ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00002168

Parties:

	Complainant	Respondent
Anonymised Parties	A Machine Operator	A Printing Company

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00002981-001	02/03/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00002981-002	02/03/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00002981-003	02/03/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00002981-004	02/03/2016

Date of Adjudication Hearing: 03/05/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 7 of the Terms of Employment (Information) Act, 1994 , Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and Section 27 of the Organisation of Working Time Act, 1997 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).

1: Background:

This case ADJ 2168 is very closely linked to ADJ 2163. Both Complainants are brothers of each other.

Opening Point: Qualifying Service.

It was submitted that the Complainant did not have the required 12 months service under the Act. However it was clear from the evidence that the Complainant was effectively a Seasonal Worker for the Respondent and had been working for the Respondent since November 2011. His last period of absence had been for the period 19^th December 2014 to the 15^th May 2015 – a period of 21 weeks.

The First Schedule to the Minimum Notice & Terms of Employment Act, 1973 provides

Computable Service

Any week in which an employee is not normally expected to work for at least F13 [ eighteen hours ] or more will not count in computing a period of service.
If an employee is absent from his employment by reason of service in the Reserve Defence Force, such period of absence shall count as a period of service.
If an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of—

( a) a lay-off,

( b) sickness or injury, or

( c) by agreement with his employer,

such period shall count as a period of service.

Accordingly I accepted that that the Complainant had the required service and allowed the claim to proceed.

2: Summary of Complainant’s Case:

2:1 UD Act claim CA-00002981-002

On the 8^th December 2015 a serious verbal altercation took place on the Shop Floor with the Senior Director of the Respondent , Mr. A. This had culminated in the summary dismissal of the Complainant. The Complainant left the job that morning having being told to “get out”.

No procedures were followed and the Complainant’s legal Advisor pointed to the requirements of SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures as well as Section 6 of the Unfair Dismissals Act, 1977. None of the proper procedural requirements were followed. No investigation was carried out and no independent appeal offered.

Accordingly the Dismissal was completely Unfair.

2:2 Section 7 of the Terms of Employment (Information) Act, 1994 CA-00002981-001

The Complainant was not provided with a written statement of his Terms and Condition of Employment.

2:3 Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00002981-003

The Complainant did not receive Minimum Notice as required by Law on his Termination.

2:4 Section 27 of the Organisation of Working Time Act, 1997 CA-00002981-004

The Complainant did not receive his proper legal holiday pay on his termination.

3: Summary of Respondent’s Case:

3:1 UD Act claim CA-00002981-002

The Complainant had been physically aggressive to Manager, Mr. A on the 8^th December 2015. The Summary dismissal was perfectly legal and the only option available to the Respondent at the time. Witnesses were available to substantiate the Respondent’s piston.

3:2 Section 7 of the Terms of Employment (Information) Act, 1994 CA-00002981-001

The Complainant was effectively recruited via his brother and the general employment details of the Brother’s contract that applied to him would have been fully communicated to him via his Brother.

3:3 Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00002981-003

As the Complainant was Summarily dismissed notice does not apply.

3:4 Section 27 of the Organisation of Working Time Act, 1997 CA-00002981-004

All monies due to the Complainant were fully paid up on his discharge from employment. No claim arises.

4: Findings and Conclusions:

4:1 UD Act claim CA-00002981-002

Allowing for some dispute between the parties as to what actually happened both physically and verbally on the 8^th December it was still very clear that no procedures or inquiries have taken place.

Legal precedent is absolute on this point. SI 146 of 2000 – Code of Practice on grievance and Disciplinary Procedures sets out clearly what is required as do the numerous judgments of the higher Courts.

Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

From reviewing the evidence presented It was clear that there were fatal procedural shortcomings in the Respondent’s case. Accordingly the Dismissal was Unfair.

4:2 Section 7 of the Terms of Employment (Information) Act, 1994 CA-00002981-001

The Complainant, on the basis of the evidence available at the hearing, did not receive a statement in writing of his Terms and Conditions.

An appropriate remedy is due.

4:3 Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00002981-003

As the Complainant’s termination was deemed to be an Unfair dismissal the payment of notice is due to the Complainant. The required notice is due to be paid.

4:4 Section 27 of the Organisation of Working Time Act, 1997 CA-00002981-004

The Respondent contended strongly that all holidays had been paid, in keeping with practice of previous years and no monies were due.

5: Decision:

Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 and Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation claims stated under each Act.

For convenience I had set these out in a Tabular form below.

( A weeks pay was variable depending on hours /overtime worked but taking the P45 Total (€18,270/30 = €610) and dividing by the no of weeks worked I estimated that € 610 was an acceptable average)

Act	Complaint/ Dispute Reference No.	Decision / Ref to Section 5 above for detailed arguments.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00002981-001 No Statement in writing of Terms and Conditions	Claim well founded. Redress of One Weeks gross pay awarded € 610 awarded as Compensation for breach of a statutory right.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00002981-002	Claim well founded – no required procedures followed at all. Redress of 16 weeks pay (€610 x 16) = an award of €9,760 Gross Pay. Compensation is for loss of present and potential future earnings. Claimant is now outside Irish jurisdiction and reportedly, on his own assurances, on Social Welfare payments, in Portugal. Amount reflects average length of Seasonal work in Ireland each year. Reinstatement or Reengagement not possible at this stage.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00002981-003 Minimum Notice	Claim well founded. Notice of two week’s pay awarded €610 x 2 = €1,220 Gross awarded as Compensation for Breach of a Statutory right.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00002981-004	Evidence unclear here. Respondent maintained that all monies due were paid at the end of December as was the case in all previous years. I accepted the Bona Fides of the Respondent in this matter. Complaint CA-00002981-004 dismissed.

Dated: 14^th July 2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

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