Worker

Employer

Anonymised Parties

A Marketing Assistant

A Specialist Roofing Company

Representatives

Mr Cillian Forde / Mac Gollarnath

Ms Nicola Murphy of Peninsula Business Services Ireland

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act,1969

IR - SC - 00003230

03/10/2024

The employment began on the 5th September 2023 and ended on the 6th September 2024. The rate of pay was disputed between the Parties being either €28,600 or a claimed €39,000 for a 40-hour week.

The Worker was represented by Mr Forde/ Mac Gollarnath. AN oral Testimony was given supported by a written Submission. He had been interviewed for the position and agreed a salary of € 39,000 per annum. This salary was never paid at any stage during the employment despite repeated requests for same and a statement of earnings.

The Dismissal was completely peremptory and based on false allegations regarding performance. He was not allowed any representation or proper investigation of the allegations. He was not offered any Opportunity of Appeal. His representative pointed to SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary issues. It had been completely ignored.

The Worker disputed the Performance Allegations made and the selective use of Site & Job Photographs to substantiate the case.

The Employer as represented by Ms Murphy of Peninsula Business Services. Oral testimony was given by Owner, Mr I, and Manager, Mr H. A detailed Written Submission was relied on in support.

The rate of pay claimed - €39,000, was to facilitate a Visa Application for the Worker. This had been clearly understood at all times. Mr H, in his Oral Testimony, agreed that he had told the Complainant to use this figure on his Visa application. It was never the actual rate of pay which was, as stated, €550 per week. The Worker had accepted the €550 and worked without any complaint for the entire duration of his employment.

The performance issues /shortfalls were set out in detail and supported by photographic evidence. Leaving aside any Visa considerations the Worker had failed to deliver work of the quality expected and the Employer had decided to end his contract.

It was not an Unfair Dismissal -it was performance related issue.

In cross examination from Mr Forde/ Mac Gollarnath it was agreed that the ending of the employment had been handled in a somewhat arbitrary and abrupt manner without any real procedures, investigation or Appeal.

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

The background was that of an Employer not used to Irish Labour Legislation and a Worker equally unfamiliar. The issue of a Visa Application overhangs the entire process.

As a general point I would draw the attention of all Parties to Section 72 of the Workplace Relations Act,2015 but make no further comment.

The Worker did not have more than 12 months service and had not brought a claim under the Unfair Dismissals Act,1977 seeking to have his complaint considered as qualifying for an exemption to the 12-month rule.

 The question of the Dismissal of an employee with less than 12 months service has been considered at length by Ms Justice Costello in the Court of Appeal [2021] IECA 37 – O’Donovan v Over-C Technology Limited.

 It was accepted that dismissal during Probation was legally possible where it was clearly an issue of Performance without any suggestions of wilful wrongdoing on the part of the Worker. Any suggestions of this latter situation would require a complete and proper investigation/full procedure etc.

Nevertheless, Mr Justice Flood in the now headline case of In Frizelle v New Ross Credit Union Ltd, [1997] IEHC emphasised that in any Unfair Dismissal case “Natural justice must be paramount”

This case before us was characterised by extensive and sincere Oral testimony from a Worker not long in Ireland and working for an Employer, also of his own ethnic background.

Bearing in mind the legal instrument - SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary issues which effectively sets the guidelines for Dismissal cases – the ending of the employment here was peremptory and lacked basic Natural Justice as emphasised by Mr Justice Flood above.

Accordingly, some redress has to be recommended.

Unfair Dismissal, Short Service