ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002872

Complaint for Resolution:  

 Date of Adjudication Hearing: 02/09/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Context and Background: This is a case in pursuance of a claim for Unfair Dismissal .The complaint was received on 12 April, 2016.

Procedure: 

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint 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.

Attendance at Hearing:

Respondent’s Submission and Presentation: 

The respondent disputed the claim for Unfair Dismissal. The complainant commenced work with the respondent on a two day week on 7 May, 2014. He was already working in a sports shop for the remaining three days of the week. He was paid 12.50 euro per hour.

The complainant got on well at the company and following a period of training in programming procedures relevant to the sheet metal machines, the complainant increased to full time working with a corresponding increase in salary. The company had 16 workers during the economic boom and had reduced to 3-4 employees.

The company made a decision to take on an apprentice in sheet metal. It was necessary to take on an apprentice as the trade is not plentiful in the marketplace. As a consequence of this development and a down turn in the business, there was not enough work for the complainant and he was placed on a three day week in early October 2015. The respondent then gave the complainant one weeks notice and laid him off on 22 October 2015. A P45 was generated and issued.

The respondent submitted that the company had made redundancies in the past but had never placed an employee on “Lay Off “before. He submitted a snapshot of the weekly reports, where in the run up to the “ Lay Off “ of the complainant, the Business was down 22,000-26,000 euro per week .The business was not profitable and he was not getting paid . The respondent denied any deliberate underpayment to the complainant. In addition, he denied that the cessation of employment was attributable to the raising of these issues.

The respondent apologised to the complainant for any mix up as he had not intended to terminate his employment.

On August 23, 2015, the respondent solicitor wrote to the complainant seeking details of his successive employment and copies of his payslips. There was no response to this letter. The respondent wished to reach a resolution in the case on the day of the hearing and made an offer of settlement, which was not accepted by the complainant. The respondent forwarded his response to the table of loss some days after the hearing .He took issue with the projected loss recorded by the complainant.

Complainant Submission and Presentation: 

The complainant undertook a range of roles and duties at the respondent business. He did everything bar welding. In late 2014, he changed from working a 7 day week, involving two jobs to a 6 day week for the respondent. He enjoyed his job but there were a number of changes mid way through 2015. A welder who had been there for 10 years left and an apprentice welder was hired.

On October 1, 2015, the complainant was reduced to a three day working week. This should have amounted to an upward alignment of hours given the structure of the business opening hours, but he was short 1.5 hrs in pay per week. There were three other employees but his hours were the only ones reduced .He received social welfare for the remaining days.

The complainant did not have a contract of employment and approached the respondent on the deliberate underpayment in his wages. .There was also a discrepancy in dates on payslips on 14 October, 2015, where 2014 was detailed rather than 2015.The complainant raised this issue but felt he was targeted by the respondents misdirected anger in return.

On 15 October 2015, the complainant was informed by the respondent that his employment was being terminated on one weeks notice .He was dumbfounded as he understood that he had an agreement on his working arrangement at the business. He tried to reason with the respondent but he was informed that the business was in debt.

This had a serious impact on him, as his wife was on maternity leave, the experience was a blight on his C.V and he had suffered a 6,839 euro loss in gross pay over a 44 week period .He submitted that he was highly aggrieved by the reduction in the working week which was followed in rapid succession by termination of employment .He contended that he had been unfairly dismissed and sought the redress of compensation.

The complainant succeeded in getting new employment on 5 November, 2015, but submitted that there was a pay differential in the new position, which he sought to be taken into account. He submitted a table of loss.

Decision:

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. I have considered carefully the submissions and presentations of the parties.

A Dismissal is defined in Section 1 of the Unfair Dismissals Act 1977, as

“Termination by his employer of the employees contract of employment with the employer, whether prior notice of termination was or was not given to the employee “

Section (6) of the Act provides that:

“in determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

Subsection (4) refers to

(a) Capability

(b) Conduct

(c) Redundancy

(d) Continued employment would amount to a contravention of a statute

In the instant case, I was immediately struck by the jointly reported good working relations between the parties prior to the events of mid October 2015. It is clear that the complainant expected to have a full career ahead of him at the respondent firm and this came to an abrupt end.

I accept the evidence submitted by the respondent that business had declined and the company was in debt. However, I find that the respondent did not have the required knowledge, nor did the company seek advice on how to administrate the stated intention of the company to place the complainant on temporary “Lay Off “following his re-allocation to a three day working week. I accept that the respondent did not intend to effect a redundancy situation.

I can accept that the respondent was deeply preoccupied with the continued threat to the viability to his business, however, the complainant was deserving of a more co ordinated and informed approach. The series of events was not aided by the absence of a contract of employment, grievance procedure or any joint discussions prior to the issuing of one weeks notice which signalled the termination of employment on 22 October, 2015. Neither was recourse made to the RP9 form which offers an outline on options around “lay off”/Short time” and possible courses of action open to both parties.

Both parties made honest and cogent submissions to the hearing. The respondent wished to make amends for the “ muddled “ approach on his intention to execute a short term “ lay off” to give the company some breathing space rather than a unilateral termination .

The complainant had moved on in his working life but had been financially disadvantaged by his dismissal.

In my view, the parties both suffered from an overly casual approach to employment in this instance. A contract, in written form should have captured the stated intention of the parties and the statutory imperatives from the outset. It could, then, have served as a reminder of those intentions during the crucial period of October, 2015, in this case. That opportunity is lost.

However, the burden of proof falls on the respondent to show substantial grounds which justify the dismissal.

Section 6(1) of the Act states that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”

The employer is required to act in a reasonable manner.

I have considered all the circumstances described in this case. I find that a dismissal occurred in accordance with Section 1 of the Act.

While, I must acknowledge the efforts made by the respondent to reach out to the complainant to resolve the matter, I find that he is not permitted to avail of any of the defences permitted under Section 6(4) of the Act.

I find that the complainant was treated in an unfair and unreasonable manner and I cannot establish that substantial grounds prefaced his dismissal. Irrespective of the lack of availability of a written contract in the case, it was undisputed that the complainant had worked on a multi tasking basis for the respondent for almost a year and a half .He was,therefore,properly protected by the parameters of the Act.

I find that the circumstances may have benefitted from representation during the actual course of events. When asked, the complainant stated that he was unable to appeal the decision to terminate his employment as the respondent was the Managing Director.

I find that the complainant was unfairly dismissed from his employment and compensation is the only appropriate remedy, given that the complainant had relaunched his career within two weeks and had made genuine attempts to mitigate his loss. He should receive a reference in support of his service with the respondent.

In accordance with Section 7(2) of the Act and S.I 287 /1977 (Unfair Dismissal (Calculation of Weekly Remuneration) Regulations 1977, I award the sum of 3,000.00 euro as compensation in terms of actual and prospective loss.

Dated:   16^th November 2016