear and unambiguous. I find that it meets the above definition of “termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.” When the Complainant left his place of work on 19th June 2024 he had been told verbally and in writing that his employment had been terminated. In the circumstances, I find that the Complainant was dismissed on 19th June 2024.  

The next issue I must look at is whether or not that dismissal was unfair.

Section 6(1) the 1977 Act states that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(7) of the 1977 Act provides that in determining whether a dismissal is unfair, regard may be had:-

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice …”

The combined effect of the above-mentioned provisions is that the onus is on the employer to establish a fair dismissal. 

The Respondent accepts that a mistake was made and the Complainant’s employment should not have been terminated on the basis of his probation status. The Respondent stated that there were issues regarding attendance and performance which should be taken into account. However, no evidence was provided of anything which could be remotely viewed as an appropriate process leading up to a valid termination of employment on the grounds of poor performance. The Complainant mentioned that there was discussion of a personal improvement plan, but no such evidence was forthcoming from the Respondent. As the onus is on the Respondent to establish that the dismissal was fair, I find that the Respondent has not established this.

The Respondent accepted that a mistake had been made. It was stated that when the mistake was identified that it sought to remedy this. It is clear to me that this attempt to remedy the situation was done only after the Complainant raised and repeatedly followed up on his query about his probation status.

In all the circumstances, I find that the Respondent has not established that the dismissal was fair and therefore find that the Complainant’s complaint of unfair dismissal is well founded.

The Respondent sought to re-instate the Complainant on the 26th June 2024. The Complainant stated that he did not wish to return because of what had happened. Stating explicitly and unambiguously that a worker’s employment is terminated goes to the very root of the relationship between an employer and an employee and utterly undermines the implied term of trust and confidence that once existed. I find that it is entirely understandable and reasonable that the Complainant did not accept this offer of re-instatement. This then brings us to what redress is available to the Complainant.

Section 7 of the Unfair Dismissals Act which, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c)(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, 

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, 

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, 

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

Section 7(3) of the Act further states that:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”;

As I have outlined above, the actions of the Respondent have served to utterly undermine the implied term of trust and confidence between the parties and so I am satisfied that re-engagement and re-instatement are not appropriate remedies in this case. The leaves the option of compensation.

As is clear from section 7(1)(c)(i) compensation is for “any financial loss attributable to the dismissal”. Financial loss is defined as including actual loss and estimated prospective loss of income. The Complainant stated that he was at a loss of his income of €13.25 per hour for 40 hours per week. When questioned in relation to whether or not he had secured alternative work, he stated that he had gotten a new job “in July or August” but was unable to provide the exact date. He further stated that on the first day of his new job he suffered a severe panic attack, which he attributes to his experience with the Respondent, and has been unable to work since. 

Section 7 states that I may make an award for any financial loss attributable to the dismissal. The onus is therefore on the Complainant to establish what financial loss he suffered. In this case, the Complainant did not provide the exact date that he commenced new employment and there was no supporting medical evidence to show that his subsequent condition was linked directly to the actions of the Respondent. I am therefore not satisfied that he has particularised his financial loss.

Further, the Complainant was unavailable for work arising from incapacity after taking up a new position and so any loss suffered after this date cannot be taken into consideration in this forum. My role is to ascertain what financial loss is attributable to an act, omission or conduct by or on behalf of the employer. I am distinguishing this from any claim for emotional distress for which I do not have the jurisdiction to make an award.

As the Complainant has not satisfied me as to his financial loss, I am making an award under section 7(1)(c)(2) for an amount not exceeding 4 weeks remuneration in respect of the employment from which he was dismissed. This is calculated as €13.25 x 40 = €530 x 4 = €2,120.

Taking all of the factors set out above into account, I award redress of €2,120 compensation for the unfair dismissal.

Additional claims

The Complainant stated at the hearing that he was owed 8 days holidays and one weeks notice pay from the Respondent. However, no claim had been submitted in advance of the hearing for payments due under the Organisation of Working Time Act 1997 or the Minimum Notice and Terms of Employment Acts, 1973-2005. As the Respondent was not previously on notice of these claims and the relevant 6 month time limit to submit a claim to the WRC has passed, I find that I cannot address the request for these payments.

I find that the complaint is well founded and the Complainant was unfairly dismissed. I direct that the Respondent pay to the Complainant the sum of €2,120 being compensation for his unfair dismissal.

Unfair dismissal