ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00007413

Parties:

Complainant        Anonymised Parties        Respondent

An Employee                                               A Maintenance Company  

Representatives    

Complaints:

ActComplaint 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-00009948-001 28/02/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00009948-002 28/02/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00009948-003 28/02/2017  

Date of Adjudication Hearing: 27/10/2017 Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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 had been employed by the respondent since June 2016. He worked approximately twenty-four hours per week at €12.50 per hour.

Summary of Complainant’s Case:

The complainant withdrew complaint CA-00009948-002 under the Redundancy Payments Acts at the hearing. He says he was dismissed following an incident on February 29th 2017 when his employer became aware that he had been looking for other work. However, he accepts he told the respondent on January 16th or 17th that following a period of illness he needed time off and the respondent agreed to this. A few days later the complainant requested his P45 and this was forwarded to him some days after that, approximately in the last week in January. There were continuing contacts between the parties and on February 26th it was agreed between them that he would ‘return to work’ which he did on February 29th. On that morning when they met the respondent raised with the complainant the fact that he was looking for other work and while the precise terms of the exchange were disputed they parted following it. Regarding complaint CA-00009948-001 under the Organisation of Working Time Act 1997, he says that he did not receive any paid annual leave or payment for public holidays.  

Summary of Respondent’s Case:

The narrative above is substantially accepted as correct by the respondent. He confirms that the complainant came to the business a few days after January 17th 2017 and asked the respondent’s wife, who acts as an administrator for the business, for his P45 as he needed it to make at claim at the Department of Social Protection. He also confirms that there was renewed contact between them during February and he agreed to take the complainant on again. However, the business is a very small one and he needed to know that he could rely on the complainant and, as he had heard he was looking for work, he put this to him. While the complainant denied it he then told the respondent that it was none of his business. The respondent then said if that was the case they should ‘call it a day’ and the complainant got out of the van and left. The respondent did not dispute the complaint under the Organisation of Working Time Act.  

Findings and Conclusions:

The key question here is whether the complainant was an employee at the time of the incident on February 29th when the employment relationship came to an end. From the evidence given at the hearing it is clear that the complainant initially requested time off work in January as a result of illness or injury and this was agreed. The complainant asked for his P45 at the end of January. It seems that the respondent may have taken this to be some form of resignation by the complainant. However, his application for benefit to the Department of Social Protection required production of a P45. In the absence of some other proof this request alone cannot be taken, and certainly not on these facts, as evidence that the complainant had resigned his position. Accordingly, when the complainant and respondent resumed their relationship on February 29th, the complainant was basically returning to work after a period of unpaid sick leave. In his submission, he stated that he and the respondent ‘both agreed’ he ‘would return to work’ on February 29th. I find therefore that on February 29th the complainant was still an employee and his return to work followed his period of absence on sick leave, as agreed with the respondent. Then, the dispute arose about the complainant applying for other work and his availability to the respondent for future work. I find that the respondent’s comments to the complainant represented the effective termination of his employment. There was no process of any description meeting the requirements of fair procedure and it was an unfair dismissal. There was no cause either. The complainant was unfairly dismissed. His complaint under the Organisation of Working Time Act succeeds. He worked one thousand two hundred and forty-eight hours in the leave year 2016 and two weeks in 2017 which adds another forty-eight. At €12.50 per hour this entitled him to €1,296. He is further entitled to payment for nine public holidays which is €900 (nine days by eight hours at €12.50).  

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. Section 39 of the Redundancy Payments Acts 1967 – 2012 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 – 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.   I uphold Complaint CA-00009948-001 under the Organisation of Working Time Act, 1997 and award the complainant €1,296.00 in respect of annual leave entitlements and €900.00 in respect of public holidays. Complaint CA-00009948-002 under the Redundancy Payments Act 1967 was withdrawn. Complaint CA-00009948-003 under the Unfair Dismissals Act, 1977 is upheld for the reasons set out above and I award the complainant €7,500.00.  

Dated:   24th January 2018 Workplace Relations Commission Adjudication Officer: Pat Brady

Key Words: Redundancy, Unfair Dismissal, Holidays