Complainant

Respondent

Anonymised Parties

A Mechanic

A Garage

Representatives

 Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00017214-001

01/02/2018

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

CA-00017214-003

01/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00017214-004

01/02/2018

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

CA-00017214-005

01/02/2018

The complainant worked as a mechanic from 4th September 2015 until 6th October 2017 when he claims he was unfairly dismissed, did not receive his minimum notice, never received his terms and conditions of employment and is owed 2 days pay. The respondent did not attend.

The complainant detailed that he did not receive a statement in writing with details on the terms and conditions of his employment. It was detailed that confirmation of same was evident by the fact that when he had sought documentation under data protection legislation, including a copy of any contract that might have existed, the respondent forwarded some documentation he requested, but no contract as none existed.

The Respondent did not engage with the Workplace Relations Commission in relation to the complaint. The Respondent did not attend the Hearing. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing, and this was returned and it was advised that the respondent’s business was closed. I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances.

The respondent did not attend the hearing and therefore, the only evidence I have is that of the complainant.

The complainant details that he never received terms of employment.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 states that an “employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the … terms of the employee's employment.”

Sec 7 (2) (d) of the Act orders “…the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977”

In the absence of any evidence from the respondent and having heard the impact of the respondent’s failure to provide same, I must prefer the evidence of the complainant and declare that the complaint is well founded and succeeds.

In respect of complaint this I find that the complaint succeeds and direct the Respondent pay the complainant €1,350.00 gross.

The Respondent did not engage with the Workplace Relations Commission in relation to the complaint. The Respondent did not attend the Hearing. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing, and this was returned and it was advised that the respondent’s business was closed. I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances.

The complainant detailed that he commenced employment in 2015 and he got on well with the owner Mr A working as a mechanic. On 25th September 2017 while lifting the engine of a car, he hurt his hand. It was a bad cut and very sore but he stayed working and finished early. Mr A asked him if he was going to take a case and he told him he had not thought of this.

On 3rd October 2017 a customer queried what happened to the hand and as he proceeded to answer him, the 7-year-old son of Mr A, interrupted and mocked the complainant with regards to the injury. The complainant was embarrassed and wondered why the child was saying this and if the child was repeating what he had perhaps heard Mr A saying.

The next day October 4th, Mr A’s son again made a joke about his injury and this upset the complainant. He told Mr A what happened and that it upset him. Mr A apologised for it and dismissed it and when the complainant detailed that he felt that the child was hearing these words from an adult, Mr A got very angry and told him to pack up his things and using an expletive told him to leave.

The complainant returned to the respondent’s premises on October 6th as he had thought that maybe Mr A had calmed down. He asked Mr A to reconsider his decision and advised him that he had sought advice from the Citizen Information Centre and knew he had employment rights. He detailed that the respondent told him that he “could take it wherever he liked”.

Through his representative, he sought information on 13th November 2017 under Data Protection legislation. He received some of this information from the respondent’s representative on 7th December 2017 but the respondent’s representative later came off record.

A few months later around February 2018, he heard that Mr A had closed his premises. Details were provided of efforts to mitigate the complainant’s loss and to date he has had no success securing employment and medical evidence was provided that detailed that the complainant was unfit to work owing to the injury until January 2018.

The respondent did not attend the hearing and therefore, the only evidence I have is that of the complainant.

Pursuant to Section 6 of the Unfair Dismissals Act 1997 as amended, the dismissal of an employee shall be deemed for the purposes of this Act to be an unfair dismissal unless, having regard to all the circumstances, there are substantial grounds justifying the dismissal. The burden of proof is firmly on the Respondent.

The respondent presented no evidence to suggest that the dismissal was fair. The evidence of the complainant, who appeared as a credible witness was that when he raised a grievance about what Mr A’s son was saying, the respondent failed to adequately address this grievance and indeed his reaction was explosive and he proceeded to dismiss the respondent without any grounds to justify the dismissal. When the complainant returned a few days later to give the respondent an opportunity to change his mind, he found that the respondent said the dismissal stood and told him to leave.

I find it surprising that the respondent responded so negatively when the complainant raised a legitimate concern about what Mr A’s son had been saying. While allowing some accommodation for a ‘heat of the moment’ reaction by the respondent, it is extraordinary that the respondent’s tone and demeanour remained the same when the complainant returned to see had he changed his mind.  

Cassidy v Shannon Castle Banquets and Heritage Ltd [2000] ELR 248 and Mooney v An Post 4 IR 288 set out the importance of fair procedures. The complainant was not afforded any fair procedures in the course of his dismissal. He was dismissed without any substantive grounds to justify his dismissal. He was not afforded any opportunity to appeal the decision taken to dismiss him.   There were no efforts by the respondent to engage with the complainant to resolve the situation. Indeed, it was the complainant who made an effort and was willing to give the respondent an opportunity to calm down and engage with him but he was once again treated with what appeared to be contempt by the respondent. I find therefore that the claim is well founded.

The complainant sought compensation and was deemed unfit for work from October 2017 to January 2018. Evidence was provided of efforts to mitigate his loss but thus far the complainant has been unable to secure alternative employment.

I find that the complainant was unfairly dismissed and the complaint succeeds. I order the Respondent to pay the Complainant the sum of €15,750 (equivalent of 35 weeks’ pay), less 12 weeks (€5,400) to reflect when he was medically unfit for work, and a further €9,000 (20 weeks’ pay) which reflects thefuture loss of earnings of the complainant. I have also taken into consideration that despite efforts to secure employment, the complainant has been unsuccessful to date and this may continue to be for a period of time in the future. I find, therefore, that the complaint succeeds and direct the Respondent pay the complainant €19,350 gross.

The complainant detailed that he did not receive payment in relation to working on 2nd and 3rd October 2017 and provided bank statements.

The Respondent did not engage with the Workplace Relations Commission in relation to the complaint. The Respondent did not attend the Hearing. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing, and this was returned and it was advised that the respondent’s business was closed. I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances.

The respondent did not attend the hearing and therefore, the only evidence I have is that of the complainant.

Section 1(1) of the Act defines wages as meaning “any sums payable to the employee by the employer in connection with his employment, including—

( a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,

Section 5(1) of the Act provides:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—  (a) the deduction (or payment) is required or authorised to be made by virtue   of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of   employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has   given his prior consent in writing to it.”

Section 5(6) details

( a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

( b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

In the absence of any evidence from the respondent I must prefer the evidence of the complainant and I find that withholding payment amounted to a deduction from the Complainant’s pay that was not authorised and accordingly, the payment of €180.00 gross (being 2 days payment) is properly due and I find that the complaint succeeds and direct the Respondent pay the complainant 180.00 gross.

The complainant detailed that he did not receive payment in relation to working on 2nd and 3rd October 2017 and provided bank statements as evidence.

The Respondent did not engage with the Workplace Relations Commission in relation to the complaint. The Respondent did not attend the Hearing. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing, and this was returned and it was advised that the respondent’s business was closed. I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances.

The respondent did not attend the hearing and therefore, the only evidence I have is that of the complainant.

Based on the uncontested evidence, I find that that the Respondent dismissed the Complainant with immediate effect and did so without adhering to its obligations under Section 4 of the legislation which requires

“(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

( b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks.

I find that the complaint succeeds and direct the Respondent pay the Complainant €990.00 gross.

CA-00017214-001

I find that the complaint succeeds and direct the Respondent pay the complainant €1,350.00 gross.

CA-00017214-003

I find that the complaint succeeds and direct the Respondent pay the complainant €19,350 gross.

CA-00017214-004

I find that the complaint succeeds and direct the Respondent pay the complainant 180.00 gross.

CA-00017214-005

I find that the complaint succeeds and direct the Respondent pay the Complainant €990.00 gross.

Unfair dismissal, Minimum notice, payment of wages, terms and conditions of employment, respondent did not attend