Complainant

Respondent

Parties

A Worker

A Security Company

Representatives

Hazel Atkins - Sean Ormonde & Co Solicitors. Dan Walshe B.L.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00000254-001

15/10/2015

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00000254-002

15/10/2015

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00000254-003

15/10/2015

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00000254-004

15/10/2015

The complainant commenced working with the respondent on the 29^th January, 2014. He was a store detective. In July, 2015 he was informed via a Whatsapp message that the respondent had lost the contract for the chain of stores he was stationed at. He was given two options. He could opt to transfer over the new entity that had taken over security at the chain of stores he was stationed at or he could move to another chain of stores and remain on with the respondent. Having discussed the matter with several of his colleagues he decided that he would transfer over to the new company so that he could remain on in the store in was stationed at. He informed his manager that that is what he wanted to do. His manager wrote a letter for him setting out which option he was opting for. He signed that letter and his manager sent it off for him. The following day, 28^th, he received a whatsapp from message from head office in the United Kingdom stating :

“ The decision was made today with you talking to Andy about transferring we could not have you working for us while your recruiting for XXX as out staff were going to be transferred to XXXX what XXX have done approaching you is illegal as well. Wish you all the best for the future but the option was given to transfer that was fine however not recruiting from within our company for XXX”

The complainant was never given the opportunity to state his case. In fact there was no disciplinary process whatsoever. He was shocked. This was the first time in his life he had been fired. It caused him financial difficulties which in turn lead to the breakdown of his relationship.

The complainant took a few weeks to reflect on what had happened and to come to terms with it. In Mid September, 2015 he began the process of looking for work. Documentation was produced to corroborate the complainant’s evidence in relation to mitigation of loss. He secured a part time position on the 22^nd February, 2016 and that position was made permanent on the September, 2016. When working part-time he was earning € 397.10 per week gross. From September, 2016 he has no loss.

Calculation of Loss

22.02.2016 - 05.09.2016   €102.97 x 28 weeks  =   € 2,883.16

28.07.2015 - 22.02.2016   €500.07 x 30 weeks  =   €15,002.10

Total loss                                                                  € 17,885.26

The complainant did not receive his one week’s notice.

The complainant at the time of his dismissal was entitled to two weeks holiday pay for which he was not paid.

No Appearance

The complainant in this matter was dismissed from his employment by a Whatapp message and in the absence of any disciplinary process whatsoever. He was not given the opportunity to state his case or to appeal the decision to dismiss him. In those circumstances I find that he was unfairly dismissed.

The complainant has calculated his loss as follows:

22.02.2016 - 05.09.2016   €102.97 x 28 weeks  =   € 2,883.16

28.07.2015 - 22.02.2016   €500.07 x 30 weeks  =   €15,002.10

Total loss                                                                  € 17,885.26

I find that the complainant has satisfied his legal obligation to mitigate his loss. He commenced looking for employment almost immediately after he was dismissed. He took up a part time position on the 22.02.2016 which turned into a full time in September.

Minimum Notice & Terms of Employment Act, 1973

“4.—(1) 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.  

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,”

The complainant is legally entitled to one week notice following the termination of his employment. I calculate that to be € 500.00

Organisation of Working Time Act, 1997.

“19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

The complainant is legally entitled to two weeks holiday pay that was due at the time of his dismissal.