ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00010565
Parties:
| Complainant | Respondent |
Anonymised Parties | An employee | An employer |
Complaint(s):
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-00013980-001 | 15/09/2017 |
Date of Adjudication Hearing: 06/04/2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint 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 with the Respondent on 01/10/2015.His duties, in the main, consisted of the collection and delivery of laundry from establishments such as nursing homes, hotels and restaurants and guest houses. The Complainant was dismissed from employment on 09/08/2017 without due process. At the hearing of the complaint the Representative of the Complainant produced a letter that had been issued to all employees of the Respondent Company informing them that the company would be placed in voluntary liquidation with effect from 14th December 2017. The Respondent did not appear at the hearing and attempts to contact him were unsuccessful. The hearing went ahead without the Respondent. |
Summary of Complainant’s Case:
On 8th August 2017 (the day following the August Public Holiday) the Complainant discovered that wages from the previous week had not been lodged to his bank account the previous Friday (the Complainant was weekly paid and his wages would normally be in his bank account every Friday morning). Having arrangements made with his bank to pay bills by standing order the Complainant decided to take time on the Tuesday morning to go to his credit union to withdraw money to lodge to his bank account to ensure his standing order arrangements would be honoured. It was his intention to go into work as soon as he had taken care of this business. The Complainant had sent a text to the Respondent’s supervisor explaining that he would not be in and why. Soon after this the Complainant received a phone call from the Respondent managing director requesting that he come into work. The Complainant explained his situation to him and was told “Don’t bother coming back here, there is no job for you”. The Complainant told the Respondent managing director that this was unfair and that he, the Complainant, would be taking the matter further. The following day,9th August 2017, the Complainant received a letter from the Respondent managing director informing the Complainant that he would be investigating the Complainant’s failure to attend work the previous day. The following day, 10th August 2017, the Complainant received another letter informing him that the Respondent had conducted the investigation and were now informing him of their decision to summarily dismiss him with effect from 11th August 2017.This letter also accuses the Complainant of sending a text to the Managing Director informing him that it was out of principle that he had not come into work on the Tuesday (8th August), it was alleged that this text had also been sent to another employee of the company. On 11th August, the Complainant wrote to the Respondent making the following points: (summarised with only the relevant points included) 1. I have sought legal advice on the matter and I wish to make a number of relevant points to you. Firstly I wish to state that I have never tried to deliberately damage the company. 2. Secondly my version of events differs from your own. On Friday 4th August I, had asked you if I could leave work early to get to the credit union so that I could take money from my savings to pay my bills. The reason for this is not that I cannot manage my financial affairs but because I had not been paid by the company and needed to arrange things so that I canmeet my household commitments. You refused to allow me to leave early even though you knew the reason for this was the non-payment of my wages. I obliged your request to stay and carried out two more orders. When I had finished, it was far too late to get to the Credit Union. 3. On the Tuesday morning at 6.50am I noticed that I had not been paid when I checked the banking app on my phone. I immediately texted the supervisor to say that I could not come in as I really needed to get to the bank to pay my bills. A few hours later I got a phone call from you to ask me about this. When I gave you my reason you said “don’t bother coming back here, there is no job here for you”. 4. In your letter dated the 10thAugust you state that I said my non-attendance was “out of principle” however I believe I used this phrase with you previously in relation to not accepting cash payment from you instead of my normal wages. I believe the way in which your company handles its payments to staff is totally unacceptable and I have expressed this opinion to you previously. However, I would not use this as a reason to not show up for work. I am aware that there are far better ways in which I can protest a grievance. Off course I was annoyed by this but as I said to you over the phone I genuinely needed to get to the bank. The bank does not open until 10.00am and I was waiting for that. 5. You state that you gave me an opportunity to discuss this matter however that is totally false. At no point, did you invite me in to talk to you. You did not advise me of my rights in relation to the investigation. There was no due process followed here. It contravenes legislation and it goes against my contract of employment. 6. As per my contract my dismissal does not fall in line with any of the 15 reasons as outlined in my contract and as I gave notice of my non-attendance my behaviour does not constitute a “substantial reason” 7. Lastly, I wish to state that I have been a loyal employee for the company for the last two years. I am the only constant full-time driver during that time. This letter was not replied to. The complaint was received by the Workplace Relations Commission on 15th September 2017. |
Summary of Respondent’s Case:
The Respondent was notified of the date, time and venue for the hearing by letter dated 1st March 2018. Efforts to contact him on the day were unsuccessful. The Respondent company went into Liquidation on 14/12/2017. |
Findings and Conclusions:
I went over the facts of this case with the Complainant and have reached the following conclusions: 1. An absence of one or two days from work does not constitute gross misconduct and does not warrant summary dismissal. 2. The investigation carried out by the Respondent did not afford the Complainant the right to attend any meeting to hear the charges against him and to respond to any such charges. This is a clear breach of natural justice and S.I. 146 / 2000 and a breach of company procedures. 3. The Complainant prior to this incident has an unblemished work record. 4. The Respondent failed to honour the terms of the contract by failing to pay the Complainant on a weekly basis. I have decided that the Complainant was unfairly dismissed and in seeking the appropriate redress have considered the case UD 114/2012. |
Decision:
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.
The Complainant was unfairly dismissed. I note the Respondent in this case went into voluntary liquidation on Thursday 14th December 2017, this was 18 weeks after the Complainant was dismissed. I have calculated the wages he would have received during this period to be €7,200. In addition to this sum I have calculated that he would have received a redundancy payment of €2,168. I order the payment of €9,168 be paid to the Complainant. |
Dated: 18 May 2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Unfair Dismissal. Respondent in Liquidation. |