ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014693
Parties:
| Complainant | Respondent |
Anonymised Parties | A Van Driver | Florist |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00019229-001 | 16/05/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00019229-002 | 16/05/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00019229-003 | 16/05/2018 |
Date of Adjudication Hearing: 31/08/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider all documentary or other evidence which may be tendered during the hearing.
This matter comes before the Adjudication Services on foot of a workplace relations complaint form dated the 16th of May 2018 and has been initiated in consequence of the Respondent Employer’s decision to terminate the Complainant’s employment. The employment was terminated orally and during the working day that date being the 19th of August 2017.
The Complainant had worked with the Respondent Employer for the required 52 weeks in advance of the termination and therefore satisfies that criterion. The Complainant’s Workplace Relation Complaint form issued after the first six months since the date of termination but before the expiration of twelve months post termination. I am satisfied that the Complainant had issued Unfair Dismissal proceedings against the Respondent at an incorrect address and having accepted the inadvertence I gave leave for the Complainant to institute fresh proceedings against the Respondent at its correct address. This happened on May 11th, 2018.
I have therefore extended the time for the bringing of this claim in circumstances where I say that Reasonable Cause has been demonstrated.
The fact of dismissal is not in dispute, and the Respondent must therefore accept that the burden of proof rests with it to demonstrate that it has acted fairly and reasonably in all the circumstances.
Both parties opened this case by way of written and/or oral submissions. These have been comprehensively considered by me as has the oral evidence provided by the Complainant.
Section 6(1) of the Unfair Dismissals Act 1977:
“Subject to the provisions of this section 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 were substantial grounds justifying the dismissal”
Summary of Complainant’s Case:
The Complainant says that the decision to terminate was without basis and without preamble. The Management acted in highhanded way and acted as if they were above the law. This he says was reflected in the fact that there was no regard for legislation protecting the rights of the Employee and no Contract of Employment provided to him. |
Summary of Respondent’s Case:
The Respondent’s Head of Finance Mr. W arrived a little late but was afforded every opportunity to make the case for the Respondent. Mr. W appeared to be under the impression that the Complainant had resigned his position and had not previously had sight of a letter from the General Manager EF which confirms that she had terminated the employment. |
Findings and Conclusions:
I have carefully considered the evidence adduced. The Respondent was represented by it’s Chief Financial Officer Mr. W who by his own admission is a new enough recruit to the Respondent business and was not an employee of the Company at the time of the Dismissal in August of 2017. The Complainant was engaged as a driver with the Respondent Company which was a parent company of at least two retail florist shops in Cork and Dublin. Given the nature of the business and the perishable nature of flowers, the Complainant’s role was very important and there can be no doubt that the Complainant was under immense pressure to get through his deliveries each day. The Complainant gave evidence that his employment was without Disciplinary incident, although occasional issues might arise when customers weren’t at home to receive flowers and alternative arrangements would have to be made under pressure. The Complainant gave evidence that he often worked up to 50 hours a week in order that all deliveries would be made. He stated that he might sometimes be contacted after he got home in the evenings to get back out and re-deliver flowers where someone who had not been at home earlier had rung in looking for the delivery. Celebratory days noted for the sending of flowers, were particularly difficult eg. Valentine’s day and Mother’s day. On the 24th of March 2017 Mother’s day fell. The Complainant started extra early but even at that, while the Complainant was still delivering his morning round of deliveries he was called back into the shop to pick up another 30 bouquets just prepared. The Complainant when back at the base pointed out the difficulty with being expected to deliver 50 or 60 bouquets in the remaining hours of the working day. The Complainant raised the inappropriateness and impossibility of the expectation. The Complainant says he was dismissed on the spot, relieved of his van and was forced to take a taxi home. The Branch Manager sent the Complainant a note to the effect that the Complainant had been let go due to the unavailability of work, although the General Manager (MF) subsequently sent an email to the Complainant purporting to set out a Disciplinary history going back a year and culminating in the Dismissal on the 26th of March 2017. Management appeared to be at cross purposes. The Complainant had never seen any such previous allegations and never received the verbal warnings described therein. The Complainant had requested the reasons for his dismissal in an email dated the 2nd of April but says he was a stranger to the matters that were set out in reply and prepared by MF. In correspondence with MF the Complainant categorically refuted all the allegations made and the veracity of the suggestion that he had a history of needing to be disciplined within the workplace. As no one from the Respondent company was available to rebut the Complainant’s sworn testimony and/or provide paperwork which documents any Disciplinary history – including attendances at meetings, warnings, sanctions imposed etc. I find it difficult not to accept the Complainant’s evidence in its entirety. On balance I would accept that there was a lack of fairness in putting such matters to the Complainant after he had already been terminated. I note that Mr. W who did attend on the Respondent’s behalf did not appear to have been fully appraised of the pre-history to the termination of employment and therefore could not comment. In a surprising turn of events the Respondent asked the Complainant to return to the workplace in May of 2017. This may or may not have been in recognition of some fault on their part or to somehow persuade the Complainant not to bring this matter before the WRC. Equally it may have had something to do with the Respondent not being able to recruit another driver. The reason for the change of heart has not been disclosed and I must therefore operate on the premise that there was a continuity of service and that any dismissal which took place in March was invalidated. The Complainant worked with the Respondent for another three months. During that period there appears to have been an uneasy truce, though the issue of bringing the Employer before the WRC in relation to Organisation of Working Time and other legislative obligations was never for from the surface. On the 19th of August 2017, the Complainant was taken aside by the shop Manager Ms. EF and was once again dismissed. There was no build up to this event and the Complainant was not on Notice of the gravity of the meeting to which he was called and at which his employment was terminated. The Complainant subsequently received a letter from EF which retrospectively attempted to justify the Dismissal. The letter purports to outline a number of incidents which had occurred in July and August and which had cumulatively given rise to the Dismissal. However, the Complainant had not been Disciplined in respect of these alleged instances nor yet was there any warnings placed on his file such that would allow for an instant dismissal in the manner alleged.
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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.
Additionally, Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 – I find the Complainant to have been unfairly dismissed by the Respondent and taking into account the lack of evidence regarding mitigation and athe passage of time I award a sum of compensation in the amount of €20,000.00 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 – I am satisfied the claim herein regarding hours worked per week is well founded and I award the sum of €400.00 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 – I am satisfied that the Complainant was not provided with terms and conditions of Employment and I award €250.00 |
Dated: 08/10/18
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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