ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002951

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 08/08/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Acts, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The respondent employed the claimant as a driver/bus escort in the period 21^st of October 2013 until the 13^th of November 2015. He was employed on a community employment (CE) scheme and worked 19.5 hours per week (Monday to Wednesday inclusive). He was paid €208 gross (€140.38 net) and a fuel allowance of €20 each week.

CA-00002802-001: - The complainant submits that he did not receive his entitlement to payment for Annual Leave (1.5 days) on cessation and Public Holiday pay during the Christmas period in 2015. Additionally the complainant asserts that he was obliged to attend for training in Dublin on the 23rd of May 2015 (Saturday) and that he was not paid for the same necessitating the use of an annual leave day from his employment in Dublin Bus. He was not paid for the additional cost of travel associated with the particular day. Furthermore he was not paid his entitlement to statutory minimum notice on termination of his employment.

CA-00002802-002: - The complainant submits that he did not receive his entitlement to payment for annual leave outstanding following his dismissal (see above) in breach of s. 23 of the Act.

CA-00002802-003: - The complainant submits that he did not receive his entitlement to payment for Public Holidays at Christmas 2015 in breach of s. 21 of the Act.

CA-00002802-004: - The complainant submits that he was unfairly dismissed on the 13^th of November 2015. He was summarily dismissed in the absence of procedure following alleged unacceptable conduct and behaviour on and outside the respondent’s premises on the previous day. The letter of dismissal refers to gross misconduct and bullying and harassment. He was in receipt of a written warning dated 11^th of November 2015 arising from an incident on the 9^th of September and which was still in process at the time of summary dismissal.

CA-00002802-005: - The complainant submits that he was discriminated against in the matter of his attendance of a training provided by his employer on the 23^rd of May 2015 on the basis of his age (48 years), sexual orientation (heterosexual) and gender. An older, married male colleague was excused attendance at the training to facilitate a cruise.

CA-00002802-006: - The complainant submits that at a date unknown 2014-2015 he refused to use a power washer (unsafe) to clean company vehicles on health and safety grounds thereby creating a problem for management and thereby sowing the seed of his subsequent dismissal. He stated at hearing that no sanction arose and that management did not insist that he use it.

CA-00002802-007: - This particular complaint relates to section F of the complaint form where the complainant has ticked box 1 – Complaint in relation to disciplinary sanctions up to an including dismissal. He submits that two other people drove the vehicle post accident – the driver drove it to the yard and the transport co-ordinator drove it to the garage and back. Neither was sanctioned and therefore he was victimised.

CA-00002802-008: - This particular complaint relates to section F of the complaint form where the complainant has ticked box 2 – Bullying and harassment procedures. No specific submission was made in this regard.

Respondent’s Submission and Presentation:

The respondent ceased trading in July 2016 and has no income or assets. The respondent was not in a position to produce records for the hearing.

CA-00002802-001: - The respondent submits that holiday entitlement and public holiday entitlement are paid as standard in CE schemes. It is not in a position to furnish the record for the hearing.

CA-00002802-002: - The respondent submits that statutory annual holiday entitlement is paid as standard in CE schemes. It is not in a position to furnish the record for the hearing.

CA-00002802-003: - The respondent submits that public holiday entitlement is paid as standard in CE schemes. It is not in a position to furnish the record for the hearing.

CA-00002802-004: - The respondent relies on the content of its letter to justify the dismissal and in particular states that staff was terrified by the complainant’s behaviour on the 12^th of November 2015.

CA-00002802-005: - The respondent submits that no valid basis for complaint exists.

CA-00002802-006: - The respondent submits that no valid basis for complaint exists.

CA-00002802-007: - The respondent submits that the circumstances in which the complainant drove the vehicle were totally at variance (the complainant was instructed not to drive the vehicle) with the circumstances in which the other two employees drove it.

CA-00002802-008: - No submission was made.

Decision:

The cognisable period of complaint in this case is from 19^th of August 2015 until the 18^th of February 2016 (date of receipt of complaint by WRC).

CA-00002802-001: - The complaint in respect of the training day in May 2015 is out of time. The complaint for payment for Public Holidays post dismissal is misconceived. Based on the uncontested evidence adduced at hearing I find that the complaints in respect of annual leave and non-payment of statutory notice are well founded. I hereby require that the respondent pay the claimant €556 (say five hundred euro) net in compensation.

CA-00002802-002: - I find that the complaint in respect of breach of s. 23 of the Act is well founded and hereby require that the respondent pay claimant €250 (say two hundred and fifty euro) in compensation exclusive of the actual loss (see decision CA-00002802-001).

CA-00002802-003: - I am satisfied that the complainant will have received his entitlement to payment for Public Holiday in the course of his employment. His complaint in respect of public holidays falling post dismissal is misconceived. Therefore I find that the complaint under s. 21 of the Act is not well founded.

CA-00002802-004: - In the absence of any demonstrable procedure (evidenced in the letter of 13^th of November 2015) the respondent was not entitled to unilaterally declare that the complainant’s behaviour amounted to bullying and harassment (gross misconduct). Consequently this dismissal was grossly unfair. The complainant has requested compensation in remedy, however in his own evidence he stated that he did not seek employment to mitigate the loss arising from the unfair dismissal as it was next to impossible on the one hand and that he was pursuing a course of education in Limerick on the other. He is obliged to do so in Law and in the absence of demonstrable effort I am limited in the amount of compensation (if any) I can award. I find that the complaint is well founded and hereby require that the respondent pay the claimant compensation in the amount of €1,664 (say one thousand six hundred and sixty four euro) for breach.

CA-00002802-005: - The complaint is clearly misconceived and out of time and therefore it is not well founded.

CA-00002802-006: - The complaint is clearly misconceived and out of time and therefore it is not well founded.

CA-00002802-007: - The specific issue here relates to alleged victimisation arising from the disciplinary sanction of the 11^th of November 2015 (written warning). I do not accept that the complainant was victimised in all the circumstances and therefore am not in a position to make recommendation favourable to him.

CA-00002802-008: - This aspect has been dealt with above at CA-00002802-004.

Dated:   10/10/2016