Case Study: Short Service Employee Successfully Claims Unfair Dismissal - Graphite HRM

Posts

07.06.2017

Case Study: Short Service Employee Successfully Claims Unfair Dismissal

 

Overview of the case:

The claimant was employed from 14th June 2014 until 5th February 2015 as a van/truck driver for a courier company. In December 2014, the claimant joined a trade union following advice received from a driving instructor.

In January 2015, a new Transport Manager was hired. On the first occasion the claimant met with her along with the respondent, he was given a contract of employment. The claimant was unhappy with the content of the contract as to him, it appeared the driver would be liable for particular elements/items that he felt the respondents insurance should cover. The respondent requested the claimant to sign the contract of employment, however, the claimant refused and advised he wanted to seek advice from his union.

In February 2017, the respondent asked the claimant if he had signed his contract. The claimant advised that his union advised him against signing the contract until there were amendments made to specific terms outlined in the contract. The respondent stated that “the contract is the contract”. The claimant advised he would need to speak to his union, the respondent again said “the contract is the contract” and “there is no point talking to the union”, claiming that he would have to sign the contract or go.

The following day, a colleague advised the claimant that the respondent had a conversation with him about the situation and advised him the respondent wasn’t happy. Following the conversation the claimant received a phone call from the respondent – the call was placed on loud-speaker. The claimant confronted the respondent for speaking about him, asking that “if he had something to say he should say it to his face”. The respondent replied “I do have a f*****g problem with you and the union, pack up that f*****g van and go home.” The claimant returned to the yard, handed over his keys and went home.

Subsequently, the claimant texted the respondent after allowing for some time for the respondent to cool down. The respondent stated that “he didn’t want the union to ruin his business and if he did not leave it he would have to let him go.” The claimant replied to say if that was what the respondent wanted, then he wanted his P45.

On 6th February, the claimant returned to the yard where he met with the respondent and was issued with his P45 and outstanding monies owed.

The respondent, on the other hand, told the Tribunal that the claimant had left the company of his own accord. They said he was unhappy about not being appointed as the Transport Manager and was making life difficult for the newly appointed manager.

 

Determination:

The Tribunal stated there was a clear conflict of evidence between both parties. The claimant stated he was dismissed because of his Trade Union membership. However, the respondent states the claimant had resigned from his employment.

The Tribunal concluded that on the balance of probabilities, given all the circumstances of the case, and in light of the fact that bank statements supported the claimant’s versions of events, they were satisfied that the claimant was dismissed because he was a member of a trade union. The claimant was awarded €12,805 under the Unfair Dismissal Acts, 1997 to 2007.

 

Learning points:

  • Section 2(1) of the Unfair Dismissal Acts sets the qualifying service an employee must have to take an unfair dismissal claim. It states that “in order for an employee to be able to take a claim for unfair dismissal they must normally have completed one year’s continuous service with the employer who dismissed him or her.”
  • Although the Act sets a minimum service requirement it also sets out exemptions. Section 6(2)(a) of the Act exempts service requirements where dismissal was solely related to one of the following:
  1. Pregnancy-related matters – The Adoptive Leave Acts 1995-2005, the National Minimum Wage Act 2000, the Parental Leave Acts 1998-2006, Paternity Leave and Benefit Act 2016, and the Carer’s Leave Act 2001.
  2. Trade union membership of activity
  3. The exercise or attempted exercise of rights under protective legislation

 

When considering the dismissal of a short service employee, it is important to ensure the reason for dismissal is not one of the above.

NOTE: The compensation for an unfair dismissal claim is up to a maximum of two years remuneration.

 

If you have any questions in relation to fair and unfair dismissals please contact the advice line on 01 886 0350.

Back to the blog
2017 Graphite HRM