ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012458
Parties:
| Complainant | Respondent |
Anonymised Parties | {An Employee } | {A Building Company} |
Representatives | Diarmuid Murphy BL Maguire McClafferty Solicitors | Ian Boyle Harper BL Hanahoe and Hanahoe Solicitors |
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-00016350-001 | 15/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016350-002 | 15/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016350-003 | 15/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016350-004 | 15/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016350-005 | 15/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00016350-006 | 15/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016350-007 | 15/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016350-008 | 15/12/2017 |
Date of Adjudication Hearing: 28/06/2018
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced employment with the Respondent on 14th November 2016 and his employment terminated on 3rd November 2017. |
Summary of Complainant’s Case:
CA-00016350-001 The Complainant was dismissed following an exchange with his Manager, without any reason. |
Summary of Respondent’s Case:
The Respondent says that the Complainant does not have 1 year’s continuous service with the Respondent and is unable to pursue this complaint. |
Findings and Conclusions:
The Complainant withdrew his complaint of unfair dismissal at the hearing. He also confirmed that he withdraws CA-00017576 entirely which was lodged by another party on his behalf. |
Decision:
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.
The Complaint was withdrawn at the hearing. |
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced employment with the Respondent on 14th November 2016 and his employment terminated on 3rd November 2017. |
Summary of Complainant’s Case:
CA-00016350-002 The Complainant claims that he did not receive a written statement of his terms of employment in accordance with the Act.
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Summary of Respondent’s Case:
The Respondent is a family run construction company which was run by a member of the family who is recently deceased. At the time the Complainant was employed she was very ill and was receiving treatment, and accepts that the written terms were not given. The company is established since 1980. |
Findings and Conclusions:
The Respondent accepts that it breached the Act, but there were mitigating circumstances. This is a continuing obligation. I find the complaint is well founded and direct payment of 2 weeks wages to the Complainant, total 960 euro compensation by the Respondent. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find the complaint is well founded and direct payment of 2 weeks wages to the Complainant, total 960 euro compensation by the Respondent. |
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed from 14th November 2016 to 3 November 2017. He was paid 12 euro per hour. |
Summary of Complainant’s Case:
CA-00016350-003 & CA-00016350-004 The Complainant claims that he was required to work between 51 and 55 hours weekly averaged on a six month basis which is a breach of S 15 of the Organisation of Working Time 1997. |
Summary of Respondent’s Case:
The Respondent says there is no breach of the Act when the hours are averaged over 4 months as permitted under S15 of the Act, the average hours are 48.7 hours per week. |
Findings and Conclusions:
I have heard the evidence of the parties and submissions made. S15(1) of the Act provides that an employer must not permit an employee to work, in a period of 7 days more than an average of 48 hours. The Respondent accepts a slight breach of the Act. I find the complaint is well founded but the breach is minor and falls within the De Minimus rule, so no award is made. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find the complaint is well founded but the breach is minor and falls within the De Minimus rule, so no award is made. |
Background:
The Complainant was employed from 14th November 2016 to 3 November 2017. He was paid 12 euro per hour. |
Summary of Complainant’s Case:
CA-00016350-005 The Complainant claims that he did not receive 15 days holiday leave. He was paid for 5 days holidays. |
Summary of Respondent’s Case:
The Respondent does not accept the complaint and believes the Complainant was paid. There are no records available in the circumstances. The onus is upon an employer to produce records to verify compliance with the Act pursuant to S25 of the Organisation of Working Time Act 1997. |
Findings and Conclusions:
I have heard the evidence of the parties and submissions made. The complaint is well founded. The Complainant is entitled to 15 days holidays total 1,440 euro and I direct payment of this by the Respondent.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded. The Complainant is entitled to 15 days holidays total 1,440 euro and I direct payment of this by the Respondent.
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Background:
The Complainant was employed from 14th November 2016 to 3 November 2017. He was paid 12 euro per hour. |
Summary of Complainant’s Case:
CA-00016350-006 The Complainant claims that he did not receive his 1 week’s payment in lieu of notice on termination of employment. It is disputed that the Complainant received his notice pay. He was on holidays for 3 weeks and asked to return to work after 1 week which he did. He then resumed his holidays. The Complainant lodged a complaint to the company when his Supervisor called to the house demanding he return to work during the 2nd week of his holidays. The Supervisor was very aggressive and caused a scene. The following day the Complainant met the Supervisor who told him he was fired. The former CEO’s husband was aware of his complaint. The CEO then informed him he was not allowed have 3 weeks holidays.
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Summary of Respondent’s Case:
The Respondent does not accept the complaint and says notice was given to the Complainant on 30 October 2017. It relies on S 8 of the Minimum Notice and Terms of Employment Act 1973, as amended which provides: “Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party”. The Respondent says the Complainant said he had to get his car fixed but would go to the site after. The Complainant did not show up for work. He was living in a property near to work and would not have required a car to travel to work. The Supervisor called to see the Complainant and he was verbally and physically abusive to him, hitting his face with the door. This amounted to gross misconduct and was not the only occasion. After a brief investigation the Complainant was informed that he was being dismissed for gross misconduct and was given his notice. The Complainant worked his notice and finished on 3 November 2017.
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Findings and Conclusions:
I have heard the evidence of the parties and submissions made. The Complainant has provided evidence by way of email and text message of the surrounding time-line. There was no appearance by the Supervisor at the hearing. I accept the Complainant’s evidence that he was informed of his dismissal on 6th November 2017 and he is owed 1 week’s payment in lieu of notice. The complaint is well founded and I direct payment of one week’s notice pay due of 480 euro by the Respondent to the Complainant. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded and I direct payment of one week’s notice pay due of 480 euro by the Respondent to the Complainant |
Key Words:
Minimum notice, dispute on whether paid or not, grounds for dismissal |
Background:
The Complainant was employed from 14th November 2016 to 3 November 2017. He was paid 12 euro per hour. |
Summary of Complainant’s Case:
CA-00016350-007 The Complainant claims that he did not receive his public holiday entitlements in the 6 months prior to dismissal. |
Summary of Respondent’s Case:
The Respondent does not accept the complaint but cannot provide evidence on this issue due to the circumstances. |
Findings and Conclusions:
I have heard the evidence of the parties and submissions made. During the 6 months prior to the lodgement of the complaint on 15th December 2017, there are 2 days public holidays. No evidence has been provided of payment of these days by the Respondent and accordingly, I find the complaint is well founded. I direct payment of 2 day’s pay of 192.00 euro by the Respondent to the Complainant.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find the complaint is well founded. I direct payment of 2 day’s pay of 192.00 euro by the Respondent to the Complainant.
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Background:
The Complainant was employed from 14th November 2016 to 3 November 2017. He was paid 12 euro per hour. |
Summary of Complainant’s Case:
CA-00016350-008 The Complainant claims that he is required to work more than the maximum permitted number of hours weekly.
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Summary of Respondent’s Case:
The Respondent says there is no breach of the Act when the hours are averaged over 4 months as permitted under S15 of the Act, the average hours are 48.7 hours per week. |
Findings and Conclusions:
This complaint is a duplicate and has already been dealt with in CA-00016350-003. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
This complaint is a duplicate and has already been dealt with in CA-00016350-003. The complaint is not well founded. |
Dated: 12th December 2018
Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll |