ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003127

Complaints for Resolution:

Date of Adjudication Hearing: 21/10/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

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

Complainant’s Submission and Presentation:

The following evidence was presented on behalf of the Complainant by his legal representative:

Background:

The Complainant was employed by the Respondent at various sites for different clients of the Respondent for a period of 2 years prior to his employment ceasing in November 2015. The Complainant initially worked for the Respondent in the UK for a period of time but the majority of his work in the year ending November 2015 was based in Ireland.

The Complainant stated that, throughout the entirety of his employment, he never received a contract of employment. He also stated that his wages were paid through a third-party company (Company A).

The Complainant informed the Hearing that the normal practice was for him to be dropped off at his home on a Friday evening by a colleague who drove the company van, from which they worked during the week. The Complainant stated that he would normally be collected again on Monday morning by his colleague, who was allowed to take the van home for the weekend.

On a particular Sunday in November 2015, the Complainant was advised that his colleague had been involved in a crash with the company van. The Complainant stated that he attended at the scene of the crash, where he retrieved the expensive tools/equipment which were in the van, prior to its being impounded by the Gardaí.

According to the Complainant he was advised by a manager for the Respondent that he (the Complainant) would be returning to work once the van had been repaired. The Complainant further explained that despite constant assurances from the Respondent's manager that he would be returning to work, this never materialised. The Complainant stated that he received a letter from the Respondent on 9 December 2015 stating that his employment was terminated with effect from 26 November 2015. He was not given any explanation or reason for the termination. This letter also contained the Complainant's P45.

The Complainant exhibited this letter at the Hearing. The letterhead on this communication was that of a third company, Company B. The Complainant's representative contends that Company B is a payroll facilitator and that a common directorship exists between it and Company A, the company through which the Complainant received his wages.

The Complainant further stated that about three months after his termination, he received a telephone call from the Respondent's supervisor asking if they could collect the company's equipment, which the Complainant had retrieved from the crash van in November 2015, as they intended putting the van back on the road. The Complainant stated that he agreed to the release of the equipment, as he assumed he would be returning to work once the van was roadworthy again.

However, the Complainant informed the Hearing that he was advised a short time later by a family friend, who worked with another telecoms company in the same industry, that the Respondent’s van was back on the road but was being operated by staff that had been hired to cover the Complainant's role. The Complainant was never rehired by the Respondent.

Based on the above background, the Complainant submitted the following complaints:

Payment of Wages: (CA-00004173-001)

The Complainant claims that on termination of his employment he did not receive his one week's notice.

Failure to provide a Contract of Employment: (CA-00004173-002)

The Complaint states that throughout the entirety of his employment he never received a Contract of Employment which was his entitlement in line with Section 3 of the Terms of Employment (Information) Act – 1994.

Payment of Wages: (CA-00004173-003)

The Complainant alleges that he did not receive his final week’s salary for November 2015 and despite repeated demands he has never received this payment.

The Complainant also alleges that he received no holidays at all throughout the duration of his employment. The Complainant's legal representative stated that by applying the formula set out in Section 19 of the Organisation of Working Time Act, the Complainant’s annual leave entitlement is 20 days, at a daily rate of €140 per day.

Unfair Dismissal: (CA-00004173-004)

The Complainant contends that he was summarily dismissed from his employment without explanation or due process.

Respondent’s Submission and Presentation:

The Respondent did not attend at the Hearing or provide any written response/evidence.

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 and 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.

Legislation involved:

The following Acts were relevant to the consideration of the Complainant’s claims: (1) Payment of Wages Act – 1991, (2) Terms of Employment (Information) Act – 1994 and (3) Unfair Dismissals Act – 1977.

Decision:

Prior to considering the substantive elements of the complaint, it was necessary to first consider the Complainant's employment situation. The evidence presented to the Hearing indicates that the Complainant carries out work on behalf of the Respondent, is paid through Company A and received his termination confirmation from Company B.

Having carefully considered the evidence in this regard, I am satisfied that the Complainant is in fact employed by the Respondent. All of the initial contact regarding the Complainant's employment was with the Respondent. His work assignments on a daily/weekly basis emanated from the Respondent. In particular, the involvement of the Respondent's representative in the situation with the crashing of the company van is most informative in this regards.

I am also particularly influenced in this regard by the issuing of a company fuel card to the Complainant on 20 November 2015, just three weeks before he received correspondence stating his employment was terminated on 26 November 2015. This correspondence was on the Respondent's own letterhead and the fuel card contained both the Complainant's and the Respondent's names.

Therefore, based on all of the above evidence, I am satisfied that the Respondent, as named in the complaint, is the de facto employer for the purposes of considering the Complainant's claim.

Consequently, I set out hereunder my decision in relation to the substantive elements of the Complainant's complaint:

Payment of Wages: (CA-00004173-001)

Based on the uncontested evidence of the Complainant, I accept that he did not receive payment of one week's notice on termination of his employment in November 2015. Consequently, I find in the Complainant's favour in the sum of €700.00, which is in line with the sum submitted in his complaint document as representing one week's wages.

Failure to provide a Contract of Employment: (CA-00004173-002)

Based on the uncontested evidence of the Complainant, I accept that he did not receive a Contract of Employment at any point during his employment with the Respondent. Consequently, I find in the Complainant's favour in the sum of €1,000.00, in compensation for the breach of his statutory rights as provided for under Section 7 (2) (d) of the Terms of Employment (Information) Act, 1994.

Payment of Wages: (CA-00004173-003)

Based on the uncontested evidence of the Complainant, I accept that he did not receive payment for his final week at work with the Respondent in November 2015. Consequently, I find in the Complainant's favour in the sum of €700.00 in this regard.

In addition, based on the uncontested evidence of the Complainant, I accept that he did not receive, as claimed, his statutory entitlement to annual leave. Consequently, I find in the complainant's favour in the sum of €1,632.40, based on the submitted claim for the period 3 May 2015 to 26 November 2015, representing 11.66 days at €140 per day.

Unfair Dismissal: (CA-00004173-004)

Having carefully considered all the evidence presented by the Complainant in relation to the matter of the termination of his contract of employment with the Respondent, I am satisfied that he was treated in a most unreasonable and unacceptable manner. The evidence presented clearly suggests that the Complainant had his employment terminated in the most summary manner and was neither provided with explanation or due process in this regard.

Consequently, I find the Complainant was unfairly dismissed and I find in his favour in the total sum of €27,000.00 which consists of his actual loss, net of social welfare payments, of €24,500 for the period between his termination by the Respondent and his attaining alternative employment plus the sum of €2,500.00 representing the differential in earnings between his former and new earnings for the 11 week period to the date of the Hearing.

Summary:

In summary, I confirm that I find in the Complainant's favour in the sum of €3,032.40 in respect of his claim for wages/payments due. (CA-00004173-001 and 003) This award is subject to taxation in the normal manner.

In addition, I find in the Complainant's favour in the sum of €28,000 in respect of his claim for compensation with regard to breaches of his statutory entitlements under the Terms of Employment (Information) Act, 1994 and the Unfair Dismissal Act, 1977.

That concludes my decision.

Dated:   2^nd February 2017