ADJ-00006195

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006195

Parties:

Complaint(s):

Date of Adjudication Hearing: 22/06/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Location of Hearing: The Kilmurray Lodge Hotel

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 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).

Background:

The Complainant stated he was dismissed on the 5 July 2016 despite no previous warnings.

Summary of Complainant’s Case:

CA: 00008511

• The Complainant states he worked for the Respondent for 10 months. The Complainant worked as an Oyster Farmer from 10 September 2015 until the 5 July 2016. The Complainant earned approximately €1,300 to €1,700 per month but this varied based on the tides. The Complainant received a contract of employment but he hadn’t a copy of it.

• The Complainant states the Respondent was constantly late with his payment of wages and as a result of this he had problems as he needed to pay bills which were due. The Complainant stated that he was paid monthly therefore it was so important he was paid on time to meet his bills.

• The Complainant stated there was an issue relating to a late payment into his bank account in June 2016 wages. The Complainant states that he raised this with the Respondent as it was 4 to 5 days late and he was expecting it to be there. The Complainant got paid on the Monday and he contacted SM via text on Sunday afternoon to confirm he wouldn’t be in Monday as he would have to pay his bill once he got money as it was late. The Complainant provided viewing of these text messages to the Adjudicator.

• The Complainant texted again on Monday to ask would there be work on Tuesday and SM asked to meet the Complainant. The Complainant went in on Tuesday and asked why he did not come in to work. SM said that it wasn’t good enough that he didn’t come in on Monday and SM said to the Complainant that he can go. The Complainant asked him what did he mean and SM told him that he was sacked. The Complainant states he was dismissed on the spot in a very degrading manner on the 5 July 2016 because of this without any type of warning.

• The Complainant stated that he received no notice and didn’t work anymore. The Complainant stated that other texts followed this regarding outstanding hours and final payment.

• The Complainant contests that he was late / didn’t turn up and that he was told his behaviour wouldn’t be tolerated. The Complainant states he did not receive any warnings.

• The Complainant, in relation to his absence on the 2 July 2016 states that this was a Saturday. The Complainant states that he understood that he didn’t need to go to work that day as there was very little work to be done and it was optional as they would have too many people.

• Since his dismissal the Complainant has been unemployed and has engaged with Turas Nua to help him get a job. The Complainant has been applying for jobs in the locality but has had no success to date. The Complainant does not drive so mobility and transport options mean he needs a job locally.

Summary of Respondent’s Case:

• The Respondent noted via written communication to the WRC on the 16 January 2017 that the Respondent did not propose to attend the hearing. The Respondent attached submissions for the Adjudication Officer to review before reaching decision. The following is the Respondents submission.

• CA: 00008511

  • The Complainant commenced employment with the Respondent as an Oyster Farmer on 7 August 2015.

  • The Complainant claims that he was never paid on time. This is denied by the Respondent. In general, the Complainant received his salary within 1-3 days of the date on his payslip. The Respondent states that payment is not made on the date of the payslip as it takes a number of days between the Company accountant finalising the payslip in Ireland and the authorisation of transferring the payment in France. In this regard, the Respondent attached an Appendix schedule which shows all payments made to the Complainant, the date of the Complainants payslips and the date of the relevant bank transfer. The Respondent states that the Appendix highlights the Complainant was only paid late on one occasion (September 2015) in circumstances where SM had taken longer than normal to calculate the Complainants hours for the Company’s accountant to process. Accordingly, the Respondent denied the allegation that it never paid the Complainant on time. In addition, the Respondent states that the Appendix shows that the Respondent provided the Complainant with a number of advances at the request of the Complainant.

  • The Complainant claims that he was unfairly dismissed without warning. This is denied by the Respondent. On a large number of occasions since the commencement of his employment, the Complainant failed to turn up for work without an adequate or, on occasion, any explanation at all. The Complainant was informed on a number of occasions that this conduct would not be tolerated and could not continue. Notwithstanding these warnings this behaviour persisted and the Complainant was ultimately dismissed on 5 July 2016. The last period of unauthorised absence which led to the Complainants dismissal occurred on the 2 and 4 July 2016. The Complainant did not turn up for work on 2 July 2016 without any explanation. The Complainant contacted the Respondents site manager [SM] by text message on the 4 July 2016 to say that he could not attend work on that day because he had to pay a bill and go food shopping. SM replied stating that this was not a valid reason to not attend work and reminded the Complainant that it was a very busy period for the business. SM also reminded the Complainant that he was scheduled to finish early that day so he could attend to those personal matters after his shift. Notwithstanding this, the Complainant failed to attend work on the 4 July 2016. On the 5 July SM asked to speak with the Complainant to discuss his latest absence. During that meeting, SM reiterated the fact that his continued unauthorised absence from work could not continue and that the excuse that he provided for his absence on 4 July 2016 was not acceptable. In response, notwithstanding the warning from SM the Complainant stated that if he needed to pay a bill or go food shopping again he would still call in absent. On foot of that statement and having regard to previous warnings given to the Complainant SM decided that there was a complete breakdown in trust and confidence and he had no alternative but to summarily dismiss the Complainant for gross misconduct.

Findings and Conclusions:

Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below.

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

There is no dispute as to whether the Complainant was dismissed or not. This has been agreed by both parties.

The Respondent noted this was a result of continuous absenteeism issues. However, the Respondent was unable to present any further details on the same in relation to specific dates.

The Respondent confirmed the Complainant was dismissed on the 5 July 2016. However, the Respondent has failed to present evidence to confirm that the Complainant received the rules of natural justice or fair procedures in line with the Code of Practice on Disciplinary Procedures (S.I. No. 1 17 of 1996). The Respondent stated that this dismissal had regard to previous warnings issued to the Complainant. However, the Respondent has failed to provide evidence and confirmation in writing of the previous warnings to the Complainant.

Decision:

Section 41 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 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I find that the Respondent did unfairly dismiss the Complainant from his employment. However, I find that as a result of not attending work the Complainant did contribute to his own dismissal. I find that the Complainant was unfairly dismissed.

Under the legislation I recommend an award of 6 months’ salary [averaged at the salary of €1,500 per month] equating to €9,000 to be made to the Complainant. This should be implemented within six weeks of the date below.

Dated:   21/07/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery