UDD1633

Background

Mr Colm Gethings (the Complainant) was employed as a Kitchen Porter by Toughers Ridgeway International ltd (the Respondent) on 2 October 2006. On 19 February 2013 Receivers were appointed to the Company. On 23 July 2014 the Receivers sold the Company to a Mr James Murphy and the Complainant’s employment was transferred to the new owner under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE Regulations).

On 30 March 2015 the Respondent notified the Complainant that his employment was terminated with immediate effect. He was handed a RP50 form to sign which stated that his employment had terminated on 23 July 2014. The Complainant refused to sign the form as he maintained that his employment had transferred to the new owners under the TUPE Regulations. The Respondent did not engage further with the Complainant but terminated his employment with immediate effect. The business did not cease trading.

The Complainant referred a complaint to the Rights Commissioner under the Unfair Dismissals Act alleging that he had been unfairly dismissed within the meaning of that Act. Neither the Complainant nor the Respondent were in attendance when the case came on for hearing before the Rights Commissioner/Adjudication Officer . The Rights Commissioner/Adjudication Officer on 7 April 2016 issued a decision under the Act in the following terms

• “Decision

  The Complaint fails for lack of prosecution”

The case came on for hearing before this Court on 8 November 2016.

The Hearing

Both sides were notified of the venue, date and time of the hearing. When the case was called the Complainant was in attendance but the Respondent was neither present nor represented before the Court.

The Complainant set out the details of the Complaint stating that he was unfairly dismissed by his employer.

No replying submissions were made on behalf of the Respondent.

The Law

Section 6(1) of the Act states

• 6.—(1) Subject to the provisions of this section, 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.

In this case no grounds whatsoever were outlined to the Court. Accordingly the Court finds that the Dismissal was unfair.

Remedy

Section 7 of the Act states

• 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
  (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
  (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
  (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
  (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

Despite these efforts the Complainant is at a considerable loss of income as a result of the Respondent’s actions.

The Court has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate redress in this case.

Having assessed all of the information before it the Court considers that the Complainant has suffered considerable financial loss as a result of the wrong he has suffered. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €18,000. The Court so determines.

Determination

The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €18,000. The decision of the Rights Commissioner is set aside. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CO'R______________________
9th November 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.