ADJ-00004379

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004379

Complaints for Resolution:  

Date of Adjudication Hearing: 10/01/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure: 

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

Background

The Complainant has been employed by the Respondent from 1^st May 2007 until the employment terminated on 15^th February 2016 when the Complainant alleges he was constructively dismissed. The Complainant was paid €1346.00 gross per fortnight and he worked 40 hours a week. The Complainant referred complaints to the Workplace Relations Commission on 25^th July 2016 alleging the Respondent had breached the Terms of Employment (Information) Act, 1994, had breached the Payment of Wages Act, 1991 and that he had been unfairly dismissed. 

Summary of Complainant’s Position.

Terms of Employment (Information) Act, 1994.

The Complainant stated that he had not been provided with a written statement of his Terms and Conditions of Employment. 

Payment of Wages Act, 1991

The Complainant stated that he had been on certified sick leave since early January 2016 and he received wages up to 14^th January 2016. However he has not been paid his wages to 28^th January 2016 and he was informed that he would not be paid while on sick leave. The Complainant stated that it was custom and practice to pay employees while on sick leave. He is claiming payment of €1346.00 sick pay. 

Unfair Dismissals At, 1977.

The Complainant stated that he was constructively dismissed on 15^th February 2016. The Complainant stated that his uncle was a long term employee of the Respondent. In or around December 2015 his uncle became ill and was hospitalised and he died on 6^th December 2015. The Complainant stated that an incident occurred in the Hospital where his uncle was hospitalised when two employees of the Respondent attended the Hospital accompanied by two Solicitors with a view to the Uncle making his last will. The Complainant stated this was done without his knowledge.

The Complainant attended the Hospital and there was a heated discussion during which the Complainant alleged that he was informed by a named employee of the Respondent there would be repercussions from the incident.

The Complainant stated that following the death of his uncle he was on certified sick leave. He was concerned in relation to the incident at the Hospital and following consultation with his Solicitor they wrote to the Respondent on 15^th February 2016 but there was no response.

The Complainant remained on Illness Benefit from the Department of Social Protection to June 2016 and afterwards on Jobseekers Benefit and took up employment in October 2016 where he earns €29,000.00 per annum.

The Complainant is seeking compensation. 

Summary of Respondent’s Position.

Terms of Employment (Information) Act, 1994.

The Respondent confirmed that the Complainant had not been provided with a written statement of his Terms and Conditions of Employment. 

Payment of Wages Act, 1991

The Complainant did not attend work after 6^th December 2015 until 13^th and 14^th January 2016 but he was paid up to 14^th January 2016. The Complainant was on certified sick leave effective from 15^th January 2016 and he remained on certified sick leave until 30^th April 2016 when the last medical certificate was submitted on 31^st March 2016 to cover up to end of April 2016. The Complainant stated on the Complaint Form that he was dismissed on 15^th February 2016. The Complainant also posted a note on Facebook on 23^rd December 2015 describing himself as “former counsellor at (named)”.

There was an incident outside the workplace, involving the Complainant and his uncle which was totally unconnected to any issue within the workplace.

The Complainant’s Solicitor wrote to the Respondent on 15^th February 2016 and the Respondent replied on 20^th May 2016.

The Respondent stated that there is no custom and practice to pay for long term sick leave. 

Unfair Dismissals Act, 1997.

The Complainant alleges that he deemed himself to be dismissed on 15^th February 2016 following the failure of the Respondent to respond to correspondence issued by his Solicitor. The Complainant was paid up to 14^th January 2016 and he commenced certified sick keeve on 15^th January 2016 and continued to submit medical certificates to the Respondent, the last one received was dated 31^st March 2016 and the Complainant was certified unfit for work up to 30^th April 2016 – copies submitted at the Hearing.

The Respondent stated that the Complainant’s Solicitor wrote to the Respondent on 15^th February 2016. The Respondent’s Solicitor contacted the Complainant’s Solicitor with a proposal but his was ultimately rejected by the Complainant and this is confirmed in the Complaint Form submitted to the WRC.

The Complainant requested his P45 in August 2016. There was no letter of resignation received from the Complainant. 

Findings

Terms of Employment (Information) Act, 1994

Section 3 of the Act provides that an Employer must provide an employee with a written statement of Terms and Conditions of Employment within the period of 2 months of the commencement of the employment with the Employer. Both Patties confirmed at the Hearing that the Respondent did not provide a written statement to the Complainant for the duration of his employment. I find the Respondent has breached Section 3 of the Act. 

Payment of Wages Act, 1991.

The evidence was that the Complainant submitted medical certificated to the Respondent to cover the period up to 30^th April 2016 according to the final medical certificate submitted by the Complainant dated 31^st March 2016.

However the Complainant on the Complaint Form state that he was constructively dismissed on 15^th February 2016.

The Complainant is claiming payment of two weeks wages while on sick leave from 15^th January to 28^th January 2016 and he alleged that custom and practice within the Respondent Company was to pay wages while on sick leave. There was no evidence presented to support this. Neither did the Complainant explain why if he submitted medical certificates to cover up to 30^th April 2016 he was only claiming payment of wages up to 28^th January 2016.

Section 5 of the Payment of Wages Act, 1991 provides that an Employer shall not make a deduction from an employee unless it is provided for by way of statute – is provided for in the Employees Contract of Employment in force at the time or if the Employee has consented in writing to the deduction.

I find there was no evidence presented by the Complainant to support his allegation that the Respondent contravened Section 5 of the Act when they did not pay him 2 weeks wages while he was on sick leave. 

Unfair Dismissals Act, 1977.

The Complainant in the Complaint Form states that his employment terminated on 15^th February 2016 when the Respondent failed to respond to a letter from his Solicitor of the same date. The Complainant confirmed at the Hearing that there were discussions between his Solicitor and the Solicitor for the Respondent following this but the proposal from the Respondent was rejected by the Complainant.

The Complainant also confirmed to the Hearing that he continued to submit medical certificates to the Respondent to cover his absence up to 30^th April 2016.

The Complainant also confirmed at the Hearing that he did not terminate his employment by informing the Respondent of this.

I find that on the basis of the evidence the Complainant was not constructively dismissed by the Respondent on 15^th February 2016 in circumstances where the Complainant continued to submit medical certificates to his Employer certifying him unfit to attend work up to 30^th April 2016. 

Decision

Terms of Employment (Information) Act, 1994 CA-00006198-001

In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €1000.00 within 42 days of the date of this Decision. 

Payment of Wages Ac t, 1991 CA-00006198-003

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and in view of my findings above I declare this complaint is not well founded. 

Unfair Dismissals Act, 1997.CA-00006198-002

In accordance with Section 8(1C) of the Unfair Dismissals Act, 1977 and in view of my findings above I declare this complaint is not well founded. 

Rosaleen Glackin 

Adjudication Officer 

Date:___03 March 2017___