ADJ-00004963

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004963

Complaints for Resolution:  

Date of Adjudication Hearing: 05/01/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The Director General of the Workplace Relations Commission (hereinafter ‘WRC’) referred the aforesaid complaints received on 6^th September 2016 to me, for adjudication in accordance with Section 41(4) of the Workplace Relations Act 2015, Section 8 of the Unfair Dismissals Acts 1977 and Section 39 of the Redundancy Payments Act 1967. I proceeded to hearing on 5^th January 2017, inquired into these complaints and gave the Parties an opportunity to be heard and to present any relevant evidence.  The Complainant was represented by Mr Conor Byrne BL, instructed by Tracey Solicitors, and an Interpreter was in attendance to assist with translation at the hearing. There was no appearance on behalf of the Respondent, a registered limited company. The Respondent had not made any application for an adjournment or otherwise engaged with the WRC. I was informed by the Complainant’s Representatives that it had ceased trading in or around October 2016. Before proceeding to hearing, I satisfied myself that all correspondence including notification of the hearing date had issued to the correct registered address for the Respondent. I also confirmed that its CRO trading status was ‘normal’ and that a Receiver had not been appointed. All oral and documentary evidence presented have been taken into consideration along with the relevant legal provisions.

Attendance at Hearing: 

Complainant’s Submission and Presentation:

The Respondent is a limited liability company who ran a Café franchise in an Irish shopping centre. The Complainant was employed by the Respondent as a General Operative in the Café from 3^rd March 2012 until her dismissal on 28^th August 2016 (being the date on her P45 furnished to her Solicitors via Revenue and also to her via the Respondent’s Accountants). She was never furnished with a written contract of employment and/or statement of the terms of her employment despite requesting same in a letter dated 9^th March 2015 to the Respondent, also raising various issues with her employment. In a letter dated 8^th December 2013 written on her behalf, the Complainant’s Manager and one of the Directors, Ms A had confirmed that she was a full-time permanent member of staff. In the absence of a contract, the Complainant’s working hours were never specified in writing and varied between 35 and 50 hours per week. She was paid €10 per hour and received an average of €380 as evidenced by her payslips taken over the last year of her employment.

The Complainant enjoyed a good working relationship with the Respondent and her employment was uneventful until 13^th August 2016 when she had an accident in the kitchen at work resulting in an injury to her foot. Initially the injury did not seem to affect her but in the course of the day, her foot became increasingly swollen and painful. She texted Ms A requesting the following day off. Ms A queried the extent of her injury by text but said that she could take the day off. There was a further exchange of text messages between the Complainant and Ms A on 15^th August 2016, whereby Ms A asked how her foot was and the Complainant informed her that as it was still swollen, she taking a further few days off on sick leave and enquired about dropping in a sick certificate. She was on further certified sick leave until 28^th August 2016. When she informed Ms A of same by text confirming that she would be back in work on Monday 29^th August 2016, Ms A texted back: “That’s great. Take as much time as you need. I’ve plenty of staff. No rush back.” There was a noticeable change in attitude towards the Complainant from then onwards and Ms A appeared to be avoiding her. On 25^th August 2016, the Complainant called into the Café for Ms A sign a form required to obtain Illness Benefit for that period but she was not there as per a further text message exchange. During this period off work she recalled being able to see Ms A at the Café on one occasion, when Ms A had asked to see her foot commenting with words to the effect that there was nothing wrong with it. Ms A said that she would contact her in relation to her return to work and it was not necessary to text her or call in again. From 29^th August 2016 when she was certified as fit to return to work and having heard nothing further from Ms A, the Complainant made numerous attempts to contact her including attending at the Café premises on a number of occasions to enquire about her return, but Ms A was either not there or was otherwise unavailable. On one of those occasions, another member of staff informed her that Ms A had instructed staff that she was not welcome back on the premises and specifically was not permitted to go into the kitchen to check the roster. The Complainant submitted these complaints to the WRC through her Solicitors on 6^th September 2016.

As the Complainant found herself without any work, in early September 2016, she attended her local Social Welfare Office to apply for Job Seekers Benefit. The Deciding Officer rang Ms A and her note dated 14^th September 2016 stated: “Spoke to the manager today re above named employment. She states that there is work for client and that no P45 issued. I clarified from her that client should contact her for hours.” On foot of this, the Complainant texted Ms A from the Social Welfare Office seeking confirmation of her hours and commencement of work but again received no response.

By letter dated 15^th September 2016 from the Department of Social Protection, the Complainant’s application for Jobseeker’s Benefit was refused on the basis that she was still in employment as prescribed for social welfare purposes. In this respect, it was submitted that the information provided by Ms A to the Deciding Officer had been in direct conflict with the P45 dated 28^th August 2016, as subsequently furnished and Ms A had clearly misled the Deciding Officer in question. The Complainant sent one final text message to Ms A on 20^th September 2016 stating: “…can you stop ignoring me all the time? You promised me work hours last week in front of Social Welfare Officer, so I’m asking where they are? This is 4^th week and I still don’t have any messages from you.” She also asked for confirmation of whether she was still employed or had been fired, in which case she requested her P45. She said that she would take the matter further if Ms A continued to ignore her. Once again she received no response. She was subsequently informed by another member of staff that the Respondent had suddenly ceased trading in mid-October 2016. The Complainant was unable to obtain Jobseekers’ Benefit in the absence of a P45 and secured alternative employment in another Café approximately 10 weeks later at a lower hourly rate by approximately €1 per hour. A copy of all relevant correspondence, text messages and wage slips were furnished at the hearing.

Arising from the aforesaid, the Complainant claims that she was not provided with a statement in writing of her terms of employment pursuant to the Terms of Employment (Information) Act 1994, she was unfairly dismissed contrary to the Unfair Dismissal Act 1977 without her statutory minimum notice or pay in lieu of notice pursuant to the Minimum Notice & Terms of Employment Act 1973. She sought financial compensation in respect of the unfair dismissal. Counsel on her behalf also confirmed that as she was pursuing a claim for unfair dismissal, the claim for redundancy under Section 39 of the Redundancy Payments Act 1967 - CA-00006838-004 could be withdrawn.

Respondent’s Submission and Presentation:

There was no appearance on behalf of the Respondent at the hearing, the notification of the hearing date having issued to its correct registered address on 1^st December 2016. There is no record of the Respondent contacting the WRC to indicate any difficulty with attending or to seek an adjournment. A period of at least 28 days has elapsed after the hearing before issuing this decision, to allow for the Respondent to contact the WRC with an explanation for its non-attendance but no such contact has been made. I also note that the Respondent has not engaged with the WRC or submitted any written submissions or documentation. It appears that the Respondent’s non-engagement arises from the fact that it has apparently ceased trading since mid-October 2016. In the circumstances, no evidence has been proffered on behalf of the Respondent in defence of these complaints.

Findings & Conclusions:

It is necessary to examine the aforesaid facts giving rise to each of the Complainant’s complaints made herein against the Respondent in light of the relevant legislative provisions as follows:

Complaint under Section 8 of the Unfair Dismissals Act 1977 - CA-00006838-001

The Complainant complains that she was unfairly dismissed by the Respondent when her Manager, Ms A (also one of the Directors) refused to offer her any work after her return from a workplace accident on 29^th August 2016, and she was subsequently furnished with a P45 dated 28^th August 2016. I am satisfied that she had more than 12 months service for the purposes of bringing a claim of unfair dismissal under the of the Unfair Dismissals Act 1977 (hereinafter also referred to as ‘the Act’) and that her complaint was brought within the requisite six month time limit from the date of dismissal. I also find the Complainant’s evidence that Ms A refused to offer her any further work in breach of her contract of employment after she was certified fit to return to work on 29^th August 2016 (following a workplace accident on 13^th August 2016) credible. This was corroborated by text messages and documentation from her Social Welfare Office. I am therefore satisfied that her employment was terminated without prior notice by the Respondent as confirmed by her P45 dated 28^th August 2016, the day before she was due to return to work, constituting dismissal within the meaning of Section 1 of the Act. Section 6(1) of the Act provides: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” Section 6(2)-(5) further defines the circumstances constituting an unfair dismissal and what is deemed not to constitute an unfair dismissal. In relation to the burden/onus of proof, Section 6(6) provides: “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.” Section 7(3) of the Act provides that “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;” There was no appearance on behalf of the Respondent at the hearing and no evidence was proffered in discharge of the onus of proof.

Decision:

Section 8(1B) of the Unfair Dismissals Act 1977 requires that I make a decision in relation to a claim of unfair dismissal, consisting of a grant of redress in accordance with Section 7 of the Act. As no evidence was proffered on behalf of the Respondent at the hearing, it has not discharged the burden/onus of proving that the Complainant’s dismissal was not unfair and consequently, I find that this complaint is well-founded. Section 7 of the Act provides for the various forms of redress available upon a finding of unfair dismissal including reinstatement, re-engagement and financial compensation (not exceeding 104 weeks remuneration in respect of the employment from which s/he was dismissed, calculated in accordance with Regulations under Section 17 of the Act). In circumstances where the Respondent has ceased trading and the Complainant has since commenced employment with a new employer, I consider an award of compensation in respect of financial loss attributable to the dismissal under Section 7(1)(c)(i) of the Act appropriate. I am also satisfied that she was faultless in relation to her dismissal and she has mitigated her losses by quickly securing alternative employment. In the absence of a contract confirming normal working hours which varied, Regulation 11 of S.I. No. 287/1977 – Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 applies for the purposes of calculating weekly remuneration, requiring an average weekly remuneration for the 52 week period prior to dismissal. In the instant case, this was calculated at approximately €380 per week. As the Complainant was out of work for approximately 10 weeks, I order the Respondent to pay her €3,800, being the equivalent to 10 weeks wages and a further 5 weeks wages of €1,900 in respect of prospective loss owing to her reduced hourly rate of pay which is unlikely to change in the foreseeable future, amounting to a total of €5,700 (less any lawful deductions), as being just and reasonable having regard to all the circumstances.

Complaint under Section 11 of the Minimum Notice & Terms of Employment Act 1973 - CA-00006838-003

The Complainant complains that upon the termination of her employment, she was not given her statutory minimum notice or pay in lieu. Section 4(1) of the Minimum Notice & Terms of Employment Act 1973 provides: “An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.” Section 4(2) sets out the periods of minimum notice to be given by an employer to terminate the contract of employment of an employee based on years of service. In the instant case, the Complainant had more than four years but less than five years’ service. Section 4(2)(b) provides: “The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be- (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,”. I am satisfied that the Complainant’s evidence in this respect was wholly credible as corroborated by text messages and the documentation from her Social Welfare Office and that the Respondent contravened this Section. In the absence of any evidence from the Respondent, this was not rebutted.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I find this complaint to be well-founded for the reasons set out aforesaid. As specified by Schedule 6, Section 12(1)(b) of the Minimum Notice & Terms of Employment Act 1973 provides: “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.” I therefore direct the Respondent to pay the Complainant two weeks’ remuneration, being the loss sustained by reason of the contravention. As the Complainant’s average weekly wage was €380, this equates to €760 (less any lawful deductions).

Complaint under Section 7 of the Terms of Employment (Information) Act 1994 - CA-00006838-002

The Complainant complains that she was never furnished with a statement of the terms of her employment despite previously requesting same in writing. Section 3(1) of the Terms of Employment (Information) Act 1994 provides that an employer shall, not later than two months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the terms of the employee’s employment and lists the required terms to be set out. I am satisfied that the Complainant’s evidence was wholly credible in this respect and in the absence of any evidence from the Respondent, was not rebutted. I also consider this to be an ongoing contravention of the Act for the purposes of the six-month time limit as specified in Section 41(6) of the Workplace Relations Act 2015. Further, I consider such contravention to be on the most serious end of the scale in circumstances where the absence of written terms of employment left the Complainant in a nebulous position when she sought to return to work from 29^th August 2016 after her accident at work. In particular, she was unable to rely upon any written terms of employment specifying her sick leave and weekly working time entitlements when seeking a return to work.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I find this complaint to be well-founded and am satisfied that the Respondent acted in contravention of Section 3(1) of the Terms of Employment (Information) Act 1994. As specified by Schedule 6, Section 7(2)(d) provides for an award in respect of a contravention of this Section of: “compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.” Having regard to all the circumstances and given the serious nature of the breach and its consequences, I deem it just and equitable to order the Respondent to pay the Complainant compensation equivalent to the maximum sum of 4 weeks’ remuneration. As the Complainant’s average weekly remuneration was €380, this equates to compensation of €1,520.

Overall Award:

Overall and for the avoidance of doubt, the Respondent is ordered to pay the Complainant a total of €7,980 within 42 days of the date hereof, comprising of €5,700 for economic loss in respect of her complaint under Section 8 of the Unfair Dismissals Act 1977, €760 for economic loss in respect of her complaint under Section 11 of the Minimum Notice & Terms of Employment Act 1973 and €1,520 in compensation in respect of her complaint under Section 11 of the Minimum Notice & Terms of Employment Act. Therefore, €6,460 is in respect of economic loss (less any lawful deductions properly confirmed in an amended P.45) and €1,520 is in respect of compensation. Finally, it is noted that the complaint under Section 39 of the Redundancy Payments Act 1967 was withdrawn.

Aideen Collard, Adjudication Officer

Dated:   08 March 2017