ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00003636

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:             14/05/2025

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

The Worker contends he was unfairly dismissed from his employment.

Summary of Workers Case:

The worker was engaged by the respondent under the terms of the General Employment Permit administered by the Department of Enterprise, Trade and Employment.

Notice of the permit issued from the Department on 12 June 2023. The permit, as is normal, spanned an initial two year period valid from 1st August 2023 to 31st July 2025 and permitted the complainant to work for the Engineering company and no other employer.

Notwithstanding the validity of the permit from 1st August 2023 a contract of employment was not issued to the complainant until on 3rd October 2023 and entered the start date of employment as 2nd January 2024 and an expiration date of 2nd January 2026.  

Section 5 of the contract provided for a probation period of three months and a possible extension of the probation period of up to a further six months. 

The complainant was not informed of any extension of the probation period when he completed his first three months of employment and therefore reasonably assumed that he passed his probationary period. 

The complainant was summoned to a meeting with HR on 13th December 2024. There was no prior indication in advance that this meeting concerned his work performance or that there would be any disciplinary dimension to the meeting let alone a possible sanction. 

The complainant was told at the meeting that his performance was not to the satisfaction of the employer and that he was to be immediately dismissed. A letter dated the same day was issued confirming this decision but the purported reason for the dismissal is not re-stated in this letter. 

Section 24.4 of the contract provided for immediate dismissal in the event of serious misconduct but no such serious misconduct was ever alleged by the employer. 

Section 32 of the contract covers matters of work performance. Section 32.2 provides that if the employer is dissatisfied with the performance of the complainant that a number of graduated sanctions would follow, specifically a first warning (written or oral) and a final written warning before dismissal. 

No such prior first warning or final warnings issued to the complainant. During the meeting where the complainant was told of his dismissal, he was told that there was no point in appealing the decision despite Section 32.4 of the contract providing for an appeal process that the complainant could initiate within five days of the decision. 

The Union, on the complainant’s behalf submitted a letter of appeal on 16th December 2024 stating the grounds of his case as they are set out in again in this submission. This attempt at availing of an appeal process yielded no response from the employer. 

S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 sets out the basic standard expected of employments in the State in matters pertaining to disciplinary procedures. 

To some degree the promises made in the contract of employment correspond with the Code of Practice. However, in reality no fair procedures were afforded to the complainant.

Acknowledging that the complainant does not have the protections of the Unfair Dismissals Act the only recourse available to him from the Workplace Relations Commission was a complaint under Section 13 of the 1969 Act. 

The WRC acknowledged on 10th January 2025 the submission of such a complaint on 2nd January 2025 and further stated that the respondent had been notified of the complaint. 

On 5th February 2025, some five weeks after their prior correspondence) the WRC further wrote advising that on the basis of no response from the respondent they were obliged under Section 36.1 of the Industrial Relations Act 1990 Act to assume the employer’s consent to have the matter heard by the WRC adjudication services.

The relevant section of this Act reads as follows

36.—(1) An objection under section 13 (3) (b) (ii) of the Industrial Relations Act, 1969 , by a party to a trade dispute to an investigation of the dispute by a rights commissioner shall be of no effect unless it is notified in writing to the commissioner within three weeks after notice of the reference of the dispute to the commissioner has been sent by post to that party.

The respondent’s representative wrote to the WRC on 10 April 2025, that is, over three months after being notified of the complaint, indicating their opposition to the matter being heard by the WRC. It is contended by the Worker’s Representative that the hearing should proceed.

The manner in which this dismissal took place under two weeks before Christmas placed the complainant in a legally precarious position. With the assistance of his union an ultimately successful application was made to the Department of Justice and Department of Enterprise, Trade of Employment for a reactivation permit, to permit him to find alternative employment legally in the State. This permission issued from the Department of Justice on 20th February 2025 meaning that in total the complainant had to survive without legal means of supporting himself in the State for some ten weeks. 

The respondent seeks from the WRC a finding that fair procedures were not followed in line with the promise contained in the contract of employment and the above mentioned code of conduct and any further findings and recommendations it sees fit.

Summary of Employer’s Case:

The Complainant had less than 12 month’s service at the time of his dismissal.

The Complainant is not eligible to bring a claim under the Unfair Dismissals Acts 1977-2025.

The Complainant’s employment was lawfully and appropriately terminated.

The present proceedings are of a non-binding nature and no statutory breaches have occurred.

The Complainant commenced employment on 2 January 2024 in the role of Welder Fabricator.

The Respondent made a decision to terminate his employment on 13 December 2024.

The Complainant was notified of the decision and given notice in accordance with the contract and the Minimum Notice & Terms of Employment Acts 1973-2005.

All outstanding entitlements including final wages and holiday pay were paid in full.

The Complainant received a payment in lieu of notice in accordance with his contract of employment.

The Respondent’s position is that it acted within its legal rights to terminate the employment of the Complainant. There is no enforceable remedy under the Industrial Relations Act and it is  respectfully submitted that while the Workplace Relations Commission may offer commentary or recommendation, there is no jurisdiction under the Act to direct compensation, reinstatement or make binding findings of any legal liability.

Conclusions:

The Employer did not attend the hearing and the solicitor who attended made the legal point about the Worker not being eligible to avail of the Unfair Dismissals Acts.  That point is correct.  However, as the matter was referred under the Industrial Relations Act 1969, there is a facility to make a recommendation to resolve the dispute between the parties.   The dispute centres around the fact that the Worker was dismissed on 13 December 2024, was not given prior notice of what transgressions he had made, was not given the right to be accompanied and an appeal against his dismissal was not entertained.  In other words, no due process was afforded the Worker which goes against the Statutory Instrument S.I. 146/2000 which governs the due process all employees are entitled to in best practice employments.  The dismissal did not take into account the Employer’s own processes which allow for opportunity to improve and graduated sanctions.

In all the circumstances, I find that the Employer ought to have offered some settlement to the Worker when his employment was being terminated without fair procedures or due process or natural justice.  I recommend, to draw a line under this dispute the Employer should offer the Worker the sum of €5,850 compensation, being the approximate amount of loss the Worker suffered between jobs.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

I recommend the Employer should offer the Worker the sum of €5,850 compensation, being the approximate amount of loss the Worker suffered between jobs.

Dated:   07th of July 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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