Worker

Employer

Anonymised Parties

A Datacentre Technician

A named employer T

Representatives

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

 CA-00065777-001

 03/09/2024

On 3rd of September 2024 , the Worker referred the within dispute of Unfair Dismissal under Section 13 of the Industrial Relations Act  to the Commission alleging that he was dismissed by the respondent on 10 July 2024 without notice explanation or warning.

The worker submits that he was employed by the named employer T as a Datacentre Technician from 8th of April 2024.

He further submits that  the named employer T phoned him on 10 July 2024 informing him that his contract was terminated from Company S and stated that he  must not go back there with immediate effect.  He received no notice explanation or warning in this this regard.

When he asked what work he was to do he was told to wait, and they would contact him about work on another site, but he never heard any more from them.

The named employer T in the first place submitted that the worker was not an employee and therefore had no entitlement to claim unfair dismissal against them.

The named employer also submits that the workers contract was terminated for performance reasons stating that his resolved ticket numbers per day where extremely low, one of the lowest of the team and had a rework rate of nearly 50%.

It is submitted that these are key OKRs that the business is measured on. Each technician understands the expectations set and unfortunately after numerous attempts of trying to help the worker  achieve these numbers, he could not grasp it.

 As we our work is so fast paced and also in a live environment, we ended up losing 1 technician for far too long while trying to assist the worker. These are the reasons for contract termination.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The named employer T in the first place argued that the worker was not an employee and therefore had no entitlement to claim unfair dismissal against them.  In seeking to assert this the named employer advised the  hearing that the worker was instead an employee of another Company M Consultants Ltd with whom it had an arrangement under its Supplier Contract.   The named employer stated that those services were agreed under an Assignment Schedule, under which the Supplier was to supply the worker to provide services in connection with a  contract with Company S (the Client).

The named employer submits that any allegation of unfair dismissal should be made against M Consultants  Limited, who it submits  employed/engaged the Complainant.

The named employer T added that the worker also did not have the requisite 12 months’ service to be eligible to bring an unfair dismissal claim.

The worker advised the hearing that he was interviewed by the named employer and after being advised that he was successful at interview  he was told to contact an umbrella company,  Company P who works with the named employer and that he was given a profile of Director within this company.   The worker advised that he was given the option of which profile to choose by Company P either employee or Director, so he opted for the Director profile.  The worker states that it was this company which then came up with M Consultants ltd and assigned it under his profile. The worker advised the hearing that M Consultants Limited is a name that he was  given by the umbrella company, and he was advised by the named employer T that he needed a contract  with the umbrella company to get paid, and to deal with revenue only.

The worker states that his employment was with the named employer T from day one and that all of his interviews were with the named employer T and that he was introduced to their client Company S and engaged to carry out work for them.  The worker stated that he was interviewed by Company S but that it was always as a representative of the named employer T that he carried out the work.  He stated that it was the named employer  T who instructed him as to how to engage the umbrella company to ensure that he would get paid.   The worker states that he has no idea why the named employer T instructed him to  engage an umbrella company to do payroll.  The worker advised the hearing that it was the named employer T called him on 10 July 2024 informing him that his contract was terminated from Company S and stated that he  must not go back there with immediate effect.

Having considered all of the evidence adduced I am satisfied that ‘worker status’ is established as per the industrial relations framework and that an employment relationship existed between the  worker and named employer T who has been named in this dispute.

Notwithstanding the argument that the worker was not an employee of the named employer the named employer T went on to argue that the  worker was dismissed the grounds of gross misconduct pursuant to section 6(4)(b) of the Unfair Dismissals Act 1977; and/ on the grounds of capability pursuant to section 6(4)(a) of the Unfair Dismissals Act 1977.

The named employer T advised the hearing that  on 10 July 2024, Mr. W at Company S contacted Mr. H at the named employer T to inform him that he had received a complaint against the worker and alleged that they wanted the worker to be removed from the project with immediate effect.  On receipt of this email, Mr. H spoke to Mr. W at Company S who informed him that a complaint had been made against the worker and a colleague by a female cleaner, who alleged that the two men had acted in an intimidating manner and made inappropriate and rude comments to her.   In addition, the named employer T alleged that Company S was not happy with the Complainant’s performance on the project alleging that his  ticket numbers were one of the lowest in the team and he had a re-work rate of nearly 50% and allegedly asked the named employer T to terminate the assignment with immediate effect.

Accordingly,  the contract between the named employer T  and  M Consultants Limited was terminated. The worker was informed of this by telephone on 10 July 2024, by the named employer T during which he was told about the performance concerns but not the allegation of  harassment, and a copy of the termination letter was sent by email on 11 July 2024.

The named employed advised the hearing that the Complainant requested a copy of his termination letter, but did not dispute the termination of the assignment. It was explained to him that that the termination letter was issued to M Consultants Limited, because that was the contractual party, and the worker did not question this.

In considering this matter I am guided by S.I. No. 146 of 2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures), which sets out a basic procedure which an employer should follow prior to dismissing an employee. These include putting the allegations to the employee in writing in advance of a hearing, allowing the employee the opportunity to properly defend themselves at the hearing, permitting the appropriate right of representation, and allowing an internal appeal of any determination.   In essence, the Code of Practice requires that the procedures for dealing with workplace disciplinary matters (reflecting the varying circumstances of enterprises/organisations) must comply with the general principles of natural justice and fair procedures, also confirmed in jurisprudence.

Notwithstanding that the employment relationship has usually ceased in such disputes, there are numerous examples of the employment fora recommending awards of compensation in respect of dismissals (with less than one year’s service required for a complaint under the Unfair Dismissals Acts) where there has been a breach of fair procedures.  In particular, the Workplace Relations Commission and the Labour Court has consistently found that employers are required to afford due process to employees before a decision to terminate employment is taken, where there is less than a years’ service.

The Labour Court emphasised the importance of fair procedures in Beechside Company Limited t/a Park Hotel Kenmare v. A Worker, LCR21798, noting: “… it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

I note that the allegations allegedly made by the cleaner were never raised with the worker and he was never given a chance to address same or to defend himself.  I note that the worker was not even aware that any such allegations were ever raised against him.    I  also note that the allegations in respect of his alleged poor performance were never raised with him nor was he given a chance to address these or to defend himself.    I note that the worker was only notified of performance issues after the decision was made to terminate his employment.

Following my inquiries and having taken into account the evidence of the Worker it is apparent that the Employer did not follow any of the steps outlined above, and more particularly set out in S.I. No. 146 of 2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures), and simply dismissed the Worker without any prior warning or explanation and for no apparent reason.     Such a dismissal is clearly substantively and procedurally unfair.

I find that the named Employer in this case has disregarded the fundamental principles of fair procedure and natural justice in the manner in which it effected the Worker’s dismissal. I am satisfied that the named Employer’s handling of the entire matter breached the Worker’s right to fair procedures and natural justice, and he was dismissed without any due process and as a consequence of the same I recommend in favour of the Worker.

Accordingly, having considered all of the evidence adduced I recommend in favour of the worker, and I award him the sum of €3,000 in this regard.

I recommend in favour of the Worker and that the named employer pay him a sum of €3,000  for breach of his employment rights in respect of this dispute.