ADJ-00004361

Complainant

Respondent

Parties

A Building Worker

A Building Company

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-00006371-001

09/08/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00006371-002

09/08/2016

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

CA-00006371-003

09/08/2016

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

CA-00006371-004

09/08/2016

1)     The Unfair Dismissal Act Complaint : CA-00006371-001

The Complainant was a directly employed casual employee of the Respondent building company. The Respondent was a sub-contractor to a major joinery contractor in the South of Ireland. He worked when work was available and was effectively on Social Welfare when work was unavailable. He was an unskilled employee.

On the 26^th February 2016 the Respondent’s vehicle was broken into and all necessary tools stolen. As the Complainant had no tools of his own, to any required standard and the Respondent now had no tools either the Complainant was informed that there was no work available for him.

On or about the same time the main Contractor indicted that he would prefer if the Respondent engaged a fully qualified Carpenter to work on his jobs. The Respondent then took steps to see if he could secure a fully qualified carpenter. As he had no tools of his own at that stage the only option was to seek a self-employed carpenter who would have his own tools.

In summary the Complainant was a casual unskilled employee and the work available for him came to an end –albeit in this case the theft of the Respondent’s tools was the triggering factor. As he was not fully qualified the Respondent was no longer in a position to reemploy him. Unfair Dismissal did not arise as the Complainant was fully aware that his relationship was that of a Casual and when work ended he had to go to Social Welfare benefits.

2)   Terms of Employment (Information) Act, 1994 Complaint : CA-00006371-002

The Complainant had no written contract of employment. However the working arrangements were clear and understood by all parties. There is only a technical breach of the Act here.

3)       Minimum Notice & Terms of Employment Act, 1973 Complaint : CA-00006371-003

Notice does not arise as the ending of the work was the same as always – a causal relationship ended when work became unavailable

4)     Organisation of Working Time Act, 1997. : CA-00006371-004

Holidays did not really arise here – the Complainant and the Respondent had a causal relationship. The requirement for formal holidays never really arose as the times when work was slack would be effectively holidays for the Complainant. There had been occasions in the past that the Respondent had paid the Complainant for some days when he was not at work –these could best be described as Holidays.

1)           The Unfair Dismissal Act Complaint : CA-00006371-001

The Complainant was informed by Text message on the 27^th February that there was no more work available for him. He made numerous efforts to contact the Respondent but to no avail. On the 11^th march he received his P45 in the post. No procedures of any nature were followed and the dismissal was completely unfair  

2)         Terms of Employment (Information) Act, 1994 Complaint : CA-00006371-002

The Complainant never received any written terms of employment or information what so ever. The Act is completely breached.

3)         Minimum Notice & Terms of Employment Act, 1973 Complaint : CA-00006371-003

The Complainant did not receive any notice pay whatsoever on the ending of his employment.

4)         Organisation of Working Time Act, 1997. : CA-00006371-004

The Complainant never received any Holiday Pay, either Annual Leave or Public Holidays. He is entitled to the appropriate Holidays ,both Annual leave and Public , under the Terms of the Act for 2015 and to the date of the ending of the employment in 2016

   1: The Unfair Dismissal Act Complaint : CA-00006371-001

The relevant Law: The Unfair Dismissal act 1977 and S.I. No 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures. The key principle being that at all time the rules of Natural Justice have to apply.

The employment relationship was extremely casual but as the Social Welfare documents exhibited displayed the employment relationship was there since at least the 1^st of January 2015.

In the evidence given it was clear that the Respondent had not actually carried out any Employment/Fair Dismissal procedures at all. In mitigation the text message of the 27^th February 2016 refers to “No more work until further notice” as against a formal dismissal /termination. In oral evidence the business difficulties of the Respondent and the requirements of the main Joinery Contractor were discussed. The Complainant was unskilled and the Respondent could no longer offer him work.

On balance having reviewed all the evidence, mostly oral, it was clear to me that much better communications ought to have been maintained with the Complainant regarding the difficulties with the main Contractor and the issue of skills required. Options could have been explored.

During 2015 the Complainant had been on variable work, days on /days off and getting Social Welfare for periods when no work was available.   This could well have been the case here going forward from February 2016.

The key differentiating issue was, I thought, the issuing of the P45 on the 11^th March and the placing of adverts by the Respondent (on the 4^th March) for a self-employed person. The employment relationship of the Complainant as a direct employee was, if not clearly over, certainly now very questionable.

Accordingly I came to the view that the Complainant had been dismissed, as a directly employed employee, without any proper procedures. It was, accordingly, Unfair.

Redress:

As require by Section 8 of the Unfair Dismissal Act I am required to make an award of redress in accordance with Section 7 of the Act.

Taking into account that the Employment Relationship was effectively very casual and the Complainant could not have had any great expectations of long term work I make an award , of € 3,250 being roughly 6 weeks’ pay at the average week of 3.6 days ( averages calculated from Social Welfare Sheets - € 535 by 6 = €3,210.) The award is I feel just and equitable in all the circumstances of the case.

(The award is expressed as Gross Pay and the issue of the appropriate taxation is a matter for the Respondent and the Revenue Commissioners.)

2)   Terms of Employment (Information) Act, 1994 Complaint : CA-00006371-002

Absolutely no written contracts existed. The Act is completely breached.

Redress:

There was no material detriment to the Complainant and the relationship was agreed by all to have been very casual. None the less, I award the sum of €100 as compensation to the Complainant for the breach of the Act. The amount is Compensation for breach of a statutory right.

3:     Minimum Notice & Terms of Employment Act, 1973 Complaint : CA-00006371-003

The Complainant did not receive proper statutory notice.

Redress

I, accordingly in keeping with Section 11 of the Act, award the sum of one weeks’ notice pay

being a sum of € 535.

(The award is expressed as Gross Pay and the issue of the appropriate taxation is a matter for the Respondent and the Revenue Commissioners.)

4:   Organisation of Working Time Act, 1997. : CA-00006371-004

The issue of Holidays paid or not paid was impossible to determine. No records at all were produced in evidence. The oral evidence of both parties was completely vague and non-specific. The on off nature of the work and the interplay with Social Welfare payments was a further complicating factor.

On balance I felt that there was an amount outstanding to the Complainant. In view of the complete absence of records in evidence I had to make an estimate.

Redress

I award 10 days’ pay (again from the Social Welfare forms supplied) of €1,500 to the Complainant as full and final settlement of the Holiday pay complaint. This encompasses both Public and Annual leave entitlements.

(The award is expressed as Gross Pay and the issue of the appropriate taxation is a matter for the Respondent and the Revenue Commissioners.)

Act

Complaint/Dispute Reference No.

Summary Decision /refer to Section 3 above for detailed arguments.

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

CA-00006371-001

Dismissal Unfair. Redress of €3,250 awarded

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00006371-002

Complaint well founded.

No written contracts or T & Cs.

Redress of €100 awarded

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

CA-00006371-003

Complaint well founded.

One week’s statutory notice of €535 awarded.

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

CA-00006371-004

Complaint well founded. A lump sum of € 1,500 in lieu of Holiday Pay (Public and Annual Leave) awarded.