John is employed as a mechanic and has been working for the same employer for around six years. One day John arrives at work 10 minutes late and finds his employer, Bill, looking very unhappy. Bill says to John that he is sick and tired of John being late and then shouts at John, “That’s it – go home”. John works the standard 37.5 hour week from Monday to Friday and is paid $14.50 per hour. He receives a tool allowance for hours worked and minimum statutory leave entitlements as set out in the Holidays Act 2003. The employment agreement between John and his employer is not recorded in writing. As far as John can recall Bill has never commented on the time that John arrives at work.
What Should John Do?
John believes he has been dismissed.
All employment relationships are governed by the Employment Relations Act 2000 (“the Act”). The Act sets out that the parties to employment
relationships have obligations to deal with each other in good faith. It also sets out that all employment agreements must be in writing and provides the minimum details that an employment agreement must contain – such as hours of work, place of work and rate of pay.
The Act provides a number of grounds upon which an employee can raise a personal grievance claim against an employer including unjustified dismissal. It also stipulates time limitations within which an employee must raise his/her personal grievance claim. Outside of the statutory time limitations and unless the employer agrees to extending them, the employee may make application to the Employment Relations Authority (“the Authority”) for leave to raise the claim out of time. In John’s case, he has 90 days from the date on which he believes he has been dismissed.
To be successful in his personal grievance claim, John must first establish that he has in fact been dismissed. Once this has been established, the onus then shifts to Bill who must show that there was good cause to dismiss and that John’s dismissal was implemented in a procedurally fair manner.
What Should The Employer, Bill, Have Done?
Putting aside the issue of whether John’s lateness to work justifies dismissal, there are a number of basic elements to procedural fairness in the context of managing employment relationships that Bill may have failed to carry out. These are:
- John should have been warned of the misconduct and given an opportunity to improve or correct the conduct. If the misconduct is serious, John should also have been told that he may be dismissed for ongoing
- Bill should have carried out a full and fair investigation of the facts before taking any action and then communicated his findings to John.
- John should have been given a real opportunity to be heard and to offer an explanation as to the alleged
- The reasons for John’s dismissal should have been given to him before the dismissal was effected.
Turning now to the question of whether Bill had good cause to dismiss John in these circumstances, it is unlikely that the Authority and/or the Employment Court would consider
lateness to work as a justifiable basis for John’s dismissal. In December 2004, amendments to the Act saw the addition of a statutory test to determine whether a dismissal or other action by an employer is, are, or was justifiable. Simply, the objective test would consider whether Bill’s actions were those of a fair and reasonable employer (in all the circumstances) at the time that John’s dismissal occurred.
As it transpires and although John claims that he cannot recall Bill having spoken to him about persistent lateness to work, Bill believes the issue had been addressed with John before. On investigation, it became apparent that the reason
John was 10 minutes late every day was because his bus arrives outside the workplace at that time. Having considered John’s explanation for ongoing lateness,
Bill believes he reasonably requested John to catch an earlier bus and ensure that he was at work on time. Bill also believes that since this request it was necessary to speak to John on several occasions without any improvement on John’s part.
The next edition of this newsletter will examine (with reference to Bill and John’s situation) the remedies John may be entitled to if he is successful in his personal grievance claim for unjustified dismissal and the implications for Bill in not having a written employment agreement setting out the terms of the employment relationship with John.