ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003977

Complaints for Resolution:

Date of Adjudication Hearing: 14/12/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 8(1B) of the Unfair Dismissals Act, 1977, Section 11 of the Minimum Notice and Terms of Employment Act 1973, Section 6 of the Payment of Wages Act, 1991, Section 7 of the Terms of Employment (Information) Act, 1994, Section 39 of the Redundancy Payments act, 1969 and Section 27 of the Organisation on of Working Time Act. 1997 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.

Attendance at Hearing:

A General Operative and a Builder

Complainant’s Submission and Presentation:

The complainant submitted 11 complaints to the WRC, which were received on 28 June 2016. There was some overlap and duplication in the furnishing of the statement of complaints and I will address this later in the report.

The complainant, a Lithuanian national had commenced work as a General Operative with the respondent on January 1, 2006. He left for a period and returned to work in March 2014.He earned €10 per hour for a 24 hour three day casual week. There were occasions when he worked less than 24 hours per week.

The complainant submitted that he was working on a 6 foot high scaffold on a site on January 29, 2016 .He had been driven there by the respondent and was cleaning fascia and soffits .The complainant disputed that he had been tied onto the roof with a rope and instead that he fell off the roof, causing him an injury, which was before the Personal Injuries Board. He asked the respondent to document the accident and was told that the respondent was uninsured.

After the accident, the complainant was out of work until Mid April .He approached the respondent and asked for work on two occasions and was told that he would have work in May. His Injury Benefit ceased during the last week of March, 2016 and he informed the respondent that it should be replaced by Unemployment Benefit.

He did not get his job back, despite being told there was work. And received his P45 on 26 June 2016 incorrectly dated January 22, 2016. The complainant submitted that he had not submitted a final medical certificate indicating his fitness to return to work.

The complainant confirmed that he had been offered a vague reference to work, but no formal offer had been made to his Solicitors

During cross examination, the complainant confirmed that he has lodged a claim for Occupational Injury Benefit with Department of Social Protection on 5 the February 2016.The complainant denied that the respondent had been to see him twice after the accident .He denied that he had delayed 10 days going to the Doctor and stated that he went as soon as he could. He lost trust in the respondent and sought his holiday pay.

Respondent’s Submission and Presentation:

The respondent explained that he was a self employed builder since 2005 and the complainant was his sole employee .The complainant had commence work in 2006 and had left a number of times .He returned from the UK in March 2014 and the respondent rehired him on a casual part time basis .He understood that the complainant had previously been knocked down by a care, and had planned a major operation in Lithuania.

On 22 January 2016, the complainant sustained an injury while jumping from a 6 ft. scaffold onto rough ground .The respondent took the complainant home and called to see him over the following week. He had bruised his heel and needed to wear a brace .He helped the complainant to fill in his Occupational Injury benefit forms.

The respondent checked up on the complainant during March and he still wasn’t up to returning to work. The respondent submitted that he did not have a busy workload and confined his work to his own extension .Towards the end of March, 2016, the respondent recalled that the complainant approached him asking to be made unemployed to facilitate Job Seekers Benefit from April .The respondent did not have further work and issued the complainants P45 in June 2016.He did not receive a response from him. He recalled that the complainant had also approached him for a loan of €1,000 as his mother had died .The respondent confirmed that he did not maintain records of the complainants work history or his annual leave.

In September, 2016, the WRC Inspectorate engaged with the respondent and identified a shortfall of €112 in annual leave owed to the complainant.

The respondent confirmed that there was no further work for the complainant as he had reorganised the work and could now manage it himself.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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. Section 11 of the Minimum Notice and Terms of Employment Act 1973, Section 6 of the Payment of Wages Act, 1991, Section 7 of the Terms of Employment (Information) Act, 1994, Section 39 of the Redundancy Payments act, 1969 and Section 27 of the Organisation on of Working Time Act. 1997 require that I make a decision in the complaints.

I found a stark lack of apparent records of employment from either party in this case. I addressed the parties during the hearing to confine the presentations to the complaints under employment legislation rather than seeking to run a rehearsal for the parallel personal injuries case.

1 CA-00005545-001 Unfair Dismissal.

The complainant submitted that he was unfairly dismissed from his employment by the respondent. I have listened carefully to both parties oral submissions in this case .I asked the complainant when he considered he had been dismissed .I ensured that the complainant understood the question .He told the hearing that it was when he received his P45 in June .

I was struck by the evidence of the respondent in relation to the variation in the Department of Social Protection Payments in this case .It seems that the complainants bank of Injury benefit was due to expire at March end 2016 .He did not conclude this by way of a back to work certificate via a Final Social Welfare certificate .I found this to be unusual.

Instead , I am satisfied that he asked for the respondents’ assistance and co operation in his switching to Job seekers benefit from April 2016 .

I cannot, therefore establish that the complainant was unfairly dismissed from his employment; instead I find that he drifted into termination of employment via redundancy.

Section 6 (4) 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 or more 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,

( b) the conduct of the employee,

( c) the redundancy of the employee, and

( d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Not withstanding the clear conflict in the recollection of the parties of the conversations between them during March –April 2016, I am satisfied that a redundancy situation prevailed. I could not establish any certainty in terms of the offer of work purportedly made to the complainant in July –August 2016 .

I find the complaint of Unfair Dismissal to be not well founded .

2 CA -00005545-002 Minimum Notice

The complainant submitted that he had not received his statutory notice or payment in lieu .This was not disputed by the respondent .I did not receive any documentation from either party on the periods of lay off/cessation during the 10 year work history .I have therefore based my findings on the two year history of employment, March 2014 to June 2016.

I find that the complaint is well founded and I order the respondent to pay the complainant two weeks wages, €480.00 in lieu of notice.

3 CA-00005545-003 and CA -00005545-004 Minimum Notice

I have already addressed this complaint in CA-00005545-002

5 CA -00005545-05 Payment Of Wages .

The complainant submitted that he was owed €240.00 in unpaid wages .The complainant was not furnished with pay slips .The respondent disputed this.

I find that this complaint is not well founded and I note that the complainant has made a number of parallel requests for a WRC Inspectorate involvement under the Payment of Wages Act 1991.

6 CA -00005545-06 Terms of Employment (Information) Act 1994.

The complainant submitted that he had not received a contract of employment .This was not disputed by the respondent. I find the complaint is well founded and I order compensation to be paid of one weeks salary of €240.00 in respect of the continuous breach of Section 3 of the Act .The complainant did not submit any evidence of a pursuance of this statutory document.

7CA -00005545-07 Terms of Employment (Information) Act 1994.

The complainant submitted that he was not notified in writing of a change to his terms of employment .There was no evidence submitted in support of this complaint. I note that the respondent gave evidence of assisting the complainant in his administrative tasks in dealing with the allowances received from DSP .This was not disputed.

I find that the complaint is not well founded.

8 CA 00005545-08 Redundancy Payment

I have considered the evidence of the parties at the hearing .While there was considerable conflict in the facts of the complainants termination of employment .I am satisfied that the complainant was denied work by the respondent in March 2016 .While I find it unusual that the complainant sought to revert to Job seekers benefit at the conclusion of his sick leave , I find that the respondent agreed with this approach.

I am ,therefore of the view that a redundancy situation existed post April 2016 as the respondent confirmed that he had decided to carry on the business with fewer of no employees. The complainant was not offered a defined offer of employment prior to the issuing of the P45 in June 2016.The complainant had not been replaced by the respondent.

I note the reference by the parties to an offer of work post the issuing of the P45 but this was not corroborated by detail or followed by a defined offer of renewal or re engagement of the complainant. No evidence was submitted on any resignation submitted by the complainant in the 10 year period of 2006 to 2016 or any lay off by the respondent .My consideration of the case was not assisted by the complete lack of retrievable records of the period of employment from either party.

Subsequent to the hearing I wrote to both parties seeking some corroborative documents governing the periods of employment at the centre of the case .Both parties furnished a response.

The complainant submitted a P 45 dated 22 January 2016 and indicated that social welfare records were to follow. In the meantime , The respondent furnished a record of the “ casual “ attendance of the complainant from 10 March 2014 to the third week of January 2016 .These were furnished for comment to the complainant .No further comment was forthcoming .

I have considered this supplementary evidence and while I am dissatisfied that neither party submitted documentary evidence of employment from January 1, 2006, I find that both parties accepted the start date of the claimant, and confirmed that he had worked with the respondent until he left for a short period prior to his return in March 2014.

I must therefore decide that based on the evidence and on the balance of probabilities, the claim under the Redundancy Payments Acts 1967 to 2007 succeeds and I award the complainant a redundancy lump sum based on the following

Date of Commencement:     1 January 2006

Date of Termination:               16 April 2016 (on commencement of job seekers benefit)

Gross Weekly Wage:               €240.00 (€80 per day)

The periods of breaks in service (2012-2014) to be corroborated and taken into consideration by social welfare records.

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

9 CA-00005545-009 Unfair Dismissal

This claim was addressed in CA-00005545-001. I found that it was not well founded.

10 CA -00005545-010 Payment of Wages

The complainant submitted that he was owed €1,520.00 in unpaid wages in response to unpaid wages, holiday pay and notice.

I find this claim is misconceived as I have addressed the wages and minimum notice claim above and I am about to address the holiday claim.

11 CA -00005545-013 Organisation of Working Time

The complainant submitted that he was owed 4 days unpaid annual leave at the cessation of his employment .The annual leave year ran from January to January .The respondent denied this claim and submitted that the WRC inspectorate had calculate the leave owed as €112.00. This had been offered to the complainant and he had not responded.

Compensation on cesser of employment.

Section 23.— (1) (a) Where —

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

I have considered the evidence in this case and having regard for the complainant’s absence through sick leave in the early part of the year, I find that this complaint is well founded and I award the complainant €320.00 in compensation.

Dated:   24 April 2017