ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008891
Parties:
| Complainant | Respondent |
Anonymised Parties | Operations Manager | Manufacturing |
Complaint(s):
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-00011688-001 | 31/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00011688-002 | 31/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011688-003 | 31/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00011688-004 | 31/05/2017 |
Date of Adjudication Hearing: 04/12/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
The respondent advised the WRC on the 5th.Dec. 2017 that he had confused the date of the hearing and apologised for same.He stated that the respondent company went into liquidation on the 30th.July 2017.In a written submission dated the 30th.June 2017, the respondent denied any breach of the Acts and strongly contested the claims made by the claimant.The liquidators are Seamas Keating and Gary Digney of PKF-FPM Accountants , Dundalk.
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [ and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The claimant was employed with the respondent as Operations Director with the respondent company from the 6th.July 2015 to the 15th.March 2017.He set out the background to the setting up of the company which sold camera systems for the print industry and explained how the company secured funding .He outlined the staff structure - he asserted that he drew up the staff contracts .A number of disagreements arose between the claimant and the CEO of the company Mr.ND and it was asserted that the CEO indicated that he was dismissing the claimant in Nov. 2016 for contradicting the CEO in public.A mediation process ensued between the claimant and the CEO and they shook hands amicably.It was submitted that following this event the CEO presented the claimant with a revised contract which was significantly inferior to the original draft with respect to continuity of service, notice , termination of contract and pension arrangements.The claimant submitted that he told the CEO he would not be signing the contract because of the unfavourable terms contained therein. On the claimant’s return to work on the 3rd.Jan. 2017 , he was informed by the CEO that the CEO had moved to Limerick where he had opened an office which would be serviced by the CEO’s partner.The claimant was off on sick leave with cardiac problems from the 20th.January to the 14th.March 2017.When the claimant returned to work he was advised by the CEO that his job was in jeopardy – the CEO stated that it was out of his hands and was a Board decision.He indicated that if the claimant could not come up with alternative solutions he would have to implement the decision of the Board to make him redundant .On the 16th.March 2016 , the CEO informed the claimant that he was making him redundant owing to the company’s precarious financial situation.The claimant set out the ensuing exchanges between the claimant and the CEO who advised the claimant that he could appeal the decision to the Board – the claimant stated that he would not be appealing a decision to the Board who had already made the decision.The claimant asked to CEO to consider his contract of employment. It was submitted that the dismissal was constructed from the disagreement that arose in November , that consequently it was unfair and that there were 2 people with less service than the claimant in the employment of the company. |
Payment of Wages Act 1991-Ref.CA-00011688-002
Summary of Complainant’s Case:
The claimant submitted the respondent was in breach of the Act for failing to pay him redundancy and for failing to pay him outstanding notice of 9 months.The claimant was relying on the inclusion in the contract drafted by himself of a provision which provided “ If the contract is ended at the request of the company or by mutual agreement before the end date or before any renewal date , other than for a compelling reason , you shall be entitled to a once off payment equivalent to one year’s salary at the rate then in force .In the event of termination of this contract you shall immediately resign your position as Operations Directo”r. The claimant further complained that the respondent made no pension contributions for him , contrary to the provisions of the disputed contract. |
Summary of Respondent’s Case:
The respondent did not attend and was not represented at the hearing. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
At the hearing , the claimant submitted 3 contracts , the first contract dated the 6th.July 2015 and signed by both parties , a second contract drafted by the claimant which was undated and unsigned and a counter contract drafted by the respondent dated the 25th.Nov. 2016 which was unsigned. . The claimant asserted that both parties signed the second contract drafted by him but he was never furnished with a copy of same.It was submitted that the terms of the contract relating to pay were honoured. On the basis of the evidence presented at the hearing , the only contract that appears to have been agreed between the parties is the contract dated the 6th.July 2015 which has been signed by both This contract did not include the provision with respect to 12 months severance pay.The claimant advised at the hearing that he was paid 3 months in lieu of notice.In light of the foregoing I cannot accept the non payment of severance pay of 12 months constitutes an illegal deduction and accordingly I do not uphold this element of the complaint.The agreed contract between the parties provided “Pension Scheme” The company will deduct on your mandate any monies you wish to be paid into a Revenue Approved Scheme.”In such circumstances I cannot deem the non payment of pension contributions by the respondent to be an illegal deduction and accordingly I do not uphold this element of the complaint. The claimant did not have the requisite service to qualify for statutory redundancy – accordingly I do not uphold this element of the complaint. |
Terms of Employment (Information)Act 1994-Ref.CA-00011688-004
Summary of Complainant’s Case:
The claimant submitted the respondent was in breach of the Act for failing to notify him in writing of a change to his terms of employment. |
Summary of Respondent’s Case:
The respondent did not attend and was not represented at the hearing. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that
At the hearing , the claimant submitted 3 contracts , the first contract dated the 6th.July 2015 and signed by both parties , a second contract drafted by the claimant which was undated and unsigned and a counter contract drafted by the respondent dated the 25th.Nov. 2016 which was unsigned. The claimant asserted that both parties signed the second contract drafted by him but he was never furnished with a copy of same.It was submitted that the terms of the contract relating to pay were honoured. On the basis of the evidence presented at the hearing , the only contract that appears to have been agreed between the parties is the contract dated the 6th.July 2015 which has been signed by both parties.On the basis of the evidence presented by the claimant with respect to the exchanges that took place between him and the CEO regarding a revised contract , I find the claimant has been unable to demonstrate that there was a breach of Section 5 of the Act and consequently I do not uphold the complaint. |
Organisation of Working Time Act 1997 -Ref.CA-00011688-003
Summary of Claimant’s Case:
The claimant submitted the respondent was in breach of the Act for failing to pay him his outstanding holiday entitlement on termination of his employment.The claimant asserted that he was owed €2,415.51 in outstanding holidays.He advised that on termination of his employment he sought payment of €5,492.45 which was based on untaken leave for 2015 , the entirety of 2016 and 3 months in 2017.The respondent paid the claimant €3076.94 in outstanding holiday pay. |
Summary of Respondent’s Case:
The respondent did not attend and was not represented at the hearing. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have reviewed the evidence presented by the claimant and noted his calculations which were backdated to the commencement of employment almost 2 years from the date of receipt of the complaint on the 31st.May 2017.The claimant was paid for 19 days outstanding annual leave.In the circumstances I am satisfied that the respondent met their obligations under the Act and accordingly I do not uphold the complaint. |
Unfair Dismissals Act 1977-Ref.CA-00011688-001
Summary of Complainant’s Case:
The claimant submitted that he was unfairly dismissed without due process and regard to his service with the respondent.He asserted that he could have relocated to develop the Limerick office but was denied an opportunity to do so.The claimant was adamant that the dismissal was related to the dispute with the CEO in relation to public criticism in Nov. 2016 and the backdrop of the dispute concerning the claimant’s contract of employment. |
Summary of Respondent’s Case:
The respondent did not attend and was not represented at the hearing. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
On the basis of the uncontested evidence of the claimant , I find that the claimant was dismissed without due process and without the adoption of a fair and transparent matrix for selection for redundancy.Accordingly I uphold the complaint and require the respondent to pay the claimant €7,500 compensation within 4 weeks of the date of this decision. |
Dated: 25 April 2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea