Worker

Employer

Anonymised Parties

A Cabling Technician

An Employer

Representatives

Self

Laura Reidy The HR Suite

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003305

18/10/2024

The Worker was employed by the Employer as a cabling technician on 29th May 2023. His employment was terminated on 24th April 2024 and, as he has less than 12 months service, he has submitted this dispute as he believes he was unfairly dismissed.

The Worker’s case is that he was unfairly dismissed and unfairly treated by the Employer. He was dismissed on the basis that he had been absent without permission from the site that he was assigned to on 5th April 2024. He stated that he was late to site, rather than absent, and offered the reasons that he had not attended, which included carrying out work assigned by a supervisor and accompanying another supervisor to complete various tasks.

The supervisor that he accompanied was also disciplined for actions on this day, but he was given a first written warning only whereas the Worker was dismissed for the same actions. He feels that is grossly unfair, especially in circumstances where he did attend the site, albeit in the afternoon instead of the morning.

The Worker says that he had evidence that he was on site that day from a third party site manager, but the Employer refused to accept this evidence and completely ignored his position that he was just doing what his supervisor was telling him to do.

The Employer says that a fair disciplinary process was carried out in relation to the events of 5th April 2024. The Employer said that the supervisor in whose company the Worker spent the morning was not his direct supervisor, that he was obliged to attend the site at 8am but did not do so and did not notify his direct manager that he would either be late or would not be attending.

Two investigatory meetings were held and the Worker had every opportunity to present any evidence that he wished. Anything he did provide was considered as part of this process. It was only after the conclusion of the disciplinary process that the Worker sought to introduce the statement from the site manager. An appeal was available to the Worker, which he could have used to present this statement, but he did not avail of that option. As he did not avail of the appeal then he has not exhausted internal procedures as he is required to do.

The Employer says that there were inconsistencies in the Worker’s statements during the disciplinary process which led to a total breakdown of trust. Lesser sanctions were considered, but as there had been a break down of trust the Worker was dismissed. It was stated that this was an appropriate and proportionate outcome.

In relation to the sanction imposed on the other employee who was involved that day, the Employer said that no two cases are the same and there were mitigating circumstances in that case.

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

I am deeply concerned by the difference in the application of sanctions in this case. The Worker was dismissed, while the supervisor was given a written warning. As part of his submission, the Worker included the decision letter of the supervisor dated 10th May 2024. It is not apparent from examination of both decision letters why the Worker was dismissed and the supervisor was given a written warning. The Employer said that there were mitigating circumstances, but did not offer any further information on what those are and no mitigating circumstances are apparent from the documents provided. It is my view that the Employer failed to properly consider lesser sanctions at this stage in the process.  

It is well-established that parties are expected to effectively utilise internal workplace procedures before referral of a dispute to the Workplace Relations Commission. In this case, the Worker has not exhausted the internal procedures available to him as he did not avail of the opportunity to appeal his dismissal. I note that the decision letter communicating the Worker’s dismissal is dated 24th April 2024 and the statement he received from the third party site supervisor is dated 25th April 2024. I accept the Employer’s statement that this process had concluded when the Worker sought to introduce new evidence and that an appeal process was the appropriate remedy for this.

However, it is clear from both parties that there has been a complete breakdown of trust in the employment relationship. No useful purpose would be served by any recommendation for re-instatement or re-engagement as that is not the preference of either party. Similarly, any recommendation that would enable the Worker to proceed to exhaust an internal appeal would have no practical outcome in this particular case.

Therefore, strictly in relation to the unique facts and circumstances of this particular case, I am affording a degree of latitude in relation to the requirement to exhaust internal procedures and it is my recommendation that the Employer pay €2,000 to the Worker for failure to properly consider lesser sanctions.

Lesser sanctions – failure to exhaust internal procedures