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Employee Awarded 1/3rd of Loss – WRC Prepared to Accept that One of Three Reasons for his Dismissal was his Application for Paternity Leave

The Complainant in Mark Maunders v Overhead Doors Ireland Limited ADJ-00033788 brought an unfair dismissal complaint against his former employer, alleging that he was dismissed for a combination of three reasons, one of which was because he had applied for two weeks’ paternity leave.

Facts: The Complainant commenced employment with the Respondent as a manager on 15th February 2021 and was dismissed on 24th May 2021. The Complainant gave evidence that he left secure employment to join the Respondent company and that the owners had informed him that they would be taking a step back from the business and wanted the Complainant to “run the show for them”. The Complainant informed the Workplace Relations Commission (“WRC”) that during his brief employment he hired six new employees, each of whom was issued with a written contract of employment containing a probationary clause. The Complainant himself was never provided with a contract of employment and his employment was not subject to a probationary period. It was accepted by the Respondent that the Complainant had not been given a written contract of employment.

The Complainant was dismissed after three months of employment. He was not issued with any correspondence or documentation providing any reason(s) for his dismissal and he informed the WRC that he had not been informed of any issues during his employment.

The Complainant gave evidence that he believed that he was dismissed because of the following three matters:

  1. He did not have a licence to drive a van in Ireland (although he had not been told that driving a van would be one of his duties)
  2. He was unavailable to stay late one evening to let a repair man out of the premises
  3. He had informed the owner that he would be taking two weeks’ paternity leave.

The Respondent’s evidence was that there was a personality clash between the Complainant and other employees, including key employees, and that he was dismissed during his probationary period. The Respondent’s position was that it had no alternative but to dismiss the Complainant.

Decision: The Adjudicator noted that as the Complainant had less than a year’s service, he could only consider his claim that he was dismissed because of his application to take paternity leave; he was unable to consider his claim on the basis of the other two grounds set out above. There is no requirement for an employee to have a year’s service in circumstances where his dismissal results wholly or mainly from “the exercise or proposed exercise by the employee of the right under the Paternity Leave and Benefit Act 2016 to paternity leave or transferred paternity leave within the meaning of that Act”.

The Adjudicator noted that the Complainant had “rightfully and legally assumed he was a permanent employee from the start of his employment” in circumstances where he had never been provided with a written contract of employment with a probationary period.

He noted the conflict of evidence between the Complainant and the Respondent regarding the reason(s) for the Complainant’s dismissal. The Adjudicator’s view was that if disagreements had existed between the Complainant and other employees (the evidence relating to which was only hearsay) then the Respondent was obliged to inform the Complainant and provide him with an opportunity to address the issue. The Respondent did not do so. In this situation, and in circumstances where the Complainant was not provided with a letter of dismissal setting out the reason(s) for his dismissal, the Adjudicator found that the Complainant was “entitled to the benefit of the doubt”. He noted that the Respondent did not address the Complainant’s reference to his application for paternity leave in their evidence. The Adjudicator acknowledged that it was “difficult to measure what contribution the Complainants request for paternity leave made to his dismissal”, but decided to award him one third of his loss on the basis that it was one of the three grounds put forward by the Complainant. The Complainant was awarded €3,200 on this basis.

Takeaway for Employers: This case highlights the importance of ensuring that employees are provided with written contracts of employment upon commencement of employment. Not only does an employer have obligations under the Terms of Employment (Information) Act, but there needs to be a written probationary period clause in an employee’s contract of employment in order for an employer to be able to rely on it. The decision also demonstrates the importance of providing employees with a clear reason(s) for dismissal. The absence of anything in writing setting out the ground(s) for dismissal in this case meant that the Adjudicator was prepared to give the Complainant the benefit of the doubt and accept the reasons that he put forward.

Link – https://www.workplacerelations.ie/en/cases/2022/september/adj-00033788.html

Authors – Jenny Wakely and Anne O’Connell

28th October 2022

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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