ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00004195

Parties:

Complaints:

Date of Adjudication Hearing: 15th February 2017

Procedure:

On the 21^st July 2016, the complainant submitted complaints to the Workplace Relations Commission pursuant to the Unfair Dismissals Act and the Terms of Employment (Information) Act. The complaints were scheduled for adjudication on the 15^th February 2017. The complainant attended the adjudication and was represented by Williams Solicitors. The respondent was represented by Athrú Solutions and one witness, a company director, attended for the respondent.

In accordance with section 8 of the Unfair Dismissals Acts, 1977 – 2015 and section 41 of the Workplace Relations Act, 2015 and following the referral of the complaints to me by the Director General of the Workplace Relations Commission, 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.

Background:

The complainant states that he worked for the respondent between the 9^th June 2015 and the 11^th June 2016. The respondent disputes the length of service and the complainant’s entitlement to bring an unfair dismissal claim. For this reason, the complainant was first to present his case, followed by the respondent. The complainant also makes a complaint pursuant to the Terms of Employment (Information) Act. The complainant’s remuneration was €519.75 per week.

Summary of Complainant’s Case:

In respect of the claim made pursuant to the Terms of Employment (Information) Act, the complainant said that he never received a statement of the terms and conditions of his employment. The complainant said that he started employment on the 9^th June 2015 and denied receiving the document presented to the adjudication by the respondent. He pointed out that this document wrongly states that his employment commenced on the 15^th May 2015 and it was only signed by the respondent on the 7^th July 2015. He submitted that the statement provided by the respondent was deficient as it did not provide for a place of work or the notice period to be given.

In respect of the start date of his employment, the complainant said that this was the 9^th June 2015. The P45 issued subsequently by the respondent incorrectly gives the 15^th June 2015 as the commencement date of his employment. On the 9^th June 2015, he met the respondent witness in a neighbouring town and they travelled by truck to the respondent centre. The complainant then drove a truck, while accompanied by a colleague, and he was shown how to operate the crane. The complainant worked for the remainder of the week, working Tuesday to Friday. The complainant referred to telephone calls he made to the respondent and to customers during the course of this week. In response to my question, the complainant said that this truck was a 05 DAF truck and had a tachograph. For most of the year, the complainant drove another vehicle, which also had a tachograph.

In respect of the end of his employment, the complainant said that he was dismissed without notice by the respondent on the 11^th June 2016. He said that his entitlement to one week’s notice brought him over the service requirement under the Unfair Dismissals Act even if his start date was found as fact to be the 15^th June 2015. In respect of his work, the complainant said that his role was to deliver items to customers. The practice was that once you returned to the respondent centre, you could leave and return the next day. On the 9^th June 2016, the complainant said that he told a manager that he would be leaving early for an appointment, and this manager approved this, so long as all deliveries were done. The complainant said that he left early and that he had completed the deliveries. This had been a last-minute appointment, so he approached the manager directly. He outlined that the company director had advised him to talk to this manager regarding leaving early. On the 11^th June 2016, the complainant said he was approached by a respondent director. He was told by the respondent that “it was not working out” and that his employment was to end. The complainant was not given any warnings and it was submitted that the respondent breached fair procedures and the complainant’s Re Haughey rights.

In respect of tachographs, the complainant said that he had never heard of a “tachograph exemption form” and that a haulage company was obliged to keep tachograph records for three years.

In respect of mitigation, the complainant provided five job applications, sent to his father, a friend and a former employer. The complainant outlined that he had sought employment and is doing a course in a named college.

In follow-up correspondence, the complainant submitted electronic tachograph records to show that he was driving a vehicle with an electronic tachograph on the 13^th June 2015 and one with an analogue tachograph in the preceding week. The complainant submits telephone records for the 11^th June 2015 that show him making outgoing calls to a customer of the respondent and a colleague.

Summary of Respondent’s Case:

In respect of the claim made pursuant to the Terms of Employment (Information) Act, the respondent submitted that a statement of the complainant’s terms of employment was provided to the complainant on the 7^th July 2015. The company director said that he had asked the complainant to sign it on a number of occasions, but the complainant always replied that he had forgotten. He raised the issue by asking the complainant in passing in the yard. After two or three weeks, he said that they gave up and considered it to have been signed. The respondent outlined that the contracts were drawn up in batches so that the date of the 15^th May 2015 was a typographical error. The contract had been provided to the complainant within an 8-week period.

In respect of the start date of the complainant’s employment, the respondent submitted that while the complainant had attended the workplace on the 9^th June 2015, this had been a one-day training session. His official commencement date was the 15^th June 2015. The respondent disputes that the complainant did any work before the 15^th June 2015. The respondent submitted that the complainant’s employment ended on the 11^th June 2016 and that he did not work for the respondent at all during the week of the 14^th June 2016. He was paid arrears in pay due on the 14^th June 2016 and accrued annual leave on the 22^nd June 2016. The respondent submitted that the complainant did not have the one year’s service required to refer a complaint pursuant to the Unfair Dismissals Acts.

In respect of the call sheets, the respondent did not dispute that there were telephone calls between the complainant and the respondent on the 9^th June 2015. They had been about getting to the place of work. It acknowledged that there may be other calls after this date. In respect of the complainant leaving work early, the respondent said that this matter had been raised with the complainant in the week preceding the 11^th June 2016. The complainant had undertaken to stop leaving work early. He, however, left work at 15.47hrs on the 11^th June 2016. There were outstanding deliveries which the company director had to do. He had previously allowed the complainant to leave early for a period of two weeks to do a show. He outlined that the respondent had not sought to invoke the disciplinary policy and this was contained in the employee handbook. The respondent submitted that it was a local provider, delivering to a limited area, so did not need to use a tachograph, nor to keep records.

In follow-up correspondence, the respondent submitted that the complainant walked out of work after a respondent manager told him that it was not working out. It denies dismissing the complainant. The respondent also states that the complainant attended the respondent centre for 20 minutes on the 13^th June 2015 to see which of the two vehicles was more suitable for him. He did not commence employment until the 15^th June 2015.

Findings and Conclusions:

This case is marked by significant conflicts of fact between the parties. These conflicts relate to the date the employment commenced, whether the complainant was supplied with terms of employment, whether the vehicles the complainant drove had a tachograph and the circumstances around the ending of his employment. It was not in dispute that a respondent director told the complainant that things were not working out, but they differ as to whether this meant that the complainant was dismissed or whether he then walked out of his place of work.

Given that there are such conflicts in evidence, it is of assistance to consider objective sources of evidence that may lead to a reasoned finding in favour of one version over the other, or perhaps, some other version of events. In this case, the complainant presented telephone records to show that he was in telephone contact with the respondent and with clients in days the respondent states preceded the start of his employment. Given that the complainant’s role was to make deliveries, it was also relevant to look at tachograph records to see when the complainant drove vehicles for the respondent.

Having considered the evidence and submissions, I make the following findings in relation to the two complaints.

CA-00006069-001 Claim of unfair dismissal

I find that the complainant’s start date was the 9^th June 2015 on basis that this was the first day he attended work with the respondent. The text messages he exchanged with the respondent do not refer to any trial day and are very much of the flavour that he is to commence employment on the 9^th June 2015. I also note the calls he made later that week connected to his work. Given that his employment ended on the 11^th June 2016, the complainant has the service requirement needed to bring a claim of unfair dismissal.

Furthermore, I find as fact that the complainant was summarily dismissed by the respondent, without recourse to any dismissal or disciplinary policy. I base this finding on the plain meaning of the words said to the complainant by a respondent director that “it was not working out”. I accept the complainant’s evidence that the respondent director was specific in stating to the complainant that his employment was to end. This respondent director did not attend the adjudication to give contradictory evidence.

In respect of redress, I note that while the complainant presented evidence of seeking alternative employment, his mitigation was not extensive. In assessing redress that is just and equitable, I take account of his length of service, slightly over one year. I note that, while the respondent may have been unhappy with the complainant leaving work early, the respondent did not take any steps to formally address this issue and there were no other issues with his performance. Taking these factors into account, I order the equivalent of 20 weeks remuneration. Given that his weekly remuneration is €517.75, I award redress of €10,395.

CA-00006069-002 Claim pursuant to the Terms of Employment (Information) Act

I find that the complainant was not provided with a statement of the terms of his employment as required by section 3 of the Terms of Employment (Information) Act. I note that the document provided at the adjudication was not referred to previously, either during the course of the complainant’s employment or in correspondence between the parties immediately after the claim was lodged. I would expect to see such a statement referred to by either the complainant or the respondent when the issue of the complainant leaving work early was raised. I would also expect to see it mentioned when the respondent disputed the complainant’s entitlement to bring an unfair dismissal claim as section 3(1)(e) of the Terms of Employment (Information) Act specifies that “the date of commencement of the employee's contract of employment” be included in the statement. Even if there was a typographical error in the document, the respondent would have referred to such a document, had it, in fact, been provided within the first two months of the complainant’s employment. I award redress equivalent to four weeks remuneration, i.e. the amount of €2,079.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00006069-001 Claim of unfair dismissal

I find that the claim of unfair dismissal is well founded and pursuant to section 7 of the Unfair Dismissal Act, the respondent shall pay to the complainant redress of €10,395.

CA-00006069-002 Claim pursuant to the Terms of Employment (Information) Act

I find that the claim is well founded and the respondent shall pay to the complainant the amount of €2,079 as redress for the breach of the Terms of Employment (Information) Act.

Dated:   29^th August 2017

Key Words:

Unfair Dismissals Act

Section 2(1)(a) exclusion

Terms of Employment (Information) Act