ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002315

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

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00003112-001	09/03/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00003112-002	09/03/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00003112-003	09/03/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00003112-004	09/03/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00003112-005	09/03/2016

Date of Adjudication Hearing: 25/07/2016

Workplace Relations Commission Adjudication Officer: John Tierney

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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:

The Complainant was dismissed without notice on the 8th January 2016

The Complainant never received a contract of employment, worked excessive hours and did not get the proper rest breaks.

The Claimant related an incident that took on 8 January 2016 (Friday) between himself and his supervisor. He was ordered to return the keys of the van he used for work (it was the property of the Respondent). As a result he phoned his brother to collect him as he took the upshot of this incident that he was dismissed.

His brother, AD gave evidence that when he arrived to collect him that the supervisor was shouting at the claimant as there was a dispute over tools. He confirmed that the situation was very tense.

On Saturday the Managing Director (MD) contacted him in regard to this incident and arranged to meet him on Tuesday. The MD apologies for the incident and asked him to consider returning to his job. The Claimant refused stating that ’after what happened I could not go back’.

It was claimed that the Respondent did not comply with s25 of the Organisation of Working Time Act in regard to maintain records.

Respondent’s Submission and Presentation:

The Respondent submitted that the Claimant was not dismissed but rather resigned from his position. It was further submitted that the Claimant accosted his supervisor outside his office in the presence AB regarding his role as plumber on 8 January 2016. It is claimed that he stated; ‘Is that the only work you have for me, cleaning urinals? He went on to say ‘I’m a plumber. If you don’t have any plumbing work for me I can work elsewhere’. It was stated that he then handed the keys to his supervisor and left with his tools.

AB in evidence stated that the Claimant attitude was aggressive. He advised him not to make a hasty decision. He confirmed that the atmosphere was hostile.

In regard to a written contract, The Respondent cannot recall whether the Claimant received one but submitted a copy of a standard contract that is given to staff.

In regard to breaks/rest periods and excessive hours, the Respondent stated that details or evidence has been presented to what periods and times breaches, if any took place.

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.

Section 9(3) of the Protection of Employees (Employers’ Insolvency) Act, 1984 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9(4) of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.]

Issues for Decision:

Did a dismissal take place within the meaning of section 8 of the Unfair Dismissals Act 1977?

Was there a breach of section 7 of the Terms of Employment (Information) Act 1994?

Was there a breach of section 27 of the Organisation of Working Time Act 1997?

Legislation involved and requirements of legislation:

The above section of the three piece of legislation

Decision:

CA 3112 - 1

I have considered the submissions of both parties. As to whether a dismissal or a resignation took I am faced with a conflict of evidence. What I can detect for the evidence presented is that an acrimonious discussion took place between the Claimant and his supervisor on 8 January 2016. I accept that the MD contacted the Claimant the next day and arranged to meet him. At this meeting the MD tried to persuade the Claimant to return to work. He declined to do so.

Therefore, I have decided that on the balance of probability that the Claimant formed the opinion that he was dismissed. However, this did not take place in a cool, calm and collected situation. Therefore I believe that the Claimant contributed to this situation.

I find the claim of dismissal and notice well founded in part and award the sum of €10,000.00 in compensation for lack of fair procedure

CA 3112 – 2

In regard to not receiving written terms of employment I find the claim well founded and award €600.00 in compensation.

CA 3112- 3/4/5

A regards breaks/rest periods and excessive hours the Claimant did not submit specific instances or details for this claim. The Respondent is relying on Labour Court case Able Security v Hardijs Langsteins (DWT1319) which put the evidential burden on the complainant to present particulars.

However, the 1997 Act places the onus on the employer to maintain records which they did not. I therefore award €1,000.00 in compensation.

I award a total of €11,600.00

Dated: 24^th January 2017