Complainant

Respondent

Anonymised Parties

An Employee

A Logistics Company

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-00015644-001

7/Nov/2017

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

CA-00015644-003

7/Nov/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015644-004

7/Nov/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015644-005

7/Nov/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00015644-006

7/Nov/2017

The Complainant was employed as a van driver by the Respondent on 15 February 2015. The Complainant had previously worked for three years with a company, which was liquidated in early 2015. It appears the Respondent took over the business of the liquidated company and the Complainant came into the Respondent’s employment as a result.

CA-00015644-001 (Unfair Dismissal Act, 1977)

The Complainant returned from annual leave in July 2017 and sent a text to the Respondent seeking details as to when he would be returning to work. The Complainant stated that he received a text from the Respondent requesting details as to when he was back from leave. The Complainant stated that he was informed there was no work on the Monday/Tuesday of the following week. However, he was requested to attend at the office on the Wednesday.

When the Complainant attended the office on the following Wednesday, he was met by the Respondent, in the person of the Operations Director (formerly owner/director of the liquidated company) and the Respondent’s Accountant. The Complainant was informed that his employment was being terminated as part of cost-cutting measures being implemented. The Complainant was provided with a letter to this effect.

The Complainant's representative stated that he has not worked since and has been in poor health as a result of being made unemployed.

CA-00015644-003 (Terms of Employment (Information) Act, 1994

The Complainant contends that he was never furnished with the terms and conditions of his employment.

CA-00015644-004 (Organisation of Working Time Act, 1997)

The Complainant contends that he is due 49.5 days in respect of in relation to Bank/Public holidays which he never received during of his employment, which he contends stretches back to his commencement with the liquidated company in February 2012.

CA-00015644-005 (Organisation of Working Time Act, 1997)

The Complainant claims that he was not properly remunerated for his annual leave.

CA-00015644-006 (Redundancy Payments Act, 1967)

The Complainant contends that he is entitled to redundancy payment on the basis that he believed he was unfairly dismissed by the Respondent, in an effort to avoid payment of redundancy.

The Respondent did not attend the Hearing. However, the Complainant's representative presented, in evidence, correspondence dated 5 September 2017, which had been issued by a representative of the Respondent. This represented the only evidence available setting out the Respondent’s position in relation to the situation.

In this correspondence, it was stated that the Complainant may have been employed by the liquidated company prior to February 2015. The correspondence further stated that the Complainant was employed by the Respondent on 15 February 2015. It was suggested that the Respondent did not employ or did not have any knowledge of the Complainant prior to February 2015.

The correspondence stated that the Complainant was employed on a part-time basis and his hours, which were dependent on the demands of the business, varied between 14 and 39 hours per week.

It was further stated that there may be some confusion arising out of the fact that the owner of the liquidated company is now employed with the Respondent as an Operations Director.

CA-00015644-001 (Unfair Dismissal Act, 1977)

The Respondent’s correspondence of 5 September 2017 indicated that the Complainant had received a P45 from the liquidated company and presented same to the Respondent at the commencement of his employment with them.

The correspondence further stated that the Complainant was employed with the Respondent until 22 July 2017 at which point he was given notice of termination of his employment after his function was abandoned, due to a change in territory and work practices. It further states that the Complainant was issued with notice and was interviewed prior to the termination of his contract role.

CA-00015644-003 (Terms of Employment (Information) Act, 1994

The correspondence of 5 September 2017 from the Respondent made no reference to this element of the Complainant's complaint.

CA-00015644-004 (Organisation of Working Time Act, 1997)

The correspondence of 5 September 2017 from the Respondent made no reference to this element of the Complainant's complaint.

CA-00015644-005 (Organisation of Working Time Act, 1997)

In the correspondence of 5 September 2017 from the Respondent, it stated that the Complainant was paid for all his holidays.

CA-00015644-006   (Redundancy Payments Act, 1967)

The correspondence of 5 September 2017 from the Respondent made no reference to this element of the Complainant's complaint.

The first issue for consideration centred on the Complainant's length of service and who his actual employer(s) was/were for the duration of his employment. Having carefully considered all the evidence adduced, I conclude that the Complainant was employed for 5.5 years by a combination of the Respondent and the liquidated company. This conclusion is based on a number of factors.

Firstly, the two companies had a common director. This individual is shown on the company register as both owner and company director of the liquidated company. With regard to the Respondent company, this individual is shown as a company director and, in the correspondence of 5 September 2017, he is described as being employed as an Operations Director. In his oral evidence at the hearing, the Complainant referred to this individual as "the Boss" of the Respondent company. He also stated that this individual was the person who informed him that his employment was being terminated.

Secondly, two letters, which issued to the Complainant in relation to the termination of his employment, clearly show a very significant connection between the two companies. The Complainant received letters, dated 29 July 2017 and 31 July 2017, which were on headed notepaper of the liquidated company, a company which, according to the Respondent’s correspondence of 5 September 2017, had been liquidated in quarter one of 2015.

Both of these letters were signed by the same individual who, on the letter of 29 July, signed as the Financial Controller of the Respondent and on the letter of 31 July, signed as Accounts Admin for the liquidated company. The letter of 29 July stated that the Complainant had been employed by the Respondent until “15 February 2015”, while the letter of 31 July stated that the Complainant had been employed by the Respondent until “22 July 2017”.

Taking all of the above into consideration, it appears quite clear that, while the Complainant may have been employed by two different companies, it was, in effect, the same business. Consequently, I am satisfied that the Complainant's duration of employment was 5.5 years, without any evidential break in service.

CA-00015644-001 (Unfair Dismissal Act, 1977)

The evidence put forward by the Complainant in relation to the termination of his employment was uncontested by the Respondent. Based on the Complainant's evidence, I find that his employment was terminated without proper notice and/or the application of any semblance of process or fair procedure.

The Complainant has not worked since his dismissal. Evidence was provided at the hearing to the effect that his dismissal has had a significant impact on the Complainant's mental health, which in turn is clearly impacting on his ability to source alternative employment.

Consequently, based on the above finding I find that the Complainant was unfairly dismissed and is, therefore, entitled to compensation in this regard. I calculate the appropriate compensation to be 60 weeks, which comprises of 35 weeks to the date of the hearing and an additional 25 weeks to account for future loss. Based on a weekly net wage of €480.46, the compensation amounts to €28,827.60. This amount also covers any outstanding notice.

CA-00015644-003 (Terms of Employment (Information) Act, 1994

Based on the uncontested evidence provided by the Complainant, I find that he did not receive an employment contract or terms and conditions of employment.

Consequently, in line with Section 7(2)(d) of the Terms of Employment (Information) Act, 1994, I award the Complainant maximum compensation of 4 weeks pay, which amounts to €1,921.84.

CA-00015644-004 (Organisation of Working Time Act, 1997)

Again, based on the uncontested evidence provided by the complainant, I find in the Complainant’s favour in relation to unpaid public/bank holidays. In this regard I award the sum of €4,756.45. This represents nine public/bank holidays per year and is based on the Complainant's service of 5 years and 5 months. This represents 49.5 days at a daily rate of €96.09, which amounts to €4,756.45.

CA-00015644-005 (Organisation of Working Time Act, 1997) a

No evidence was presented to support the Complainant's complaint in this regard.

CA-00015644-006   (Redundancy Payments Act, 1967)

Having already found in the Complainant's favour in relation to his claim under the Unfair Dismissals Act, his complaint, under the Redundancy Payment Act, must fall as a result.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find as follows:

CA-00015644-001 (Unfair Dismissal Act, 1977)

I find that the Complainant was unfairly dismissed and I award compensation in the amount of €28,827.60.

CA-00015644-003 (Terms of Employment (Information) Act, 1994)

I find that the Complainant was not provided with terms and conditions of employment and I award compensation in the amount of €1,921.84.

CA-00015644-004 (Organisation of Working Time Act, 1997)

I find in favour of the Complainant in relation to his claim for outstanding public/bank holidays. I award him the sum of €4,756.45, which is subject to the normal statutory deductions pertaining to salary.

CA-00015644-005 (Organisation of Working Time Act, 1997)

The Complainant's complaint in this regard was not upheld.

CA-00015644-006   (Redundancy Payments Act, 1967)

The Complainant's claim for redundancy falls as a result of the decision his favour in relation to his claim for unfair dismissal.

In summary, I find in the Complainant’s favour in relation his complaints under the Unfair Dismissal Act, 1977, the Terms of Employment (Information) Act, 1994 and the Organisation of Working Time Act, 1997 (in relation to public/bank holidays – Claim 004). The total award in relation to these three claims amounts to €35,505.89.

The Complainant’s remaining complaints were not upheld.