SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
- AND -
Chairman: Mr Haugh
Employer Member: Mr Marie
Worker Member: Ms Tanham
1. Unfair Dismissal
2. This case concerns a claim of unfair dismissal.
- The Worker said he was called to a disciplinary meeting, was not advised of the need for representation and was dismissed without any warning.
- The Company said that due to the number of absences of the Worker, he was not fulfilling the role he was hired to do and the Company had no option but to dismiss him.
On the 30th August 2016 the Worker referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.
A Labour Court hearing took place on the 1st November 2016.
3. 1. The Worker was not given induction training when he started with the Company and was immediately sent off site.
2. He completed a pre-medical questionnaire and advised the Company he was under investigation for heart related issues.
3. The Company did not follow the disciplinary procedures or probationary reviews in line with their own policies. There was no reason given for the dismissal.
4. 1. The Worker was given induction training and was assigned to a buddy.
2. It was made clear to the Worker at interview stage that he was being hired to work on a customer site.
3. He was dismissed because he could not fulfil his role due to the number of absences he had.
Background to the Dispute
The Worker was employed by the Company on a permanent basis as a Level 2 Engineer. He commenced employment on 28 April 2016; his employment was terminated on 20 June 2016. The Worker claims that his dismissal was unfair. He is seeking an award of compensation and an admission from the Company that it failed to comply with its own procedures.
The Parties’ Positions
The Worker submits that his issues with his former employer date from the commencement of his employment. He states that he was not given a full induction but rather was sent immediately (within 2 days of starting with the Company) to work at a client’s site without any prior training. The project he was assigned to had been underway for some time and he had a number of difficulties in familiarising himself with the tasks he was responsible for because he didn’t receive sufficient training in the client’s systems and was not granted sufficient access privileges in a timely fashion. Generally – he told the Court – he felt out of his depth, unsupported and even undermined by his line manager on this project. Although, he had notified his manager of the difficulties he was experiencing, the Worker’s view is that insufficient support was forthcoming from the manager.
The Worker has a history of underlying health problems which he advised the Company of when he completed a pre-employment health questionnaire. He is required to take medication on a daily basis which sometimes causes an adverse reaction. He had a number of periods of absence as a consequence while employed by the Company. He was also absent for a number of days because an injury he sustained while doing DIY at home.
On 10 June 2016, the client’s site manager advised the Worker that he informed the latter’s line manager that the client no longer required a Level 2 Engineer on site. The Worker had a follow up meeting with his line manager on 13 June 2016. He alleges that his manager advised him at the outset of the meeting that he was being dismissed. The Worker submits that he had not been advised in advance that the meeting of 13 June 2016 was to be a disciplinary meeting or that a possible outcome of the meeting is that he could be dismissed. He further submits that he had not been given any prior warnings about his performance or attendance.
On 14 June 2016, the Worker contacted the Company’s HR department to advise that he wished to appeal the decision to dismiss him. He followed up with further emails on 16 June 2016. Having received no replies to his emails, the Worker eventually made contact by telephone with the Company’s HR Officer. Thereafter, he received a letter dated 16 June 2016 confirming his dismissal and a termination date of 20 June 2016. The letter does not state a reason for the dismissal and failed to mention that the Worker had a right of appeal.
The Company submits that the Worker was afforded a full induction by its HR Officer on the day he commenced employment i.e. 28 April 2016. The Company submits that the Worker did not commence on work at the Client’s site on 5 May 2016. On that date, according to the Company’s submission, the Worker received a detailed email from the Company’s Head of Professional Services ‘virtually’ introducing the Worker to the Client’s on-site Project Manager along with all contact details etc he would require. The Company lays particular emphasis on the fact that the Worker is a very experienced Engineer, that he knew at all times he was being recruited to work at a specific client site and that onsite training would take the form of direction from the Company’s staff involved in the project. The Company told the Court that the Worker was on onsite for a total of only 11 days; he was absent from work for 11.5 days during his period of employment with the Company which included a number of uncertified sick days.
The Company submitted a different version of the events of 13 and 14 June than that outlined by the Worker. The Company states that the Worker’s line manager telephoned the Worker on 13 June and asked him to attend at the Company’s offices the following day to discuss his absenteeism. At the meeting on 14 June, the Company submits that the line manager reviewed the Worker’s attendance and absenteeism record and advised that the Company would be terminating the Worker’s contract because of the Worker’s level of absenteeism which meant that the Worker was not fulfilling the role he was employed for. In the Company’s written submission to the Court, the Company stated: “[W]e had no option but to terminate his employment as we found him to be unreliable. We had a service to maintain for the customer and we couldn’t rely on him to be there.” The Company further claims that it dealt with the Worker’s appeal by way of a review conducted by HR that upheld the decision to dismiss.
Undoubtedly, the Worker did not help his own cause. His level of absenteeism – through a combination of certified and uncertified sick leave – was, by any measure, excessive given the short duration of the period for which he was employed by the Company. Although the Company’s induction may have been less than ideal, the fact is that the Worker is a very experienced Engineer and he knew that he was being recruited to work onsite for a named client of the Company. With his level of expertise and experience he should have had the wherewithal to work with his Project Manager and his own Line Manager to overcome any difficulties he was experiencing at the commencement of his work for the client.
Nevertheless, the Company’s approach to dealing with the Worker’s absenteeism and its decision to dismiss him instantaneously amount to a serious breach of fair procedures. The Company presented nothing to the Court to substantiate its claim that the Worker had been told in advance of the meeting on 14 June 2016 that he was coming to what was essentially a disciplinary meeting to discuss his level of absenteeism and that a possible outcome of that meeting could be a decision to terminate his employment. The Worker was not afforded an appropriate right to appeal. The Court does not accept that a paper exercise conducted by the Company’s HR department and which simply affirmed the original decision to dismiss can be regarded as an appeal proper, particularly when the decision to affirm the Worker’s dismissal was taken by a person who accepts that she advised the original decision maker in respect of the dismissal.
The Worker’s termination date was 20 June 2016. His agreed salary was €33,000.00 per annum plus up to €2,000.00 bonus. He has had a number of temporary contracts between the date of termination and the date of hearing. However, he was unemployed until the end of July 2016. In all the circumstances the Court recommends the Company pay the Worker compensation of €4,000.00, being the equivalent of approximately 6 weeks’ pay.
The Court so recommends.
Signed on behalf of the Labour Court
2nd December, 2016.Deputy Chairman
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.