FULL RECOMMENDATION
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005 PARTIES : MC STONE SYSTEMS LIMITED T/A STONE SYSTEMS (REPRESENTED BY MR PAUL HUTCHINSON B.L., INSTRUCTED BY SEAN ORMONDE AND COMPANY, SOLICITORS) - AND - WIESLAW TYKA (REPRESENTED BY E.M. O' HANRAHAN, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Hall |
1. An appeal of an Adjudication Officer's Decision no: ADJ-00003681.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 31 May 2017 in accordance with Section44 of the Workplace Relations Act, 2015. A Labour Court hearing took place on 13 December 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Wieslaw Tyka against the Decision of an Adjudication Officer under the Minimum Notice and Terms of Employment Act 1973 (the Act) claiming that he did not receive his proper notice on the termination of his employment by his former employerMc Stone Systems Limited t/a Stone Systems. The Adjudication Officer held that the Complainant’s claim was not well-founded as he had been dismissed for gross misconduct. Mr Tyka appealed against that Decision.
The claim under the Act was referred to the Workplace Relations Commission on 21st June 2016.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Wieslaw Tykawill be referred to as “the Complainant” andMc Stone Systems Limited t/a Stone Systemswill be referred to as “the Respondent”.
Background
The Complainantcommenced employment with the Respondent as a stone fixer/ stonemason on 22nd June 2005 and he was dismissed from his employment on 23rd February 2016. His rate of pay at the date of his dismissal was €15.66 per hour and he worked a 39-hour working week with his total weekly pay inclusive of overtime of four hours per week at time-and-a-half amounting to €703.00.
The Respondent is a natural stone contractor. The Complainant was employed as a skilled labourer whose principal duties included cutting stone, fitting stone and fitting waterproof membrane.
Summary of the Complainant’s Case
Mr Eamonn O’Hanrahan, Solicitor, E.M. O’Hanrahan, Solicitors, on behalf of the Complainant, submitted that the Complainant was unfairly dismissed and accordingly should have been given notice in accordance with his statutory entitlement under the Act, the Complainant had a separate claim under the Unfair Dismissals Acts 1977 to 2015.
Summary of the Respondent’s Position
Mr Paul Hutchinson, B.L., instructed by Séan Ormonde & Co., Solicitors, on behalf of the Respondent, contended that the Complainant was dismissed for gross misconduct, therefore his complaint pursuant to the provisions of the Act 1973 must fail. He referred to Section 8 of the Act which reads as follows: -
- "Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party."
In support of his contention Mr Hutchinson citedRegan's Employment Law(Bloomsbury Professional, 2009) at paragraph 14.10:
"Under s. 8, if an employee is dismissed for 'misconduct' he is not entitled to notice or pay in lieu. In Brewster v Burke and the Minister for Labour [the citation for which is [1985]4 JISLL1998] the High Court accepted a UK definition of 'misconduct':
- 'It has long been part of our law that a person repudiates the contract of service if he wilfully disobeys the lawful and reasonable orders of his
master. Such a refusal fully justifies an employer in dismissing an
employee summarily."'
A hearing of this appeal was held on the same day as a hearing of an appeal by the Complainant against the Respondent under the Unfair Dismissals Acts 1977 to 2015. In its Determination under the Unfair Dismissals Acts, the Court found that the Complainant had been unfairly dismissed. At the time of his dismissal, the Complainant had over ten years’ service and is therefore entitled to six weeks’ minimum notice at a weekly rate of €703.00.
Accordingly, the Court sets aside the Adjudication Officer’s Decision and orders the Respondent to pay the Complainant a minimum notice payment of €4,218.00.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
20 December, 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.