ADJ-00010940

Complainant

Respondent

Anonymised Parties

Manager

Manufacturing Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00014867-001

05/10/2017

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

CA-00014867-002

05/10/2017

The Complainant was employed from 29th February 2016 until the employment was terminated without notice on 9th April 2017. The Complainant was paid €673.00 gross per week and he worked 40 hours a week. The Complainant referred complaints to the Workplace Relations Commission on 5th October 2017 alleging the Respondent had breached Section 5 of the Payment of Wages Act, 1991 – 2015 and he claimed he was unfairly dismissed under the Unfair Dismissals Act, 1977 – 2015.

Unfair Dismissals Act, 1977 – 2015. The Respondent stated that the Complainant was dismissed on 9th April 2017following an investigation and disciplinary sanction relating to loss of stock being 3 Pallets of Paper Bags. He was issued with a letter dated 8th April 2017 to attend an investigation meeting and he was informed verbally that he could attend with a representative. This investigation was conducted by a named Director. A decision was taken to dismiss the Complainant. The Complainant was not issued with a letter of dismissal and the Complainant was issued with his P45 by email on 5th July 2017 and this was confirmed by the Complainant.

Payment of Wages Act, 1991 – 2015. The Respondent provided a print out of all wages paid to the Complainant commencing on 6th March 2016 with the last wages of €673.07 paid to the Complainant on 9th April 2017. The Respondent disputed that the Complainant had not been paid his full wages. The Respondent confirmed that the Complainant had not been paid minimum notice on termination of the Employment. There was no submission made by the Respondent in relation to the complainant from the Complainant that he did not receive his annual leave entitlements on termination of his employment.

Payment of Wages Act, 1991 – 2015. The Complainant stated that he had not been paid his minimum notice entitlement on termination of his employment and he is claiming one week’s pay in accordance with the Act.

The Complainant stated that he was in receipt of a Critical Skills Employment Permit from the Department of Jobs, Enterprise an Innovation and when he commenced employment on 29th February 2016 he was not paid his wages for the months of March and April 2016 and he is claiming payment of €2692.28 gross for each month. He stated that although his P45 issued to him in July 2017 states the date of termination as 9th April 2017, the Complainant stated that he worked up to 1st May 2017 but was not paid for this.

The Complainant stated that he worked for 15 weeks at 40 hours a week but had not been paid his accrued annual leave on termination of the employment. He is claiming payment of €1018.40 gross.

Unfair Dismissals Act, 1977 – 2015. The Complainant stated that he attended work and performed his normal duties from 9th April 2017 to 1st May 2017 and he was never informed of any issue in relation to his work nor was he informed of any dismissal. In fact the Respondent had provided written references to the Complainant on 1st April 2017, 6th April 2017 and 29th June 2017 – copies provided. The Complainant had raised the non- payment of his wages from 2016 a number of times with the named Managing Director a number of times when he was informed he had been dismissed effective from 9th April 2017. However, the Complainant had continued to work for the Respondent up until 1st May 2017. He queried the reason for his dismissal on a number of occasions but got no response.

Subsequent to the Complainant lodging his complaint with the WRC on 5th October 2017 he was provided with documentation through the WRC that he was provided with documentation from the Respondent concerning an investigation letter and investigation report but these had never been provided to the Complainant prior to his dismissal on 1st May 2017. It is clear that fair procedures and natural justice were not applied to the dismissal of the Complainant.

The decision of the Respondent to dismiss the Complainant has had serious consequences for the Complainant as the dismissal has led to an interruption to his continuous employment within the state and the consequent refusal of his request for a Stamp 4 Visa. He was not granted a Stamp 4 Visa until 15th January 2018 and he had to exist on an allowance paid to asylum seekers of €21.65 per week. The Complainant is claiming compensation of 104 weeks wages.

On the basis of the evidence from both parties I find as follows –

Payment of Wages Act – 1991 – 2015.

Preliminary Issue – Time Limits. Section 41(6) of the Workplace Relations Act, 2015 provides that a complaint must be lodged within the period of 6 months of the alleged contravention to which the complaint relates. These complaints were lodged with the WRC on 5th October 2017 therefore the time period covered by these complainants are from 6th April 2017 to 9th April 2017 or as the Complainant has argued to 1st May 2017 when he states he was dismissed. There was no application for an extension of time as provided for under Section 41(8) of the Workplace Relations Act, 2015. Therefore, I can only deal with the complaints relating to Minimum notice – Wages for April 2017 and accrued annual leave on termination of the employment. The complaint in relation to alleged non-payment of wages for March and April 2016 are statute barred by operation of Section 41(6) of the 2015 Act.

Minimum Notice - In accordance with the Minimum Notice and Terms of Employment Act, 1973 the Complainant would have been entitled to payment of one week’s wages being €673.07.

Annual Leave – On the uncontested evidence of the Complainant, not disputed by the Respondent, the Complainant worked 15 weeks @ 40 hours a week =   48 hours x 8% = €1018.40 gross

Wages April 2017 from 9th April to 1st May 2017. There was no evidence presented to me at the Hearing to support the contention of the Complainant that he had in fact worked up to 1st May 2017 when he says he was informed he had been dismissed effective from 9th April 2017.

Unfair Dismissals Act 1977 – 2015. The Complainant was in receipt of a Critical Skills Employment Permit from the State effective from 29th February 2016 which was due to expire on 28th February 2018. The conditions of this permit provide that a person in receipt of this permit must work in the State for the duration of their critical Skills Employment Permit or at a minimum for a continuous period of 21 months. The Complainant could not fulfil this requirement accordingly he lost his Employment Permit when the employment was terminated according to the P45 on 9th April 2017.

The Respondent alleges the Complainant was dismissed for embezzlement and abuse of his authority at work for personal gain. The Respondent provided three documents which they asserted complied with due process and fair procedures in relation to the dismissal. One letter dated 8th April 2017 purports to be a letter informing the Complainant that the Respondent is conducting an investigation into loss of company stock – it names the person conducting the investigation which says the investigation should be concluded by 9th April 2017 and that he would be informed of the outcome and if there was a case to answer he would be invited to attend a Disciplinary Hearing. He was informed that the Investigator may invite him to attend the meeting to explain his version of events but that the Complainant was free to contact the investigator if he could be of assistance. The Complainant was not invited to the investigation meeting nor was he informed of what was being investigated save “Loss of company assets namely production stock”. There were no specifics provided to the Complainant in relation to these unnamed assets.

The Investigation Report is signed and dated by the Investigator on 9th April 2017. I note that this investigation report also references there were two people other than the Complainant interviewed, namely the Investigator himself and a Machine Operator but there were no notes/minutes of these interviews including the interview the Investigator conducted with himself. There is also reference to an Anonymised Statement from a named person of another company but again there was no statement/notes or minutes available to the Hearing or indeed provided to the Complainant. The Recommendation from this Investigation Report states – “fraud and theft, dismiss, consider criminal proceedings”.

Then the third document provided to the Hearing is a letter dated 8th April 2017 and headed Notice of disciplinary meeting to take place on 8th April 2017 at14.00. This letter informed him that he was the subject of an investigation and that the possible consequences might be dismissal from work and he could be accompanied by another work colleague or trade union representative. The evidence was that this meeting never took place and the Respondent did not produce any notes/minutes of this purported meeting which was also scheduled to take place prior to the outcome of the investigation which according to the other letter dated 8th April 2017 was not due to be completed until 9th April 2017, the day after the Disciplinary Hearing was due to take place. I also note that he was instructed according to one letter dated 8th April 2017 not to attend at work while the investigation was taking place.

Finally the Respondent confirmed that there was no letter of dismissal and his P45 did not issue until 5th July 2017, some three months after the purported dismissal of 9th April 2017.

I note that the Complainant was not in possession of an employment permit between April 2017 and 15th January 2018 and evidence was provided in relation to this by letter dated 9th August 2017 from the Department of Jobs, Enterprise and Innovation which states that his permit “has now been cancelled and is no longer valid”.

Unfair Dismissal – Employment Permit – lack of fair procedures – award of €17,000

Payment of Wages – some periods statute barred – accrued annual leave and minimum notice.