ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00003715

Parties:

Complaint:

Dates of Adjudication Hearing: 05/01/2017 & 21/04/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

Following referral to me by the Director General, I inquired into this complaint of unfair dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977, received by the Workplace Relations Commission (hereinafter ‘WRC’) on 27^th June 2016 and gave the Parties an opportunity to be heard and to present any relevant evidence. Initially, this matter was listed for hearing on 5^th January 2017 and on that occasion, the CEO for the Respondent attended and indicated a difficulty obtaining representation by a HR Consultant on record, owing to the Christmas break. He consented to the amendment of the Respondent’s name to the effect that it is a registered limited company. A Union Representative also attended along with the Complainant on his behalf. I adjourned the hearing to enable the Respondent to avail of representation and given the intended defence as outlined by the CEO below, to produce relevant witnesses and furnish documentation in support of its position.

By letters dated 16^th March 2017, the Parties were notified with details of the resumed hearing date of 21^st April 2017 confirming the venue, date and time. The Complainant was again in attendance with his Union Representative at the scheduled time on 21^st April 2017. There was no appearance on behalf of the Respondent. I confirmed that the Respondent had not contacted the WRC to indicate any difficulty attending. I also made enquiries as to his whereabouts with reception. I further confirmed that the Respondent had not submitted any written submissions or documentation, and there was no request to change the address or Representative on record. The Complainant’s Representative confirmed that he had been in communication with the Respondent’s staff who had indicated that they were aware of the hearing date. All matters considered, I was satisfied that the Respondent had been properly notified of the hearing date. However, I also took the added precaution of allowing thirty minutes to elapse before commencing the hearing and remained in the hearing room for the scheduled duration. All oral evidence, written submissions and supporting documentation presented by both Parties have been taken intoconsideration.

Background:

The Complainant is seeking compensation in respect of a claim of unfair dismissal. He was employed by the Respondent as a Security Guard from January 2013 on a part-time basis. However, from in or around November 2015 and around the same time as a transfer of one of the sites that he had been working on, the Respondent refused to offer him further work, thereby unfairly dismissing him.

Summary of Complainant’s Case:

As the fact of dismissal does not appear to be accepted by the Respondent based upon the CEO’s position at the first hearing and documentation to hand, it is appropriate to set out the Complainant’s case first, and determine whether he was dismissed as a preliminary issue.

The Complainant gave evidence confirming that he had the requisite legal status to enable him to work lawfully in Ireland and also held a PSA Licence, required to work as a security guard. The Respondent provides security services to third parties under various contracts and assigned the Complainant accordingly. Although he was never furnished with a contract or written statement of the terms and conditions of his employment, it was not in dispute that he was an employee of the Respondent. As he was also studying at the material time, the Parties enjoyed a mutually beneficial flexible working relationship whereby he would be rostered work depending upon his availability.

The Complainant also confirmed that at the material time of the termination of his employment, he had been assigned to work between two sites up until October 2015. Thereafter the Complainant was not offered any further work by the Respondent. When he enquired as to his employment status with the Operations Manager, he was told that the Respondent’s contract to provide security services for one of the sites in question had been transferred to Company B, along with all the other security guards working on that particular site. At that stage, the Complainant was given to understand that his employment had been transferred over along with the other employees on that site. He was given contact details for Company B but when he made contact, he was told that they had no record of him as being included in the transfer and refused to offer him any work on the site. Thereafter he made several further attempts to secure further employment with both Companies to no avail. When he sought his P45 from the Respondent, this request was also ignored. Efforts by the Union to resolve the matter before this complaint was referred to the WRC proved unsuccessful.

The Complainant confirmed that contrary to that contended by the CEO at the first hearing, he had not been out of the jurisdiction and was contactable at all material times. The Respondent had his correct home address and mobile number as confirmed in a document furnished. He also confirmed that the Respondent had not written to him about his availability or consulted him in relation to any transfer of undertakings. Overall, he contends that his employment was unlawfully terminated by the Respondent and as the mutual trust and confidence between the Parties has broken down and his circumstances have since changed, he seeks compensation as a remedy. In this respect, he provided details of his efforts to secure alternative employment with other companies and furnished documentation vouching same. He also confirmed that for approximately a year, he had been unable to obtain similar employment/hours and remains on Jobseekers Allowance. His availability for work has since changed upon qualifying as a Carer which he hopes to pursue as a future career.

The Complainant’s Union Representative also furnished an exchange of emails with the Respondent in early 2016, arising from the Union’s enquiries as to the Complainant’s employment status. Emails from staff on behalf of the Respondent included an email dated 21^st January 2016 stating: “As previously discussed (the Complainant) did not receive any authorisation to not be available for work from October onwards and was unavailable. He did not communicate to head office at any stage the reason for his absence, this in my understanding is resignation. If he is available for work then he should let us know and if there is suitable employment for him then we will include him on the rota.” Notwithstanding same, the Respondent had never offered him suitable employment from November 2015 onwards and appeared to be relying upon the casual nature of the working relationship to justify his non-inclusion in the transfer and/or not offering him additional work.

I allowed further periods of time for the Complainant to provide vouching of his losses post-hearing and to make any submissions in respect of same as notified to his Union Representatives on record.

Summary of Respondent’s Case:

The CEO for the Respondent appeared at the initial hearing of this complaint on 5^th January 2017. He accepted that the Complainant had been an employee of the Respondent and there was no issue as to the correct Respondent for the purposes of this complaint. He did not dispute the Complainant’s contention that he had not been offered any further work by the Respondent from in or around November 2015. No other reasons such as lay-off or a redundancy-type situation were proffered by way of explanation for not affording further work to the Complainant. The CEO confirmed that there had been a transfer of undertakings in relation to the contract for one of the sites which the Complainant had been working on around that time. He indicated that he intended running a defence to the effect that it had been intended to include him within the transfer but he had been uncontactable at the material time, was out of the jurisdiction and had effectively abandoned his employment. He indicated that he could produce evidence in support of this defence and the efforts made by the Respondent to contact the Complainant. He also indicated that owing to the Christmas break he had been unable to obtain advice from and/or secure representation at the hearing by his HR Consultant on record. I granted an adjournment to enable him to obtain representation and to produce witnesses and documentation in support of any defence proffered.

As outlined above, there was no attendance on behalf of the Respondent at the resumed hearing on 21^st April 2017, and no further evidence, submissions or documentation was received on its behalf.

Preliminary Issue – Fact of Dismissal:

Firstly, and for a claim of unfair dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977, an employee has to have been ‘dismissed’ within the meaning of Section 1. In the instant case, the CEO of the Respondent contended that the Complainant had abandoned his employment and could not be contacted in relation to the transfer of the contract for one of the sites he had been working on. The Complainant rejected that and contended that from November 2015 onwards, he was not offered any further work by the Respondent and was thereby unfairly dismissed. If it was genuinely considered that he had in fact abandoned his employment, then I would have expected the Respondent to adopt a formal disciplinary or other process properly bringing his employment to an end, and at a minimum a letter to issue to this effect. In this respect, I also note that as the Complainant was never furnished with a written statement of the terms and conditions of his employment pursuant to the Terms of Employment (Information) Acts 1994-2014, there were no contractual terms governing the working arrangements between the Parties.

Based upon the Complainant’s evidence of the extensive efforts he had made to confirm his employment status and/or seek work from both the Respondent and Company B, I am further satisfied that he had no intention of leaving his employment with the Respondent. Given that it is not in dispute that the Complainant was not offered further work from November 2015 onwards and in the absence of any reasonable explanation for same from the Respondent, I am satisfied that he was dismissed within the meaning of Section 1(a) of the Unfair Dismissals Act 1977 which defines dismissal as “the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,”.

Findings and Conclusions:

For the purposes of this complaint, I am satisfied that the Complainant was an employee of the Respondent and had the requisite twelve months’ service under Section 2 of the Unfair Dismissals Act 1977 for the purposes of bringing a claim of unfair dismissal. I further note that although it is difficult to confirm a precise date of the Complainant’s dismissal, this complaint may be marginally outside the requisite six-month period for referral under Section 8(2)(a) of the Act. In circumstances where the Complainant and/or his Union Representative made numerous efforts to confirm his employment status, I am satisfied that he has shown ‘reasonable cause’ [as defined in Cementation Skanska -v- A Worker DWT0425 & Department of Finance -v- Impact (2005) ELR 6] to grant an extension of time pursuant to Section 41(8) of the Workplace Relations Act 2015.

Having found that the Complainant was dismissed within the meaning of the Act, I must consider whether his dismissal was unfair. Section 6 of the Unfair Dismissals Act 1977 places the onus/burden of proving that a dismissal was not unfair on the employer and Section 6(1) 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.” As the Respondent has not provided any evidence to show substantial grounds justifying the Complainant’s dismissal, I find that it has not discharged the requisite onus/burden of proof of showing that the dismissal was fair and have to conclude that he was unfairly dismissed.

Decision:

For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Acts 1977-2015 and conclude that the Complainant was unfairly dismissed by the Respondent. Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded and relevant to the instant case where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…” Section 7(2) sets out the factors to be considered when determining the level of compensation and of most relevance to this case are the measures adopted to mitigate losses. In the absence of a contract confirming normal working hours, 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 remuneration for the year prior to dismissal.

Based upon his evidence and documentation furnished, I conclude that the Complainant made limited efforts to mitigate his losses during the one year period that he was unemployed on Jobseekers Allowance whilst also studying but available for similar security work. Also based upon the vouching documentation provided, it appears that he worked irregular hours and earned more some weeks/months than others. His last payslip dated 28^th October 2015 for €66.24 net had accumulated gross pay for the year (ten months) to date of €5840.90 and a bank statement recorded two lodgements from the Respondent of €1249.38 on 2^nd April 2015 and €397.44 on 5^th October 2015. Therefore, he earned an average of circa €584 per month during the last year of his employment. I consider an award of €3500 (6 months) as being just and equitable having regard to all the circumstances. The Respondent is therefore ordered to pay the Complainant a total of €3500 in compensation (subject to any lawful deductions as confirmed in an amended P45 if required).

Dated:   07/12/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Unfair Dismissal – ‘Dismissal’ in issue – Unfair Dismissals Act 1977