ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008005 conjoined with ADJ 7418
Parties:
| Complainant | Respondent |
Parties | A Manager | A Pizza Company |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00010596-001 | 03/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00010596-002 | 03/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00010596-003 | 03/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00010596-004 | 03/04/2017 |
Date of Adjudication Hearing: 01/08/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 11 of the Minimum Notice and Terms of Employment Act,1973, Section 6 of the Payment of Wages Act, 1991 and Section 27 of the Organisation of Working Time Act , 1997 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 submitted that a transfer of undertakings occurred at his workplace during December 5, 2016, the effect of which caused him to lose his job .This case is con joined with ADJ 7418. |
Summary of Complainant’s Case:
The Complainant, a British National commenced work as a General Assistant at a Pizza Business on 21 September,2015 He signed a contract of employment for a 20 hour week on 21 September . In October, 2015, he was offered the Managers position, without an increase in wages and worked a 54 hour week over a 6 day week. He worked this arrangement until December 5, 2016 .He received a nett payment of €83 per day and there was a disparity in the electronic pay slips which under recorded the payments, which were made in cash. Every Sunday, the Complainant submitted that he reported to the owner of the then business, Mr A via text and phone. He submitted records of the exchange of texts from December 2015 to 24 October 2016. He submitted that he reported on weekly sales, expenditure, staff pay, rent and proceeds banked. He had a good relationship with the then owner, Mr A .On 5 December, 2016 he was informed that the Business had been sold to Mr B. CA-00010596-001 On 5 December 2016, the complainant arrived for his shift at 3.30 pm as usual to find the then owner there in the company of 5 men, he didn’t know. Mr A told him that one of the five men was Mr B, the new owner and that the complainant’s job was gone .This was the first that the complainant had heard of this and was shocked. The Complainants representative detailed that Mr B told the complainant that he had his own staff, who were relatives of Mr B. The Complainant then commenced work before he was asked to leave the premises by Mr B. The Gardaí were called, who informed the complainant that he should work for the rest of the shift, which he did. Mr A paid the complainant €2,500 in unpaid holiday pay . At the end of the day ,the complainant stated that he had been pushed around and had €1,000 taken from his pocket .The Complainant submitted a complaint of assault , which is currently before the DPP .The Complainant wrote to Mr B on 13 December seeking payment for his days pay ,one months pay in lieu of notice and compensation for unfair dismissal He did not receive a reply and tried again on 6 the January, 2017 without success. He requested a copy of his employee file from Mr A, only to be informed on 28 March 2017 that the business had been transferred to Mr BSc company business name. His P 45 was attached, where the incorrect PPSN number was listed and the PRSI details were incorrect. The Complainant contended that he had been unfairly dismissed as Mr B terminated his employment without notice on the day that a Transfer of Undertakings had taken affect at the business .The Complainant had submitted mirrored claims in ADJ 7418 naming the transferee as the Respondent . Evidence of the Complainant : The Complainant submitted that he had heard some talk about a new owner taking over the business as the Driver had told him that his own job was safe, based on his local knowledge of the area. During the last week of November, he sought advice on the prospect of a change in the business. He recalled December 5, 2016, when he attended for work, Mr A introduced Mr B as the new owner. He sought to clear up some details with Mr A and asked him “What is happening am I losing my job?” Mr A told him that he didn’t know and he needed to talk to the new owner, Mr B. He tried to ascertain what was happening with Mr A but there was conflict surrounding keys and Mr A. called the Gardaí to the premises .The Gardaí went upstairs and finally he received €2,500 in payment for unpaid annual leave from Mr A with an undertaking that he would receive the rest on the following Sunday . This did not happen. The Gardaí told him to work until the end of his shift .Mr A. agreed to go to the Department of Social Protection Office with him. He carried on working his shift; he was then informed by Mr B that there was no job for him as his own relatives were coming to work in the business. They all left the premises, leaving one of the new staff remaining with the complainant . He prepared to cash up the takings for the day when the phone rang for the new staff .He was informed that the new owner was on the phone and had directed that he shouldn’t count the takings .At this point, he stated that he had the receipt and the money in his hands .A scuffle ensued where €1,000 was removed from his person .He left the shop with his €83 for his days work and reported the incident to the Gardaí the next day. He had paid the Driver €163. Of the three staff working at the shop before December 5, 2016 only the Driver was retained, the other colleague had booked his ticket home to Pakistan. The Complainant submitted a copy of a text dated 7 December which stated : “ Come tomorrow , im giving ur bank card and landlord bank card and Monday money and bring my P45” The Complainant stated that he received his P45 in March 2017 with omissions by his former employer .He gave evidence of loss and Mitigation .The Complainant submitted that he was unfairly dismissed in contravention with the Transfer of Undertakings Regulations . The Complainant stated that the dismissal had a devastating affect on him, socially and financially. He submitted that he is a Father to a young son and has found it hard to get work without a reference. He was very disappointed with the manner in which he had been treated. CA-00010596-002 In accordance with his contract of employment, the Complainant should have been given one months notice when his employer terminated his contract of employment without notice. CA-00010596-003 In accordance with his contract of employment, the complainant was entitled to pay for December 5, 2016. CA-00010596-004 From September 2015 to 5 December 2016 there were 10 public holidays for which the complainant did not receive any extra pay or holidays. |
Summary of Respondent’s Case:
There was no appearance by or on behalf of the Respondent at Hearing. |
Findings and Conclusions:
I have given consideration to the Complainants Oral and Written presentations. Given that the burden of proof rests with the Respondent in a claim for Unfair Dismissal and given the clear disputes contained in the case, I am left to conclude that the non appearance of the Respondent was unhelpful to my consideration of the facts of the case. I noted that the Complainant did not submit evidence of Garda involvement in the case. Given the numerous reported contact times with the Gardaí. I found this unusual. CA-00010596-001 This is a claim for Unfair Dismissal based on the submission that the complainant’s employment was terminated on the occasion of a Transfer of Undertakings .There was no live claim under the Transfer of Undertaking Regulations per se. Council Directive No 2001/23/EC of 12 March 2001(the Acquired Rights Directive) is the third Directive on the approximation of the laws of the Member states relating to the safe guarding of employees’ rights in the event of transfers of undertakings, business or part of undertakings or businesses. In Murphy and Regan Employment Law , Second Edition, Bloomsbury ,2017,.Gary Byrne, outlined the history of the adoption of the wording of the Directive verbatim by way of Statutory Instrument on 11 April ,2003 contained in : The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.These regulations effect compliance with the 2001 Acquired Rights Directive. In Suzen V Zehnackerr Gebaudereinignung GmbH Krankenhaussservice , the ECJ observed : “ The aim of the Directive is to ensure continuity of employment relationships within an economic entity ………The term economic entity thus refers to an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective “ The Irish Regulations apply to any transfer of a business from one employer to another employer as result of a legal transfer, providing it retains its identity. I noted the text sent by the complainant to the former employer at 12.15am on the morning of 5 December, 2016, where he totalled the takings. This was followed by a request to lodge the takings. The Employee: Employer relationship was still intact at that time. This was overtaken by the confirmation of sale by both Mr A and Mr B at 3.30 pm later that day. I am satisfied based on the uncontroverted evidence of the complainant and the application of the Regulations , that a transfer of undertakings occurred from Business A , where Mr A was the owner ,employer and now Transferor to business B, where Mr B was now the owner , employer and now Transferee sometime in the early part of December 5, 2016. Regulation 5 of the Regulations provides that a transfer of a business is not a basis for dismissing an employee .Dismissal is prohibited in such instances. Regulation 8 imposes an obligation on the Transferor to inform and consult employees regarding the date, reason and legal implications of the transfer, not later than 30 days before the transfer occurs. Duffy Meats ltd T/A Kerry Foods and William D’Arcy et al TUD 161 Labour Court, March 2016. I could not establish any consultation with regard to an impending change of ownership outside the rumour mill. In An EAT case of Guidon V Hugh Farrington and Ushers Island Petrol Station [1993] ELR 98, where the claimant worked at a Seven Eleven store, owned by Mr Farrington .A receivership and surrender of lease followed on 14 June 1991.The claimant returned to work the following Monday, 17 June, 1991 and was informed that her employment had been terminated. Her claim for Unfair Dismissal against the transferee succeeded as the dismissal of the claimant on the grounds of transfer was held to be prohibited by the EU Directive and Irish Regulations. Notwithstanding the serious deficits in the management of an impending sale of business and its predicted impact on the complainant, by the Transferor , Mr A , I find that the Respondent satisfies the test with regard to the definition of the employer for the purposes of the Unfair Dismissals Legislation where the Employer is defined in Section 1 of the Act as: “Employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment. Section 6 of the Unfair Dismissals Act 1977-2015 sets out the parameters of an Unfair dismissal. 6
I have not heard from the Respondent in this case. I am satisfied that the Company was on notice of the claim and received reminders seeking a written submission, but did not appear before the hearing or give any reason for the non appearance. I would have liked to have heard both sides recollection of the events surrounding December 5th, 2016. On that basis , I could not establish any evidence of substantial grounds justifying dismissal .I have considered the uncontroverted evidence provided by the Complainant at hearing taken in tandem with representations made on his behalf by his Representative on the circumstances surrounding dismissal .I am also persuaded by the efforts made by the Complainant to contact the Respondent on 13 December 2016,6 January,2017 ,10 February 2017 and at company headquarters on 7 April 2017, all of which appeared to go unheeded . I appreciate that an Employer may argue that a Dismissal may be justified due to technical, economic or organisational reasons involving changes in the workforce. However, no such argument was advanced in this case. I found that the Respondent showed scant regard for the rules and regulations that accompany the purchase of a business where there are existing staff and particularly in the case where the Business has decided to retain one third of the workforce, i.e. the Driver. I have found that the Complainant can rightly consider himself to have been unfairly dismissed.
CA-00010596-002. The Complainant is seeking the contractual notice terms of 4 weeks pay in lieu of notice. I have found that a Transfer of Undertakings occurred on 5 December 2016 and the liability for the notice periods rests with the respondent. I have found that the complainant was unfairly dismissed and is entitled to the statutory redress of one week .I order the respondent to pay the complainant one weeks pay in lieu of notice. CA-00010596-003 The Complainant confirmed in evidence that he had made provision for his days pay in the takings of 5 December and had placed the €83 in his pocket .I find the complaint to be not well founded . CA-00010596-004. I have found that a Transfer of Undertakings occurred on 5 December 2016 and the Respondent is liable for the outstanding Public Holiday .The Claim was lodged on April 3, 2017 which defines the cognisable period for the claim as 2 October, 2016 which covers 3 instances Public Holiday .I find in favour of the complainant on these three breaches of the Legislation.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00010596-001
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have considered the complainants evidence on Loss and Mitigation. I have also considered the uncontroverted evidence of the circumstances of the summary dismissal which breached all rules on fair procedures and Natural Justice .I am also mindful of Regulation 5 of the Transfer of Undertakings Regulations ,2003 where dismissal is prohibited save on specifically arguable grounds .I find that compensation is the only practical remedy open to me in this case .I order the Respondent to pay the Complainant €10,000 in compensation in respect of the Unfair Dismissal .
CA-00010596-002 Section 11 of the Minimum Notice and Terms of Employment Act,1973, requires that I make a decision in relation to the complaint .I have found the complaint to be well founded and order the Respondent to pay the claimant one weeks pay in lieu of notice .
CA-00010596-003 Payment of Wages Act, 1991
I have found this complaint to be not well founded.
CA-00010596-004 Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in the case .I have found the complaint to be well founded and I order the Respondent to pay the complainant €300 in compensation for the breach of the Legislation.
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words: 23/10/17
Unfair Dismissal, Minimum Notice, Pay, Public Holidays. |