ADJUDICATION OFFICER DECISION & RECOMMENDATION

Adjudication Reference: ADJ-00007467

Parties:

Complainant                   Anonymised Parties                 Respondent

A Gym Supervisor                                                            A Hotel Leisure Centre  

Representatives None

Complaint and Dispute:

Act                     Complaint/Dispute Reference No.                       Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00010035-001 04/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00010035-002 04/03/2017  

Date of Adjudication Hearing: 30/08/2017 Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 4th March 2017, the complainant referred complaints to the Workplace Relations Commission pursuant to the Industrial Relations Act and the Payments of Wages Act. The complaints were scheduled for adjudication on the 30th August 2017.   At the time the adjudication was scheduled to commence, it became apparent that there was no appearance by or on behalf of the respondent. I verified that the respondent was on notice of the time, date and venue of the adjudication. Having been satisfied of this and waited some time to accommodate a late arrival, I proceeded with the adjudication in the absence of the respondent.   In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 13 of the Industrial Relations Acts 1969following the referral of the complaint and dispute to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.

Background:

The complainant worked for the respondent between the 13th June 2016 and the 6th February 2017. He was paid €468 gross per week. He claims that his employment was ended unfairly.

Summary of Complainant’s Case:

The complainant outlined that he commenced with the respondent as leisure centre supervisor on the 13th June 2016 and this came to an end on the 6th February 2017. There had been an incident in the centre on the previous Sunday and when the complainant attended work, he was met by the respondent owner. The owner told the complainant to “feck off” and that he could “f***ing leave” when he wanted to. The owner also referred to a colleague being let go. The complainant asked the owner “why?” and he replied that it was not working out. The owner raised people using a neighbouring gym. After this exchange, the complainant stayed on to give a class to customers and also gave a colleague a lift home. He was owed two weeks’ notice as well as outstanding commission for 2016, an amount of €107. Following his dismissal, the complainant was out of work for about nine weeks, but had only obtained part-time work. He was now an instructor as opposed to a supervisor. He calculated his total losses as €3,566.72. He exhibits a pay slip dated the 23rd February 2017 which states that he is owed €1,308 gross (€947.44 net). This amount has not been remitted to the complainant despite this pay slip being issued.  

Summary of Respondent’s Case:

The respondent did not make submissions to the adjudication and nor did it attend the hearing. It consented to the dispute pursuant to the Industrial Relations Act being dealt with.  

Findings and Conclusions:

CA-00010035-001 It is well settled that an employer is obliged to apply its own disciplinary or dismissal procedure in terminating an employee’s employment, including during a period of probation or before the employee falls within the scope of the Unfair Dismissals Act (see Irish Postmasters Union -v- A Worker AD 115). The respondent did not submit a disciplinary, performance management or a dismissal policy applicable in this case. The complainant asked for the reason he was being dismissed and no satisfactory explanation was provided. It follows that the dismissal was unfair. In assessing the circumstances of the dismissal, I recommend that the respondent pay the complainant €2,000 pursuant to the Industrial Relations Act.   CA-00010035-002 The respondent issued a pay slip dated the 23rd February 2017 to the complainant in the amount of €1,308 gross (€947.44 net). This was not paid to the complainant and this caused loss and inconvenience to the complainant. Pursuant to section 6(1)(b) of the Payments of Wages Act, as amended, I consider it reasonable in these circumstances to award twice the net amount of the unlawful deduction, i.e. a total of €1,894.88.  

Decision:

CA-00010035-001 Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.   Pursuant to the Industrial Relations Act, I recommend that the respondent pay the amount of €2,000 as redress for the unfair dismissal.   CA-00010035-002 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.   Pursuant to the Payments of Wages Act, as amended, the respondent shall pay to the complainant redress of €1,894.88.  

Dated:   17th January 2018  Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words: Industrial Relations Act Irish Postmasters Union -v- A Worker AD 115 Section 6(1)(b) of the Payments of Wages Act