ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004139
Complaints for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 20/10/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
In accordance with Section 41(4) of the Workplace Relations Act, 2015, and Section 11 of the Minimum Notice & Terms of Employment Act 1973, and Section 7 of the Terms of Employment (Information) Act 1994, and section 13 of the Industrial Relations Act 1969, 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.
Attendance at Hearing:
A Transport Company
Complainant’s Submission and Presentation:
The complainant stated that he worked for this company on this occasion from September 2015 to 8th July 2016 when his Manager rang him on 8th July at 7 pm to tell him his services were no longer required. He asked if he was sacked and she said "yes you are sacked". She told him to come in on Thursday 14th to collect his wages and P45.
He had worked for this company on and off for about 2 years. He never received any warnings.
He was never given details of my terms and conditions of employment. His Manager was constantly changing his routine.
He also stated that his Manager was constantly changing his hours at the last minute and also his routine. He stated that his verbal agreement with her was that he would work 5 nights per week from 8pm to 12 midnight or 2 am. The time varied depending how long it took to load.
He could be half way home when he would get a call and her husband would meet him with another lorry and he would have to go back up again to one of the loading areas. It would often be 7.30 pm before he was informed if he had work or not on that night, half hour before he was due in.
Respondent’s Submission and Presentation:
A detailed submission regarding the work practices in the company around best use of transport and drivers was made. The complainant worked as a night driver. In the evening time between 6 and 7.30pm the depots in Dublin would let the company know how much freight was in for collection. Lorries were then organised to collect goods. The complainant did not want to vary his routine or co-operate with the warehouse night manager who needed certain flexibilities. In fact the complainant always had an issue with collecting anywhere else than one depot, and actually worked three and a half hours average, when other drivers worked five to five and a half. He told the warehouse night manager that he was quitting after he was given a letter stating what was required of night drivers but then changed his mind and said he would do what was required of him.
Shortly after that, he refused to take a change over of lorries. The manager rang him and after he informed her that he was not doing what was required of him, she informed him that he could no longer be employed. The respondent felt that the complainant was going to do what he wanted to do and that was never going to change.
CA-00005844-001 – Minimum Notice
An employee is entitled to minimum notice except in cases of summary dismissal. The complainant’s claim of unfair dismissal under the Industrial Relations Act is dealt with below under CA-00005844-003. In the complainant’s case, I find that he is entitled to one week’s notice as provided for employees with thirteen weeks to two years service. I find the complaint to be well founded and I require the respondent to pay to the complainant the sum of €353.
CA-00005844-002 – Terms of Employment (Information) Act
It is common case that the complainant was not provided with written terms of conditions of employment within two months of commencement of his employment. The requirements of Section 3 of the Terms of Employment (Information) Act 1994 were therefore not complied with by the respondent. I find the complaint to be well founded and I require the respondent to pay to the complainant the sum of €353 compensation.
CA-00005844-003 – Industrial Relations Act
The complainant acted unreasonably in refusing to carry out a legitimate instruction from his employer and therefore contributed significantly to the difficulties in which he found himself. However, the employer acted unreasonably in not subjecting the complainant to fair and transparent disciplinary procedures. There is a statutory instrument S.I. 146/2000 which outlines simply what employers should do when dealing with disciplinary and grievances in relation to employees. It is well established by case law, and Labour Court determinations that employees, even those with short service must be given an opportunity to rectify or improve their performance before the ultimate sanction of termination of employment is imposed.
In this case, the respondent dismissed the complainant without due process and I find that the complainant was unfairly dismissed in the circumstances.
I have noted the contribution made by the complainant and I therefore recommend that the sum of €700 compensation is fair and reasonable in the circumstances of the case.
Dated: 5 January 2017