MND188

FULL RECOMMENDATION

MN/18/15

DETERMINATIONNO.MND188

ADJ-00007789 CA-00010393-025

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

PARTIES :

SPRINT COATINGS LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

TOMASZ WARZYCHA
(REPRESENTED BY BLAZEJ NOWAK)

DIVISION :

Chairman: Mr Haugh
Employer Member: Ms Connolly
Worker Member: Ms Treacy

SUBJECT:
1. An appeal of an Adjudication Officer's Decision no ADJ-00007789.

BACKGROUND:

2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on 19 June 2018. A Labour Court hearing took place on 24 September 2018. The following is the Determination of the Court:

DETERMINATION:

Background to the Appeal

This is Mr Tomasz Warzycha’s (‘the Complainant’) appeal against a decision of an Adjudication Officer (bearing claim reference number ADJ-00007789; CA-000010393-026 and dated 13 June 2018) under the Minimum Notice and Terms of Employment Act 1973 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 19 June 2018. The Court heard the appeal in Dublin on 24 September 2018.

The Complaint was employed by Sprint Coatings Limited (‘the Respondent’) (or a predecessor company) between 3 July 2006 and 16 March 2017 on which latter date he was summarily dismissed for gross misconduct. His claim is for compensation in respect of the Respondent’s failure to issue him with six weeks’ notice of termination under the Act or to pay him in lieu thereof.

The Adjudication Officer held the complaint was not well-founded and that the Respondent was entitled to dismiss the Complainant without notice in all the circumstances.

Complainant’s Submission

The substantive part of the Complainant’s written submission was extraordinarily brief and, therefore, is appropriately reproduced here in full:

“The employee was dismissed on 16/03/2017 without any notice. Having admitted his wrongdoing that took place on 9/03/2017. The statement signed by the Claimant and dated 15/03/2017 is attached.
The employee was entitled to 6 week (sic) notice on termination. At 714.90 euro/week.
Submission
The Court is respectfully requested to award the Minimum Notice entitlements.”

The Complainant’s representative, Mr Blazej Nowak, when asked by the Court how he expected it to determine whether summary dismissal was an appropriate sanction or not in circumstances where no appeal under the Unfair Dismissals Act 1977 was before it, orally submitted that the Employment Appeals Tribunal had determined similar cases in the past. Mr Nowak, however, did not cite or open any of the determinations of the Tribunal he had in mind in support of this assertion.

Respondent’s Submission

The Respondent submits that summary dismissal is provided for as follows in the written contract of employment issued to the Complainant in August 2008: “Certain serious breaches of Company rules, custom or practice may result in your being dismissed without notice or pay in lieu of notice.” The Complainant’s employment, it submits, was terminated pursuant to this contractual provision following his admission of a serious breach of health and safety procedures.

Discussion and Decision

The burden of proof in the within appeal lies four-square on the Complainant. The Complainant has not advanced any argument, either in his written submission or in oral submission, that establishes on the balance of probabilities that the Respondent was not entitled to rely on section 8 of the Act which section provides:

‘Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.’

The appeal is dismissed and the decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court

Alan Haugh
CR______________________
30 November, 2018Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.