ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000820

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

Date of Adjudication Hearing: 25/05/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, 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:

Respondent’s Submission and Presentation:

The complainant had been out on sick leave for an extended period. A senior manager spoke to him on a number of occasions regarding a return to work but the complainant advised that he was unable to do so. In May 2015 the complainant was paid in error for work performed by another employee. When this came to light it was realised that the complainant was still on sick leave. His P45 was then processed.

Decision:

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

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.

Issues for Decision:

Whether the dismissal of the complainant was fair and reasonable in accordance with the provisions of the Unfair Dismissals Act, 1977.

Whether the complainant is due payment in lieu of notice in accordance with the provisions of the Minimum Notice and Terms of Employment Act, 1973.

Legislation involved and requirements of legislation:

Section 6 (1) of the Unfair Dismissals Act 1977 states:

Subject to the provision 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.

Section 6 (4) of the Act states:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one of the following:

(a)    the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do…

Section 4 (1) of the Minimum Notice and Terms of Employment Act, 1973 states:

An employer shall, in order to terminate the contract of employment of an employee who has been in continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

Decision:

The complainant was employed as a Security Officer by the respondent on different sites in the South-East of the country. His employment commenced in January 2011 and was paid €9.95 per hour working usually about 36 hours per week. At the end of June 2014 the complainant went on sick leave related to a back problem and furnished the respondent with medical certificates on a regular basis. In May 2015 the complainant received a P45 form via email stating that his employment had ceased with effect from 6 May 2015. In July the complainant wrote to the respondent querying why the P45 had been issued as it was not his intention to leave his employment. The reply stated that that he had been paid a week’s wages in error and that the P45 had been issued to avoid any further overpayment.

There was disagreement in relation to contact between the complainant and the respondent during the absence through illness with a senior manager stating that he had been in contact with the complainant on three occasions in 2014 and the respondent saying that there was only one contact initiated by himself regarding the issue of sick-pay. The complainant was informed that he would not be paid during the absence and that he should apply to the Dept. of Social Protection in this regard.

It is clear that the respondent did not apply any procedures whatsoever in deciding to terminate the respondent’s employment. There was no contact with the complainant in 2015 and no attempt to seek a medical report regarding the nature and expected duration of his illness. The complainant was never advised that his continued employment was in question due to his absence nor was he given any opportunity to make submissions in this regard.

Section 6 (7) of the Unfair Dismissals Act states:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or Labour Court, as the case may be, considers it appropriate to do so –

(a)    to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…

Taking all of the above into consideration I find that the complainant was unfairly dismissed. I therefore make the following findings in relation to the complaints before me:

Complaint No. CA-00000575-001:

I note that the complainant was unavailable for work at the time of his dismissal and Is still not in a position to return to work. He has, therefore, suffered no financial loss. I therefore award the complainant the sum of €1,432.40 being the equivalent of 4 weeks remuneration as per Section 7 (1)(c)(ii) of the Act.

Complaint No. CA-00000575-002:

I find that the respondent was in breach of Section 4 (2) of the Minimum Notice and Terms of Employment Act 1973. I therefore find the complaint to be well founded. Section 12 (1) of the Act directs that in these circumstances the redress is compensation for “any loss sustained by the employee by reason of the contravention.” As the complainant was not in receipt of any payment from the respondent at the relevant time no loss was incurred in this respect and therefore no compensation arises.

Complaint No. CA-00000575-003:

This complaint was withdrawn at the commencement of the hearing.

Dated:   9 September 2016