ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002018
Complaints for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00002734-001 | 20/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00002734-002 | 20/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00002734-003 | 20/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00002734-004 | 20/02/2016 |
Date of Adjudication Hearing: 10/08/201
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, 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 2nd Februa 2015 until the employment was terminated with notice on 4th February 2016. The Complainant was paid €13.00 an hour and he worked 40 hours a week.
The Complainant referred a complaint under the Terms of Employment (Information) Act, 1994 alleging he had not been given a copy of his Terms and Conditions of Employment.
The Complainant referred a complaint under the Payment of Wages Act, 1991 alleging the Respondent had not paid him Minimum Notice on termination of the employment.
The Complainant referred a complaint under the Organisation of Working Time Act, 1997 in relation to his annual leave entitlements.
The Complainant referred a complaint under the Unfair Dismissals Act, 1977 alleging he had been unfairly dismissed.
All four complaints were lodged with the Workplace Relations Commission on 20th February 2016.
Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Position. The Complainant stated that he had been provided with a Written Statement of his Terms and Conditions of Employment signed and dated by the Respondent but he stated he had not been given a copy of the Statement.
Summary of Respondent’s Position. The Complainant was issued with four fixed-term contracts of employment – from 2/2/2015 to 4/5/2015 – from 4/5/2015 to 2/8/2015 – from 3/8/2015 to 1/11/2015 and from 2/11/2015 to 31/1/2016.
Section 3 (1) of the Act requires an Employer to provide an employee with a written statement of Terms and Conditions of Employment within the period of 2 months of the commencement of the employment. Both Parties confirmed that the Complainant had been provided with a written statement signed and dated by both Parties on 4th February 2015. The Complainant stated he was not given a copy of the statement.
Decision CA-00002734-002
The Act requires that an employee is given a written statement of Terms and Conditions of Employment within the period of 2 months of the commencement of the employment. In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 I declare the complaint is not well founded. The Complainant was issued with a written statement of 4th February 2015 signed by both Parties.
Payment of Wages Act, 1991.
Summary of Complainant’s Position. The Complainant stated he had not been paid Minimum Notice on termination of his employment.
Summary of Respondent’s Position. The Respondent stated that the Complainant was summarily dismissed for gross misconduct and therefore was not entitled to payment of Minimum Notice.
Findings
On the basis of the evidence from both Parties I find as follows:
The Complainant in his submission states that the employment was terminated on 2nd February 2016 although the Complainant Form submitted to the WRC states the dismissal date as 4th February 2016. I note the text sent from the Respondent to the Complainant is dated 1st February 2016 in which the Respondent states “I am letting you go” and again while the P45 gives the cessation date as 29th January 2016 while the dismissal letter is dated 4th February 2016.
The Complainant was summarily dismissed on 1st February 2016 when the Respondent issued a text message to the Complainant on 1st February 2016.
I find that the Complainant is entitled to payment of one week’s notice on termination of his employment
In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991, I declare the complaint is well founded. I direct the Respondent to pay the Complainant the sum of € 520.00, subject to any lawful deduction, within 42 days of the date of this Decision.
Organisation of Working Time Act, 1997
Summary of Complainant’s Position. The Complainant stated that he took 15.25 days annual leave and he is claiming 6 days on termination of the employment.
Summary of Respondent’s Position. The Complainant commenced employment on 2nd February 2015 and his last day of employment was 1st February 2015. The Complainant was entitled to 21 days annual leave on termination of the employment. The Complainant took 19.25 days annual leave and he was paid the balance of 1.75 days in his final wages on termination of the employment. Payslip provided which shows the Complainant was paid €182.00 holiday pay due on termination of the employment. The Respondent provided payslips and time sheets for the Complainant as requested post the Hearing.
Findings
On the basis of the evidence from both Parties I find as follows –
I have examined in detail both the Payslips and the timesheets provided by the Respondent in relation to annual leave taken and paid during the course of the employment from February 2015 to February 2016. This shows that the Complainant took 19.25 days annual leave during the course of his employment for which he was paid according to the payslips provided.
The Respondent states that the Complainant is entitled to 1.75 days annual leave accrued on termination of the employment. The evidence shows as per the payslip that the Complainant was paid the balance of his annual leave of 1.75 days on termination of the employment.
On the basis of the evidence and my findings above I declare the complaint is not well founded. The Complainant has been paid his annual leave entitlements accrued during the course of the employment.
In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act, 1997, I declare the complaint is not well founded.
Unfair Dismissals Act, 1977
Summary of Respondent’s Position.
The Respondent stated that the Complainant was on unauthorised absence from work on 17.75 days during the course of the employment. Evidence provided.
The Complainant was absent without leave for 6 days from 28th August 2015 to 4th September 2015 The Complainant did not make contact with the Respondent. He was informed that he must book annual leave two weeks in advance or to provide on return a Doctors Certificate stating the cause of the illness. He was informed that if he did not follow procedure in the future the Respondent would have to consider his position in the Company. This was issued by letter dated 9th September 2015 to the Complainant.
There was an altercation on site on 8th October 20215 between two employees, including the Complainant. The Complainant struck back the other employee. The Complainant was suspended and sent home at 10am He was also suspended the following day. The fight that occurred was on a client site. A meeting was held with the Complainant on 8th October 2015 in relation to the incident following which he was suspended without pay for two days until 12th October 2015. He was issued with a written warning dated 8th October 2015.
The Complainant was absent from work for 5 days on 20th November 2015, the 23rd November 2015, the 4th December 2015, the 8th December 2015 and on 9th December 2015. These were unauthorised absences and when the Complainant returned to work on 10th December 2015 he did not present a Doctors Note nor had he made any contact with the Respondent in relation to these absences. The Complainant was issued with a further written warning dated 11th December 2015. He was informed that if his absentism did not improve the Respondent would have no option but to consider dismissal.
The Complainant was absent from work on unauthorised leave on 11th January 2016. The Complainant did not contact the Respondent nor did he seek any sanction for annual leave.
The Complainant did not attend for work on Monday 1st February 2016. The Complainant was issued with a text message on 1st February 2016 informing him not to come to work the following day as his employment was being terminated due to missing so many working days. The Complainant responded to the Text stating “I’m in Holland I told ye when I booked and you didn’t have a problem”. The Complainant was issued with a letter of dismissal and a P45 on 4th February 2016.
The Respondent confirmed at the Hearing that the Complainant was not invited to a Disciplinary Hearing prior to the dismissal nor was he afforded a right of appeal of the dismissal.
Summary of Complainant’s Position.
The Complainant stated that he had received a text message from the Respondent while he was in Holland at a Football match and he stated that this absence was approved by the Respondent. The Complainant stated that he responded to this text by letter dated 11th February 2016 in which he states that “I never received any warnings from you during my time working for (Named)”.
The Complainant stated that he was dismissed without due process. The Complainant stated that he has made every effort to mitigate his loss. He secured work on 9th March 2016 to 29TH April 2016 and he earned the sum of €3,333.00. He secured further employment on 2nd May 2016 and he is paid €420.00 gross per week.
He is claiming payment for loss suffered of €12,527.00
On the basis of the evidence from both Parties and following an examination of the Time sheets provided by the Respondent, including the Payslips provided for the duration of the employment I find as follows:-
I find that the Complainant was absent on unauthorised leave for 17.75 days during the course of the employment.
I find that the Complainant was issued with three written warnings during the employment. He was issued with a letter dated 9th September 2015 in relation to an unauthorised absence from work for 6 working days from 28th August 2015. The Complainant was informed of the procedures required in relation to an absence from work in relation to both annual leave and sick leave.
The Complainant was issued with a further written warning on 8th October 2015 in relation to an incident on 8th October 2015 in which the Complainant was involved in an altercation with another employee at work and he was suspended without pay for two days.
The Complainant was issued with a further written warning by letter dated 11th December 2015 following an unauthorised absence for 5 days between 20th November 2015 and 9th December 2015. He was informed that unless his absentism changed immediately the Respondent would have no option but to consider dismissal.
The evidence was that the Complainant was absent on unauthorised absence again on 11th January 2016 and again on 1st February 2016. The Complainant stated that all the absences were approved by the Respondent however there was no evidence to support this assertion. However the evidence shows that the Complainant was issued with two written warnings in relation to unauthorised absences on 9th September 2015 and again on 11th December 2015.
I find that the Respondent did not apply fair procedures and natural justice to the dismissal of the Complainant by text followed by a letter of dismissal on 4th February 2016. S.I. 146/2000 – Industrial Relations Act, 2000 (Code of Practice of Grievance and Disciplinary Procedures) Regulations, 2000 sets down the procedures to be applied to any Disciplinary Procedure including dismissal of an employee. I find that the Complainant should have been invited to a Disciplinary Hearing prior to any dismissal and when the decision was made to dismiss the Complainant he should have been afforded a right of appeal of the dismissal.
Decision CA-00002734-004
On the basis of the evidence and my findings above I declare the complaint of unfair dismissal is well founded. The Respondent has failed to apply fair procedures and natural justice to the dismissal of the Complainant.
However Section 7 (2) (b) of the Act provides as follows: Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to – (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee”.
I find that the Complainant by his actions in being absent from work for 17.75 days on unauthorised leave contributed to his dismissal. This was despite two written warnings in relation to his absences on 9th September 2015 and again on 11th December 2015.
In accordance with Section 8 of the Unfair Dismissals Act, 1977 and taking account of Section7 (2) (b) of the Act I declare the complaint is well founded. I direct the Respondent to pay the Complainant compensation of€1000.00 (one thousand euro) within 42 days of the date of this Decision.
Rosaleen Glackin
Adjudication Officer
Date: 20/10/2016