Complainant

Respondent

Parties

Marian Stefan  Boanca

Spectrum Telecom Installations Ltd.

Complainant

Respondent

Anonymised Parties

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Representatives

Self-represented 

 Peninsula Business Services Ireland

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-00062827-001

12/04/2024

The complainant states that he commenced employment as a rigger with the respondent on 1 November 2022 and his employment was terminated on 6 October 2023. He states that under the terms of his contract he was on a probationary period of six months.

The complainant states that the timing of his dismissal was linked to his partner’s pregnancy and his intention to take paternity leave. The complainant states that this concern is compounded by the lack of prior notice or documented performance issues leading up to the abrupt nature of his dismissal. 

The complainant states that on 27 September 2023, he participated in a video meeting which was presented as an annual review by his line manager, Mr AC. The complainant states that he was subsequently informed that the content of said review meeting was used as a justification for terminating his employment on 6 October 2023 with one week’s notice given.

The complainant asserts that the reasons given for his dismissal included the alleged misuse of company time specifically pertaining to personal phone usage. The complainant states that during the review meeting, he did admit that he occasionally used his phone during periods when work could not proceed or until other team members had completed their tasks. The complainant states that as company phones are exclusively issued to Persons in Charge of Work (PICW) who require constant communication with other PICW’s and Remote Integration (RIC), he found himself compelled to use his personal phone for work-related communications.

The complainant states that additionally, the review meeting brought up concerns regarding his motivation and the quality of his work, accusations which were not raised with him beforehand. The complainant states that he had a clean disciplinary record at that juncture.

In conclusion, the complainant states that the timing of his dismissal was linked to his partner’s pregnancy and his intention to take paternity leave. The complainant states that he has been unfairly dismissed.  

The respondent states that the complainant commenced employment as a rigger with the company on 1 November 2022. It states that in the Summer of 2023, the company began to experience a downturn in work and as a consequence took a decision to review its staffing levels. The respondent states that as part of this process, the HR Advisor for the respondent prepared a skills matrix to determine which employees should be retained.

The respondent maintains that the skills matrix was prepared on the basis of reports by the riggers managers including Mr SC. The respondent states that as part of this process, all rigging employees were rated across a number of skills as follows;

(i)               Commissioning skills

(ii)              Rigging skills

(iii)            Length of service

(iv)            Lateness

(v)              Attendance

(vi)            Quality of work

(vii)           Availability

(viii)          Driving and

(ix)             Disciplinary record

The respondent states that each employee was granted points on how well they meet the criteria. It states that the complainant ranked lower than many of his colleagues, in particular, with regard to commissioning skills, rigging skills and quality of work. The respondent states that overall the complainant was rated in the bottom three of the twelve riggers employed by the company at this time, with an overall score of 17 points.

The respondent states that on the basis of the skills matrix carried out, on 27 September 2023 the complainant was called to a performance review to have a final review of his performance. It was accepted by the respondent that it did not alert the complainant at this juncture that he was at risk of dismissal or that the performance review would inform this process. The respondent contends that in this review it was noted that the complainant’s performance had dropped and there were a number of areas which required improvement such as the quality of his work and his usage of phones on the work site. It was submitted by the respondent that the complainant agreed at this meeting that he had issues and required improvement in some of these areas.

The respondent asserts that based on the review and taking into account the complainant’s length of service which was under a year at that time, the decision was made to dismiss the complainant. The respondent states that the complainant was called to a meeting with Mr SC on 6 October 2023 at which point the complainant was informed that he was being dismissed for a number of reasons as set out in its letter of dismissal. The letter noted that the complainant was being dismissed for performance reasons and due to the reduced workload that was provided by the respondent’s client. The respondent states that in addition key consideration for the dismissal was the fact that the complainant had less than a year’s service although the complainant was not informed of this fact.   The respondent states that as per the skills matrix, there were other employees with a similar length of service to the complainant, however these employees rated higher in terms of skills vis a vis the complainant.

The respondent accepts that in the lead up to this decision, the complainant had made the respondent and its representatives aware that his partner was expecting a child which was done by requesting leave at attend a neo-natal doctor’s appointment. The respondent further states that at no point did the complainant officially request parental leave or inform management that he intended to take parental leave. The respondent accepts, however, that it had knowledge that the complainant was to become a father. However, the respondent refutes in the strongest of terms that the complainant potentially availing of his statutory rights to parental leave played any role in the decision of the respondent to terminate his employment.

The respondent states that company has always supported its employees in availing of their statutory rights and over the past two years, seven of the respondent’s employees have availed of their statutory right to parental leave. The respondent reiterates that it refutes that the complainant’s potential use of his statutory entitlement to parental leave played any role in his dismissal.   

The complainant has lodged a complaint under Section 8 of the Unfair Dismissals Act 1977 alleging that he was unfairly dismissed by reason that he proposed to exercise his right to paternity leave.

The complainant has less than 12 months service.

Section 2 of the Unfair Dismissals Act 1977 as amended sets out as follows:

2. Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons;

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of dismissal, had less than one year’s continuous service with the employer who dismissed him.

Section 6 of the Unfair Dismissals Act 1977 as amended sets out as follows:

6. (1) 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.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(d) the exercise or proposed exercise by the employee of he right to parental leave, force majeure leave, leave for medical care purposes, domestic violence leave or a request for a flexible working arrangement under and in accordance with the Parental Leave Act, 1998 or carer’s leave under and in accordance with the Carer’s Leave Act, 2001.

I note that the respondent company had a 58% decline in turnover during the financial year ending February 2024 resulting in a number of redundancies and lowering in staffing levels. I note that as part of a significant examination of Operations, the respondent undertook a review and prepared a skills matrix to determine which employees should be retained.

While the complainant alleges that he was dismissed on the basis of his intention to exercise his rights in respect of taking parental leave; I note that at no point did the complainant officially request parental leave or inform management that he intended to take parental leave. I note that the respondent accepts, however, that it had knowledge that the complainant was to become a father. I note that the respondent refutes in the strongest of terms that the complainant potentially availing of his statutory rights to parental leave played any role in the decision of the respondent to terminate his employment. I am cognisant from the written submissions that over the previous two years, seven of the respondent’s employees have availed of their statutory right to parental leave.

Having carefully examined the totality of the evidence adduced in the within claim, I find that the complainant has not established that his dismissal resulted wholly or mainly from the proposed exercise by the complainant of his parental leave rights. In those circumstances I find that the complainant was not unfairly dismissed pursuant to section 6 (2) (d).    

I find that the complainant has not established that his dismissal resulted wholly or mainly from the proposed exercise by the complainant of his parental leave rights. In those circumstances I find that the complainant was not unfairly dismissed.   

Unfair Dismissals Act