ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00008199

Parties:

Complaints:  

Date of Adjudication Hearing: 24th October 2017 and 18th April 2018

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Sections 41 and 80 of the Workplace Relations Act 2015, Section 7 of the Terms of Employment (Information) Act 1994, Section 11 of the Minimum Notice and Terms of Employment Act 1973, Section 27 of the Organisation of Working Time Act 1997, Section 8 of the Unfair Dismissals Act 1977 and Section 39 of the Redundancy Payments Act 1967 and 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 was employed by the Respondent from 1st July 2003 to 18th March 2017 as a mechanic, his weekly working hours were 24 hours and his weekly rate of pay was €240.00c nett.

The Complainant made the following complaints under the 4 Acts as follows:

1. Terms of Employment (Information) Act 1994:   The Complainant was submitting that the Respondent had failed to provide him with a written statement of the particulars of his terms and conditions of employment in accordance with the provisions of the 1994 Act.
2. Minimum Notice and Terms of Employment Act 1973: The Complainant was submitting that his employment had been terminated by the Respondent without any notice or pay-in-lieu of notice in accordance with the provisions of the 1973 Act.
3. Organisation of Working Time Act 1997:   The Complainant was submitting that the Respondent had failed to afford him his rights and entitlements in relation to annual leave and public holidays in accordance with the provisions of the 1997 Act.
4. The Unfair Dismissals Act 1977:   The Complainant was submitting that he had been unfairly dismissed by the Respondent in breach of the provisions of the 1977 Act. 
5. The Redundancy Payments Act 1967: The Complainant was submitting the Respondent had failed to afford him statutory redundancy payments when his employment was terminated by reason of redundancy.     (The Complainant accepted that in the event that his complaint under the Unfair Dismissals Act succeeded this complaint would fall or vice versa).

 Preliminary Issue:                                                                                                                                         

The Complainant sought an extension of the normal 6 month period for the presentation of complaints in relation to the complaints under the Organisation of Working Time Act.   The complaints were presented to the WRC on 24th April 2017, in accordance with the provisions of Section 41(6) of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act 1997 an Adjudication Officer shall not entertain a complaint under the 1997 Act if it is presented to the WRC more than 6 months after the date of the contravention it relates to.   However, under the same sections of both Acts the Adjudication Officer may entertain a complaint for a further 6 month period if the Adjudication Officer is satisfied that the failure to present the complaint at the earlier stage was due to reasonable cause.

The Complainant Representative said that the Complainant had certain literacy problems and in addition he was not apprised of his right to take a case and how to take a case under the 1997 Act.   The Complainant submitted that this constituted reasonable cause that justified a six month extension in relation to the complainant under the Organisation of Working Time Act 1997.

 Summary of Complainant’s Case:

The Complainant made the following complaints under the 4 Acts:

Terms of Employment (Information) Act 1994                                                                                                  

The Complainant said that the Respondent had failed to provide him with a written statement of the particulars of his terms and conditions of employment in accordance with the provisions of Section 3 of the 1994 Act and he sought redress in the form of compensation as provided for in Section 7 of the 1994 Act.

Minimum Notice and Terms of Employment Act 1973                                                                                  

The Complainant said that the Respondent terminated his employment without notice or pay-in-lieu of notice in accordance with the provisions of the 1973 Act and he sought redress in accordance with the provisions of Section 12 of the 1973 Act.

Organisation of Working Time Act 1997                                                                                                            

The Complainant said that the Respondent had not afforded him his rights and entitlements in relation to annual leave and public holidays in accordance with the provisions of the 1997 Act.  

The Complainant said that he did not receive any paid annual leave in accordance with the provisions of Sections 19, 20 and 23 of the 1997 Act.

The Complainant said that he did not receive any public holiday entitlements in accordance with the provisions of Sections 21, 22 and 23 of the 1997 Act.

The Complainant sought redress in the form of compensation as provided for in Section 27 of the 1997 Act.

Unfair Dismissals Act 1977                                                                                                                                    

The Complainant said that he was dismissed by the Respondent in clear and flagrant breach of his rights and entitlements under the 1977 Act.  

The Complainant said he was employed by the Respondent from 1st July 2003 as a mechanic.   He said that on 18th March 2017, he received a telephone call from the Proprietor, who told him he would have to let him go as they had no work for him. The Complainant said he asked about another named employee, who had started work for the Respondent about a 1.5 years previously, i.e. more than 11 years after the Complainant and the Proprietor informed that he was keeping on that employee.   The Complainant said to the Proprietor that that this was unfair selection for redundancy.   The Complainant said that he took advice and then went back to see the Proprietor about 2 weeks later, who informed that he still had no work for the Complainant.   The Complainant said that he asked the Proprietor for his redundancy payment (which he did not receive).

The Complainant said that later he asked for his P45, but the Respondent refused to give it to him.   The Proprietor told the Complainant that on the advice of his Accountant he was offering the Complainant his job back. The Complainant said that he did not accept the offer as he did not believe that it was a serious offer and that the Respondent was just trying to cover the fact that his dismissal was unfair and that he was not offered his wages for the period spent out of work. He said that he was not given his 6 weeks minimum notice or pay-in-lieu of notice.

The Complainant gave direct evidence, that supported the submissions made on his Application Form and made by his Representative.

The Complainant said that on Saturday 18th March 2017, he received a telephone call from the Proprietor, who told him that he might have to let him go from his job as there was a scarcity of work.   The Complainant said that he asked what about another named employee who had considerably less service and the Proprietor said he was keeping on that employee.   The Complainant said he believed that employee was being kept as he was paid less than the Complainant.   The Complainant said the Proprietor told him to leave it for a week or two.

The Complainant said that 2 weeks later he went to meet with the Proprietor, who again told him that he had no work for him.   The Complainant said that he said to the Proprietor in that case have my redundancy pay ready.   He said the Respondent replied, if that is the road you want to go down.

The Complainant said that the following Saturday he met with the Proprietor.

The Complainant said that the Proprietor then said that his Accountant had told him that it may be redundancy.

The Complainant asked for his P45 to claim welfare benefits and the Proprietor said he would get it from the Accountant.

The Complainant said that he subsequently got a telephone call from the Proprietor, in which he was told that he would not be getting his P45 and the Proprietor said he was advised that he may be open to a claim for unfair dismissal or redundancy payment and the only way out was to offer the Complainant his job back.   The Complainant said that he was not prepared to return to the employment in such circumstances and that it was not fair to expect him to.

Following the Respondent presenting his case the Complainant denied that he was regularly missing from work.   He said that he may occasionally been missing, but it was equally true that he often stayed on late after finishing time without any extra pay.   He denied that he had been repeatedly informed by the Proprietor about missing time from work and/or that his job was at risk for that reason.

The Complainant said that he was never the subject of any disciplinary action of any sort during his employment with the Respondent.   He said that he was never given a verbal warning, a written warning, a final written warning, a suspension or any form of discipline by the Respondent at any stage.

It was submitted that there was a total absence of fair procedures that accorded with natural justice and that protected his rights.   In that respect he submitted:

• The details of any allegations or complaints were not put to him, prior to any decision, either in writing or otherwise. 
• He was not afforded the opportunity to respond fully to any allegations or complaints.
• He was not afforded the right to be represented during the process.
• There was no fair or impartial determination of the issues concerned

The Complainant submitted there was a complete absence of any fair procedures that would protect his rights and for that reason alone his dismissal was unfair.

The Complainant gave evidence of mitigation.   The Complainant said that he did not seek alternative work as he was running his own business from which he said that he was receiving an average of €140.00c per week.

The Complainant sought a favourable decision.

Redundancy Payments Act 1967                                                                                                                          

The Complainant said that this complaint was submitted as an alternative to the one above under the Unfair Dismissals Act 1977 in the event that complaint failed under the 1977 Act then a claim or complaint for redundancy would be appropriate.

Summary of Respondent’s Case:

The Respondent submitted the following in relation to the complaints under the 4 Acts:

Terms of Employment (Information) Act 1994                                                                                                

The Respondent acknowledged that they had not provided the Complainant with a written statement of the particulars of his terms and conditions of employment in accordance with the provisions of the 1994 Act and that accordingly they were in breach of the Complainant’s rights and entitlements under the Act.   The Complainant said that this was due to inadvertence and lack of knowledge by them.

Minimum Notice and Terms of Employment Act 1973                                                                                  

The Respondent confirmed that they had not provided the Complainant with his minimum notice entitlements or pay-in-lieu of it in accordance with the provisions of the 1973 Act and that accordingly they did not comply with the requirements of the 1973 Act.

Organisation of Working Time Act 1997                                                                                                           

In discussion at the Hearing the Respondent accepted that the Complainant had not been afforded his entitlements under the 1997 Act in relation to annual leave and public holidays.

In relation to annual leave the Respondent said that when the Complainant took one weeks holidays at Christmas and in August he was paid €100.00c. The Respondent said that they accepted that this was not in accordance with the requirement of the 1997 Act.

Unfair Dismissals Act 1977                                                                                                                                   

The Respondent said the Complainant was dismissed by them for good and valid reasons.

The Respondent said that the Complainant was dismissed because they could not depend on him to attend work at normal times and to work normal hours, despite he being repeatedly spoken to about his absences and repeatedly warned that this could not continue and that the consequences if it did would be loss of his job.

The Proprietor said that that the Complainant was a super mechanic, a very good employee, who worked faster than the other employees and his productivity was very good, but the difficulty with him was getting him to work full days.   He said the Complainant regularly did not work a full day, starting late, taking extended lunch breaks and he also missed time, full days or weeks for various reasons such as the lambing season and other reasons.   The Proprietor said that he spoke many times, hundreds of times over a very lengthy period (years) and told and warned him that he could not continue to employ him if he did not work his normal hours.   The Respondent said for example every Wednesday he told the Complainant to come in on time and stay the full working day.

The Proprietor said that he gave the Complainant every chance to improve his timekeeping/absence but it did not happen.

The Respondent said that eventually on 18th March 2017, when the Complainant did not turn in for work, he rang the Complainant to see if he was coming in to work.   He said that he told the Complainant that this can’t keep going on (missing time) I can’t keep you working these hours (he acknowledged that he was in effect dismissing the Complainant because of his attendance and timekeeping record).

The Proprietor said the Complainant did not come into work for a further two weeks, at which stage the Complainant asked him had anything changed.   The Proprietor said that he offered the Complainant his job back provided he would give a commitment to, and come in to work for the full scheduled day, the same as everyone else.   The Respondent said the Complainant did not take up the offer.   The Respondent said that the same offer was open to him even now.

The Respondent said they had no choice but to terminate the Complainant’s employment in view of his failure to maintain a proper or reasonable attendance and timekeeping record and that no employer could be expected to keep an employee with such a timekeeping and attendance record.

In response to questions the Respondent confirmed the following:

• The Complainant was replaced in his job. 
• The Respondent did not have any Disciplinary or Grievance Procedures.
• While they insisted they had given the Complainant numerous verbal warnings, the Respondent had no records of these, nor could they give dates when the verbal warnings were allegedly given.
• No written warnings were given by them to the Complainant.
• The allegations or complaints were never set out in writing to the Complainant, nor was the Complainant ever informed in writing of the possible consequences of his alleged failures.

Findings, Conclusions and Decisions:

Sections 41 and 80 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.

Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Section 11 of the of the Minimum Notice and Terms of Employment Act 1973 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Section 27 of the Organisation of Working Time Act requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act

Section 8 of the Unfair Dismissals Acts 1977 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.

Section 39 of the Redundancy Payments Acts 1967 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

Firstly I note that the Hearing of 24th October 2017 was adjourned at the request of both parties to facilitate the parties reaching a compromise agreement to settle the matter.   However the WRC were subsequently informed that a resumed hearing was required and it was held on 18th April 2018.   At the resumed hearing I was informed that €5,500 of the agreed settlement had been paid to the Complainant and it was agreed that I would have to take this into account in any redress awarded and I will be so doing.

Preliminary Issue:                                                                                                      

I have carefully considered the submissions made by the Complainant in relation to the question of the extension of the normal 6 month period for the consideration of complaints under the Organisation of Working Time Act 1997.  

I note that the Labour Court considered in some considerable detail the question of what constitutes reasonable cause that justified granting an extension of the normal 6-month period for the presentation of complaints in the case of Tom Carroll -v- Cementation Skanska Limited and the Labour Court set the following test in considering if an extension of time should be granted:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explains the delay and afford an excuse for the delay.   The explanation must be reasonable, it must make sense, be agreeable to reason and not be irrational or absurd.   In the context in which the expression reasonable cause appears in the statue it suggests an objective standard, but it must be applied to the facts and the circumstances known to the claimant at the material time.   The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.   Hence there must be a casual link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account.   A short delay may require only require a slight explanation whereas a long delay may require more cogent reasons.   Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.   Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

I note that the Complainant’s case for an extension of time was that he had certain literacy problems and that he was not apprised of his right to take a case and how to take it under the 1997 Act.   I note that he was subsequently able to take advice and submit his complainant under the 1997 Act and I was informed of no reason why he could not have taken this advice and fill in the form earlier.

I am not satisfied that the Complainant has met this burden set by the Labour Court quoted above and accordingly I will not be granting an extension in the instant case.   Accordingly, the relevant period under consideration for the purposes of the complaints under the Organisation of Working Time Act 1997 is from 1st April 2016 (the beginning of the annual leave year under the 1997 Act) to 18th March 2017 (the date the employment ended) for the annual leave complaints and from 24th October 2016 to 18th March 2017 for the public holidays complaints.

Substantitive Issues:                                                                                                      

I have carefully considered the evidence and the submissions made and I have concluded as follows in relation to the complaints under the 4 Acts.

Terms of Employment (Information) Act 1994:   CA-00010932-003:                                                          

The Respondent acknowledged that they had not provided the Complainant with a written statement of the particulars of his terms and conditions of employment in accordance with the requirement of Section 3 of the 1994 Act and that accordingly they were in breach of the Complainant’s rights and entitlements under the 1994 Act.

I find and declare that the complaint under Section 7 of the 1994 Act in relation to Section 3 of the 1994 in relation to written statements of terms of employment is well founded and it is upheld.

I have upheld the complaint under Section 7 of the Terms of Employment (Information) Act 1994 and in accordance with the same section of the 1994 Act I require the Respondent to pay the Complainant compensation in the sum of €600.00c.

Minimum Notice and Terms of Employment Act 1973:   CA-00010932-003:                                          

It is not in dispute that the Complainant was dismissed by the Respondent without any notice or pay-in-lieu of notice, accordingly I find and declare that the complaint under Section 11 of the Minimum Notice and Terms of Employment Act is well founded and it is upheld.

I note that the Complainant had more than 13 years consecutive unbroken service with the Respondent at the time of the termination of his employment by the Respondent and thus in accordance with the provisions of Section 4 of the 1973 Act was entitled to 6 weeks notice.

I have upheld the complaint under Section 11 of the Minimum Notice and Terms of Employment Act 1973 and in accordance with the provisions of Section 12 of that Act I now require the Respondent to pay the Complainant compensation in the €1,440.00c which is 6 weeks wages (240 x 6).

Annual Leave: Organisation of Working Time Act 1997:   CA-00010932-006:                                       

The Respondent conceded and acknowledged that the Complainant had not received his proper and appropriate annual leave entitlements in the relevant period.  

The Respondent said that the Complainant had received 2 weeks annual leave in the relevant period and was paid €100.00c in respect of each week, i.e. a total of €200.00c.   However in the relevant period the Complainant was entitled to 4 weeks annual and to be paid €960.00c (240 x 4) in respect of such holidays leaving him short €760.00c.   However I note that in accordance with the Van Colson judgement of the ECJ I must not simply award the Complainant compensation for the financial loss suffered but must also but must award a penalty that is effective, proportional and dissuasive of such breaches and I am taking that into account in the redress awarded.

I find and declare that in accordance with the provisions of Section 27 of the Organisation of Working Time Act 1997 that the complaint in relation to annual leave entitlements in accordance with the provisions of sections 19, 20 and 23 of the 1997 Act are well founded and they are upheld by me and I require the Respondent to pay the Complainant compensation in the sum of €1,600.00c.

Public Holidays: Organisation of Working Time Act 1997:   CA-000010932-007:                                    

The Respondent confirmed at the Hearing that they had not afforded the Complainant any entitlements in relation to public holidays and they accepted that accordingly they were in breach of the Complainant’s entitlements in relation to public holidays under the 1997 Act.

I find and declare that the complaint under Section 27 of the Organisation of Working Time Act 1997 in relation to public holiday entitlements in accordance with the provisions of sections 21, 22 and 23 of the 1997 Act are well founded and they are upheld by me.   I note that there were 5 public holidays in the relevant period, i.e. last Monday in October, Christmas Day, St. Stephen’s Day, New Year’s Day and St. Patrick’s Day and I further note that the Complainant, in accordance with the provisions of the 1997 Act is entitled to 1/5th of a week’s pay in relation to each day making a total of one week’s pay in the sum of €240.00c due to him in that respect.   However I am again taking into account the Van Colson judgement in the compensation awarded below.

I find and declare that in accordance with the provisions of Section 27 of the Organisation of Working Time Act 1997 that the complaint in relation to public holidays in accordance with the provisions of sections 21, 22 and 23 of the 1997 Act are well founded and they are upheld by me and I require the Respondent to pay the Complainant compensation in the sum of €500.00c.

Unfair Dismissals Act 1977:   CA-00010932-005:                                                                                        

I have carefully considered the evidence and submissions made by the parties and I have concluded as follows in relation to the complaint under the Unfair Dismissals Act 1977.

The Respondent submitted that the Complainant was dismissed by them for good and valid reasons as they could not depend on him to attend at work at the appointed time and the Respondent said that they had given innumerable warnings over very lengthy period to the Complainant in that that respect to no avail as his timekeeping and attendance did not improve at all and they said that no employer could be expected to keep an employee in employment in such circumstances.

However the following facts were established at the Hearing and are not in dispute:

1. There was no Grievance or Disciplinary Procedure in place in the employment.
2. While the Respondent insisted that they had given the Complainant numerous verbal warning and the Complainant denied ever been given any verbal warnings, there was no record of any such warnings nor was I or the Complainant provided with any dates for such alleged warnings.
3. No written warnings were given by the Respondent to the Complainant
4. The allegations or complaints were never set out in writing to the Complainant, nor was he ever informed in writing of the possible consequences of his alleged failures.
5. The Complainant was never informed of a right to be represented during any procedure.
6. There was no internal appeal mechanism available to the Complainant to appeal against the dismissal decision.
7. No alternative, such as a final written warning or suspension, short of dismissal was ever considered by the Respondent.

Any one of the above failures on the part of the Respondent would render the dismissal of the Complainant unfair and all of them together most certainly do render it unfair.

It is clear to me that there was no investigation of the allegations against the Complainant before the decision to dismiss was taken.   Nor was there any proper disciplinary hearing at which he could defend himself or make any points in mitigation.

These are not trivial or minor breaches of fair procedures or natural justice but rather are major ones that go to the heart of fair procedure and natural justice.   The breaches of fair procedure in this case are overwhelming and accordingly I must find and declare that the Complainant was unfairly dismissed, I declare that the complaint under Section 8 of the Unfair Dismissals Act 1977 is well founded and it is upheld.

I have carefully considered the appropriate redress in the instant case and I have taken all factors into account including the views of the parties as expressed at the Hearing and I have concluded that there is an absence of the minimum level of trust necessary to sustain an employer/employee relationship in the instant case and that accordingly the only appropriate redress is compensation.

In considering the level of compensation that is appropriate in the instant case I have taken all factors into account including the income that the Complainant is securing in relation to his self-employment.   I would normally have awarded the Complainant €7,400.00c however I am taking into account, as agreed with the parties, the €5,500.00c already paid by the Respondent to the Complainant in relation to his dismissal, and accordingly the compensation figure under the Unfair Dismissal Acts is €1,9000.00c and I require the Respondent to pay him that amount.

Redundancy Payments Act 1967: CA-00010932-001:                                                                                    

I note that the Complainant was replaced in his job following his dismissal, accordingly what occurred could not have been a redundancy as defined under the Redundancy Payments Act.  

I further note that the Complainant submitted that the case under the Redundancy Payments Acts was taken as an alternative to the claim/complaint under the Unfair Dismissals Act and would fall if (as has occurred) the complaint under the Unfair Dismissals Act succeeded, as redress cannot be awarded twice for the same act (of dismissal).

I find and declare that the complaint under Section 39 of the Redundancy Payments Act 1967 is not well founded; it is rejected and is not upheld by me.

I note that the total awards made by me to the Complainant for breach of his rights under the Terms of Employment (information) Act 1994, the Minimum Notice and Terms of Employment Act 1973, the Organisation of Working Time Act 1997 and the Unfair Dismissals Act 1977 is €6,000.00c and when the sum of €5,500.00c already paid to the Complainant for these breaches is added to this it means he will receive the total sum of €11,500.00c these breaches.

Dated:14th August, 2018

Workplace Relations Commission Adjudication Officer: Seán Reilly

Key Words: Written Statement of Terms and Conditions of Employment, Minimum Notice, Annual Leave, Public Holidays, Unfair Dismissal and Redundancy Payments