ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009236
Parties:
| Complainant | Respondent |
Anonymised Parties | Installator | Cable Installation Company |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011616-002 | 29/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012 | CA-00011616-003 | 29/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011616-004 | 29/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011616-005 | 29/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011616-006 | 29/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00011616-007 | 29/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00011616-008 | 29/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00011616-009 | 29/05/2017 |
Date of Adjudication Hearing: 27/11/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 Section 13 of the Industrial Relations Acts 1969 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 as an Installator from 6th June 2016 to 13th May 2017. He was paid €650 per week. He has claimed that he is owed holidays and Public Holidays and he was wrongfully dismissed. |
1)Organisation of Working Time Act CA 11616-002/004/005/0066
Summary of Complainant’s Case:
a) Holiday entitlements CA 11616-002 |
He stated that he did not receive all his entitlements. The business was closed for one week only at Christmas not two weeks as alleged by the Respondent. He has sought 5 days’ holidays.
- b) Public Holiday entitlements: CA 11616-004
He stated that he did not receive his Public Holiday entitlements. He was only paid for hours worked.
- c) Holiday entitlements at cessation of employment: CA 11616-005
He stated that he did not get his entitlement at cessation.
- d) Public Holidays at cessation of employment: CA 11616-006
He did not get his entitlements at cessation of employment.
Summary of Respondent’s Case:
The Respondent stated that the business was closed for two weeks at Christmas and he was paid all his holiday entitlements. He had been paid for 88 hours holidays amounting to 11 days holidays, payslips were produced to support their position. He produced a document from the Yard which stated “Please be advised that the XX Offices will be closed on 23/12/2016 to 8/1/17” this dated 5/12/2016. Therefore he is not owed any holidays.
b) Public Holiday entitlements: CA 11616-004 They stated that he was paid for 40 hours every week and did not work the Public Holidays. This claim is rejected.
c) Holiday entitlements at cessation of employment: CA 11616-005 As above a)
d) Public Holidays at cessation of employment: CA 11616-006 As above b) |
Findings and Conclusions:
I note from the pay slips that the Complainant was paid for 88 hours in holiday pay. This amounts to 11 days’ holidays.
I note that the Yard was closed for two weeks, from 23rd December to 8th January 2017, this amounts to 10 days’ holidays.
Therefore, I find that he has received in excess of his entitlements.
b) Public Holiday entitlements: CA 11616-004 I note the conflict of evidence in this matter.
The Respondent was requested to produce records to support their position that he was paid 40 hours per week and did not work Public Holidays. They failed to produce these records.
In the absence of such records I am obliged to accept the Complainant’s evidence that no compensation was received for the Public Holidays.
This complaint was received on 29th May 2017. Therefore, the period that may be investigated is 30th November 2016 to 13th May 2017, the date of termination. The following Public Holidays occurred in this period Dec 25th, 26th, Jan 1st, March 17th Easter Mon, and May Monday amounting to 6 Public Holidays.
I note the Respondent’s position that he didn’t work on Public Holidays therefore he was entitled to one fifth of a normal week’s pay for each Public Holiday. This amounts to €150 per day X 6 days = €780.00
c) Holiday entitlements at cessation of employment: CA 11616-005 I find that he has no holiday entitlement at cessation of employment.
d) Public Holidays at cessation of employment: CA 11616-006 He did not get his entitlements at cessation of employment.
I find that he is owed €780.00 in respect of Public Holiday entitlements. |
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.
I have decided that the Respondent has breached Sec 21 of this Act.
I order the Respondent to pay the Complainant €780.00 within six weeks of the date below.
Holiday and Public Holiday entitlement |
2)S.I. 507 Mobile Staff in Civil Aviation CA 11616-003
Holiday entitlements were claimed under this legislation as well as under the Organisation of Working Time Act.
The Complainant accepted that this is a duplicate complaint and agreed to have the complaint addressed under the Organisation of Working Time Act.
3)Industrial Relations Act CA 11616-009Summary of Worker’s PositionThe Worker stated that a work colleague died suddenly and he was given one week off to attend the funeral. While he was away at the funeral a colleague told him that he was not to return to work as he was fired because he was late for work. He tried contacting the Respondent but couldn’t get in touch with him for a considerable period of time. He was wrongfully dismissed and he has sought compensation. |
Summary of Employer’s Positon:
The Employer stated that he was unsure if the Worker had worked 15th and 16th May 2017. He stated that a colleague died and the Worker was given one day to attend the funeral on 17th May. He never returned to work. He left the employment. He later contacted him about getting a letter for the Dept. of Social Welfare in order to get the dole. There was no dismissal, he left the job and didn’t return. This claim is rejected. |
Findings and Conclusions:
I note the conflict of evidence in this complaint.
I note the Worker asserts that he got a week off to attend the funeral, yet the Employer stated that he was given one day only.
I find it most unusual that a non-related work colleague would get 5 days off work to attend a local funeral.
On the balance of probability, I find that the Worker only received one day off to attend the funeral.
I note that the Worker asserts that he was told by a colleague that he was not to return to work as he had been fired.
I note the Employer denied firing him.
I find the Employer’s evidence more believable. I find it most unusual that an employee would accept being told by a colleague that he had been fired.
On the balance of probability, I find that he was not fired by the Employer.
I find that he did not return to work for whatever reason.
I note the conflict of evidence regarding phone calls between the Worker and the Employer.
I find it unusual that the Employer did not contact the Worker when he failed to return to work.
I find the circumstances as presented to me at the hearing were peculiar.
I conclude that the Worker did not return to work possibly because he was told by a colleague not to do so.
I find it extraordinary that a worker would not try to verify this with the Employer. If he couldn’t get in contact by ‘phone he could have called to the work site but he didn’t.
I find that the Employer made no attempt to contact his employee, who had allegedly gone absent.
I find that the Worker has not established a case of wrongful dismissal.
I find that this complaint fails.
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute
For the above stated reasons, I recommend that this complaint fails.
Dated: 07/03/18
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Wrongful dismissal |