Complainant

Respondent

Anonymised Parties

A Machine Operator

A Printing Company

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-00002964-001

01/03/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00002964-002

01/03/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00002964-003

01/03/2016

2:1     UD Act case - CA-00002964-001  

The Complainant maintained that he had been Unfairly Dismissed by the Respondent following an incident on the Shop Floor, involving the Complainant’s brother, on the 8^th December 2015. No fair procedures were followed and the rules of Natural Justice had been ignored.

2:2   Minimum Notice & Terms of Employment Act, 1973 case CA -00002964-002

The required Statutory notice was not paid.

2:3     Section 27 of the Organisation of Working Time Act, 1997 CA -00002964 -003

Holidays not paid on leaving employment.

3:1     UD Cat case - CA-00002964-001  

The Complainant was not dismissed. He absented himself in sympathy with his brother who had been Summarily Dismissed. Efforts to contact the Complainant failed in the days after the incident – he was believed to have gone home to his country of origin. Despite all the circumstances the Respondent had never expressed any wish to cease employing the Complainant. In keeping with his annual pattern of seasonal work he had simply gone home a few days early. Efforts to have a meeting to discuss issues on the 22^nd December had been frustrated by the Complainant’s absence overseas.

3:2     Minimum Notice & Terms of Employment Act, 1973 case CA -00002964-002.

Does not arise as the Complainant was not dismissed.

3:3     Section 27 of the Organisation of Working Time Act, 1997 CA -00002964 -003

All monies due, as in keeping with previous years, were paid at the end of December.

4:1     UD Act case - CA -0000 2964 -01

4:2: Time Limits.

As set out in the reasoning in ADJ 2168 the Complainant was a Seasonal Worker and under the terms of the First Schedule to the Minimum Notice & Terms of Employment Act, 1973 I accepted that he had the qualifying service.

4:3     Evidence considered.

The Complainant gave oral evidence as did the Managing Director of the Respondent. Cross examination of the parties was allowed and took place by the Representatives.

In summary of the evidence given the Complainant was a Seasonal worker with the Respondent Company since November 2004. His pattern was to come to Ireland in the Autumn and work for the Respondent until Christmas. The Respondent business has a seasonal nature and the arrangement suited all parties.

The Complainant had introduced his brother to the Respondent in 2011. Nothing unusual happened until the 8^th December 2015 when the brother had a major altercation with the Managing Director of the Respondent Company. The Complainant had gotten involved in the argument as he was on the Shop Floor a short distance away.

The brother was Summarily Dismissed and the Complainant had gone home with his brother that day.   This was apparently an act of fraternal solidarity. On their way out the Respondent had clearly implied by loud comments that they should “not come back”.

As there was effectively only one and a half more working weeks to the Christmas break on the 19th December both brothers decided to go home early. Efforts to contact the Complainant by the Respondent were unsuccessful – an effort had been made to arrange a clear the air meeting on the 22^nd December but to no avail as the Complainant was then overseas.

Considering all the evidence, both oral and written it was clear that a verbal dismissal had taken place on the 8^th December 2015. The primary Dismissal had been that of the Complainant’s brother and the Complainant had become involved almost inadvertently. Allowing for considerable language difficulties on the day ( 8^th December 2015) I found from the evidence that while there was no doubt the clear intention of the Respondent to Summarily dismiss the Complainant’s brother ( ADJ 2168) I did not find the same clarity of intention regarding the Complainant.

The Seasonal arrangement had worked well for 11 years and the Respondent had no desire to end it – difficulties with the Complainant’s brother notwithstanding. This was clear from the evidence.

However the heated comments of the Respondent Managing Director on the day of the 8^th December 2015 directed to both Brothers was clearly a Dismissal and were taken as such by the Complainant.

The Respondent had no procedures and no investigation of the Dismissal took place as required by the UD Act 1977 and SI.146 of 2000 Code of Practice on Grievance and Disciplinary Issues.

Accordingly the claim has to stand. An Unfair Dismissal took place.

As redress and taking the Respondents comments into account regarding Compensation as the preferred remedy and with the passage of time Redress of 15 weeks pay is ordered. This to approximate to effectively the loss of the 2016 Season.

In regard to the 2016 Season the Complainant stated in evidence that he was caring for a Sick relative in the Ukraine during most of 2016 and would probably , in my view , have had limited availability to come to Ireland during this period.

Taking the P45 of the Complainant as a basis, his earnings for 2015 were € 16, 743 for approximately 30 weeks. (€ 16,743/30 = €558) Accordingly a 15 weeks payment (€ 558 X 15 = € 8,370) is in my view just and equitable.

4:4   Minimum Notice & Terms of Employment Act, 1973 case CA -00002964-002.

As the Complainant had eleven years service he is entitled to six (6) weeks notice pay = €558 x 6 = €3,348. I direct that this be paid to him.

4:5   Section 27 of the Organisation of Working Time Act, 1997 CA -00002964 -003

In oral evidence it was accepted that the Respondent had paid all monies due, including Holiday Pay, at the end of December 2015. This was in keeping with the practice of previous years.

Accordingly the claim/complaint has no standing and is dismissed.

Act

Complaint/Dispute Reference No.

Summary decision – Refer to Section 4 above for detailed arguments.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00002964-001

Claim is well founded. No proper procedures were followed and an Unfair Dismissal took place. Redress of 15 weeks gross pay (€8,370) is awarded as just and equitable.

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00002964-002

Claim is well founded as an Unfair dismissal took place. As per Statue 6 weeks notice pay is awarded. (€ 558 X 6) = €3,348.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00002964-003

Parties acknowledged that all outstanding monies had been paid in late December 2015.

No basis for claim and is dismissed.