ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012532
Parties:
| Complainant | Respondent |
Anonymised Parties | A Driver | A Bread Delivery Company |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00016551-001 | 28/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016551-002 | 28/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016551-003 | 28/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016551-004 | 28/12/2017 |
Date of Adjudication Hearing: 06/04/2018
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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 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 as a driver on 4th March 2013 and his employment ceased on 1st July 2017. His pay was €1080 fortnightly. He claims that he was unfairly dismissed, did not receive minimum notice, did not receive appropriate annual leave and did not receive terms and conditions of employment. The respondent did not attend. |
Summary of Respondent’s Case: CA-00016551-001
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 in the circumstances, I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances. |
Summary of Complainant’s Case: CA-00016551-001
The complainant detailed that he was advised on 26th of June 2017 to take a week’s holiday and that when he returned there would be changes to his route. He contacted the company on numerous occasions regarding returning to work but received no reply. He sent a letter to them on 4th July 2017 and approximately a week later received a P45 dated 1st July 2017.
He secured alternative employment since 17th July 2017 on a higher rate of pay. |
Findings and Conclusions: CA-00016551-001
It was regrettable that the respondent did not attend the hearing to put forward a defence to the above 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 and based on the evidence of the complainant, I find therefore that the claim is well founded. The complainant sought compensation and secured employment over two weeks after his dismissal. Sec 7 (1) (c) (ii) of the Unfair Dismissals Act 1977 states, “if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances.”
Based on all of the above, in accordance with s.7 of the Act, I order the Respondent to pay the Complainant the sum of €2,160.00 gross for the unfair dismissal. |
Summary of Complainant’s Case: CA-00016551-002
The complainant detailed that he had not received his annual leave entitlements throughout 2013 (owed 3 weeks), 2014 (owed 1 week), 2015 (owed 3 weeks), 2016 (owed 2 weeks) and 2017 (owed 2 weeks). |
Summary of Respondent’s Case: CA-00016551-002
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 in the circumstances, I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances.
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Findings and Conclusions: CA-00016551-002
The complainant detailed he had not received his full annual leave entitlements in previous years including 2013 (owed 3 weeks), 2014 (owed 1 week), 2015 (owed 3 weeks), 2016 (owed 2 weeks) and 2017 (owed 2 weeks)
Section 19 of the Act details that an employee should be entitled to annual leave equal to
By application of the time limit provided for at Section 27(4) of the Act the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 29th June 2017 until 28th December 2017. The relevant leave year is defined by Section 2(1) of the Act, it provides that a leave year is a year commencing on 1stApril. Hence, any contravention of the Act arising from the Respondent’s failure to pay the Complainant in respect of outstanding annual leave on the cessation of his employment accrued within the period, i.e. from 1stApril to 1st July 2017. In so far as the complaint relates to the Respondent's failure to pay the Complainant in respect of annual leave taken on dates prior to those dates, it is statute-barred and, to that extent, it is not cognisable. As the Complainant worked approximately 520 hours between April-July 2017, he accrued a statutory entitlement of 41.6 hours annual leave at the rate of €13.50 per hour. Accordingly, the complainant’s claim is well founded and I order the Respondent to pay to the Complainant compensation to the sum of €562.00.
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Summary of Complainant’s Case: CA-00016551-003
The complainant outlined that he never received any terms and conditions of employment during his employment. |
Summary of Respondent’s Case: CA-00016551-003
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 in the circumstances, I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances.
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Findings and Conclusions: CA-00016551-003
In the absence of any contrary evidence I am satisfied that the complainant was not provided with a written statement on his terms of employment within two months of his commencement of employment which is contrary to section 3 of The Terms of Employment (Information) Act, 1994.
I therefore find that the complaint is well-founded and in accordance with section 7 (2) (d) of the Act I order the respondent to pay compensation of €2,000. |
Summary of Complainant’s Case: CA-00016551-004
The Complainant submits that he was summarily dismissed and not given any notice of termination as is required. |
Summary of Respondent’s Case: CA-00016551-004
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 in the circumstances, I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances. |
Findings and Conclusions: CA-00016551-004
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 the Minimum Notice and Terms of Employment Act, 1973 which under Section 4 requires two weeks’ notice if the employee has been in the continuous service of his employer for two years or more, but less than five years.
I find that the complaint is well-founded and I direct that the Respondent pay the Complainant €1,080. |
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.
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.
Decision:
CA-00016551-001 I find that the complaint is well-founded and direct that the respondent pay the complainant €2,160 gross for the unfair dismissal CA-00016551-002 I find that the complaint is well-founded and direct that the respondent pay the complainant €562.00. CA-00016551-003 I find that the complaint is well-founded and direct that the Respondent pay the Complainant €2,000. CA-00016551-004 I find that the complaint is well-founded and I direct that the Respondent pay the Complainant €1,080. |
Dated: 31st July 2018
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Unfair dismissal, minimum notice, terms and conditions of employment, annual leave |