ADJUDICATION OFFICER DECISIONS

Adjudication Decision Reference: ADJ-00002195

Complaints for Resolution:

Date of Adjudication Hearing: 25th May 2016.

Workplace Relations Commission Adjudication Officer: Sean Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015, Section 8 of the Unfair Dismissals Act 1977, Section 39 of the Redundancy Payments Act 1967 and Section 11 of the Minimum Notice & Terms of Employment Act 1973, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The Complainant was employed by the Respondent from December 2007 to 10^th September 2015 and his weekly rate of pay was €213.12c (€11.84c per hour x 18 hours per week).

The Complainant was submitting that he had been unfairly dismissed by the Respondent, or in the alternative he was made redundant by the Respondent without any redundancy payment being afforded to him.   In addition the Complainant was submitting that his employment had been terminated by the Respondent without him being afforded his minimum notice entitlements.

Summary of Complainant’s Case:

The Complainant said he was employed by the Respondent from December 2007 in named stores of the Respondent.

The Complainant said that he decided to go to College in September 2015 and he specifically chose a named IT College in the same area as the Respondent Store he worked in, so that he could continue to work there, as he needs to work part-time while in College.   The Complainant spoke with his named Line Manager in March 2015, in relation to this, when he was in the process of making his decision and he specifically stated that he wished to continue working with the Respondent at the weekend and the Manager confidently stated he did not believe there would be a difficulty with regard to this: in fact the Manager assisted the Complainant in relation to his College Application and in particular advised him in relation to interviews with the College over the following few months.

In the July/August period of 2015, the Complainant received confirmation of his acceptance at the named College and he confirmed this to his Line Manager and continued to work with/for the Respondent.   The Complainant said that during this period a number of new workers were employed by the Respondent in the Store he worked in and he named 4 such workers.

While at work on 4^th September 2015, the Complainant was called to a meeting with his Line Manager; who informed him that there was no more weekend space available and that as the Complainant had a “weekday” contract of employment, and as he could no longer fulfil those hours his contract of employment was being terminated.   On the same date the Complainant sent an email to the HR Department in respect of the matter, confirming his dissatisfaction with the position and noting that 3 new weekend employees had commenced employment in the Store he was employed in over the previous few weeks and that he had not been notified of that availability.   He further stated that he needed work and that as the Respondent had left it so late to inform him of the termination of his employment he would find it very difficult to get other suitable work.   The Complainant was not rostered for work for the following week.

The Complainant said it is important to reiterate that he only had a 15 hour per week contract of employment and he was available to work those hours from 1.00pm on Mondays, 4.00pm on Thursdays and all day Friday, Saturday and Sunday and the Complainant made this clear to the HR Department of the Respondent in an email to a named member of HR on 10^th September.

The response that the Complainant received to the above listed emails that that, firstly, he would have had to have put in a ‘flexible hours request’; he said that this had not been previously at any time communicated to him, but he said that in any event his discussions with management in the Store he worked in was his request for this - or, secondly to seek work in another store, however this was not possible as he was attending College in the same area that he worked.

The Complainant then received a letter from the Respondent on 8^th September 2015, stating that he was leaving their employment; as this was not the case he had to email a named Manager to correct the record/position.

The Complainant said that the Respondent sent him his P45 and final pay statements, after the termination of his employment via his housemate and colleague in the employment and he said that this could have resulted in a breach of confidentiality and/or his not receiving these in a timely fashion.

The Complainant said that in summary his contract of employment was terminated without any efforts whatsoever being made by the Respondent to facilitate his part-time contract of employment and despite him being told by management when he applied for College that there would be no difficulty.   The Complainant said he does not believe that no weekend work was available as new employees were employed to so work around that time; he said that however even if that were the case he could have fulfilled his contract of employment working hours from Monday to Friday, with 19.50 hours that were available from him and that fact was made known to the Respondent.

The Complainant said that as regard minimum notice, as he was employed by the Respondent since 2007, he was entitled to 4 weeks notice when his employment was being terminated by the Respondent.

The Complainant said that notwithstanding the foregoing, if it is the case that no working hours were available for the Complainant either during the week or at the weekends, so that he could fulfil his contracted hours of work as he was willing to do, then a redundancy situation existed and he should have been paid his legally entitled redundancy payments.

The Complainant gave detailed evidence of his efforts to secure alternative employment and mitigate his losses

Based on the foregoing the Complainant sought favourable decisions.

Summary of Respondent’s Position:

The Respondent was not present or represented and they sent no submissions.

Findings and Decision:

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

Section 8 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.

Section 39 of the Redundancy Payments Act 1967, requires that I make a decision in accordance with the provisions of that Act.

Section 11 of the Minimum Notice & Terms of Employment Act 1973, requires that I make a decision in accordance with the provisions of that Act.

I have carefully considered the evidence and the submissions made and I have concluded as follows

The Respondent was not present or represented at the Hearing and they sent no submissions, accordingly I only have the evidence and submissions of the Complainant to rely on in these matters.

Based on the uncontested evidence of the Complainant I find and decide as follows in relation to the specific complaints under the 3 Acts:

Unfair Dismissals Act 1977:   CA-00002991-001

Based on the uncontested evidence of the Complainant (see above) he was unfairly dismissed by the Respondent in breach of his rights under the Act.

In relation to the appropriate redress I have carefully considered all the facts and evidence, including the views expressed at the Hearing and I have concluded that due to the facts and circumstances of the case there is an absence of the minimum level of trust necessary to sustain an employer and employee relationship in the instant case and that accordingly the only appropriate redress is compensation in this case.

The Complainant was unfairly dismissed by the Respondent and accordingly I require the Respondent to pay the Complainant compensation in the sum of €7,500.00c within 6 weeks of the date of this decision.

Redundancy Payments Act 1967: CA-00002991-02:                                          .

As I have already found and decided that the Complainant was unfairly dismissed and awarded him compensation for that unfair dismissal under the Unfair Dismissals Act, it is not possible necessary or appropriate for me to consider that dismissal or award him redress again under this Act in relation to that dismissal, and I note that the Complainant and his Representative accepted that this is the case. Accordingly I must find, declare and decide that the complaint under the 1967 Act is not well founded; it is rejected and is not upheld.

Minimum Notice and Terms of Employment Act 1973:   CA-00002991-03:                                              

Based on the uncontested evidence of the Complainant his employment was terminated by the Respondent without any notice or pay-in-lieu of notice.   Accordingly I must find, declare and decide that the complaint under the Act is well founded and it is upheld.   Based on his service the Complainant was entitled to 4 weeks notice, in the sum of €852.48c, and I require the Respondent to pay him that sum within 6 weeks of the date of this decision.

Dated: _           29^th August 2016