ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001549

Complaint for Resolution:

Date of Adjudication Hearing: 28/06/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complain to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant was employed as a construction worker by the respondent and suffered serious injury to his hand in an accident in the workplace in July 2015. He was on sick leave for a period and required surgery but was assured that on his return to fitness his job would still be there for him. He was paid wages until August 2015 and when this payment was discontinued he was asked about a likely date for a return to work.

The complainant indicated by text message to his employer that in October 2015 that he was fit to return to work.

However he received an email on October 19^th 2015 from the company accountant which read as follows;

Hi [name of complainant]

[Name of business owner] asked me to forward you a copy of your P45, please find same attached.

Kind Regards

[Name]

Certified Public Accountant

This was followed that same day by a telephone call telling him that a hard copy of the P45 would follow in the post.

This is how he was given notice that his employment was being terminated. He was given no opportunity to contest the decision.

The complainant had initiated personal injury proceedings against his employer and it was subsequent to this that he was informed there was no work available for him.

The complainant believes he was dismissed because of his personal injury proceedings contrary to section 6 (1) (c) of the Unfair Dismissals Act where it states that a dismissal will be deemed to be unfair if it results wholly or mainly from;

(c) civil proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened t make a complaint to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings…

Respondent’s Submission and Presentation:

The respondent did not attend the hearing.

Findings and Conclusions

I have considered all the relevant evidence that was laid before me, before and in the course of the hearing. I am satisfied that the respondent was on notice of the hearing and did not offer any acceptable explanation for non-attendance.

In order for a dismissal to be fair there must be some significant grounds to support disciplinary proceedings or other actions against the employee related to performance or conduct.

The onus under the Act falls on the employer to justify the dismissal. He did not do so to the complainant and in view of his non attendance at the hearing failed to avail of that opportunity to do so.

Secondly, in our system there are well established procedural requirements placed on an employer who is carrying out disciplinary action in order to protect the rights of the employee. These are not particularly onerous and are well known. They are referred to by such terms as fair procedure or natural or constitutional justice.

At the very least there should be some notice to an employee that he is at risk of termination and the reasons why. He should then be given a fair opportunity to make his case and have both the substantive matter and any proposed sanction objectively and fairly considered.

In this case nothing bearing any resemblance to such principles took place.

The complainant was not even told that he was dismissed; simply sent his P45 without any elaboration. There was no prior indication that he might be at risk, nor an explanation as to why, there was no hearing or right to representation, and there was no opportunity to contest the sanction.

It seems highly probable that the threatened civil action played a part in the decision to terminate the complainant’s employment. But even in the absence of such motivation the facts outlined above fully support the complainant’s case that he was unfairly dismissed.

I find that it was, in every respect, an unfair dismissal.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The complainant was unfairly dismissed and I award him €15,750 in compensation.

Dated:   10^th August 2016