ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012180
Parties:
| Complainant | Respondent |
Anonymised Parties | Agricultural Labourer | Farmer |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016122-001 | 04/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016122-003 | 04/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016122-004 | 04/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00016122-005 | 04/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016122-007 | 04/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00016122-008 | 04/12/2017 |
Date of Adjudication Hearing: 20/03/2018
Workplace Relations Commission Adjudication Officer: Gerard McMahon
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 complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The claimant worked as a farm labourer. In 2017 he returned to his native land. This absence was not (allegedly) authorised by the respondent, who argued that he had already taken his annual leave. He replaced the claimant. Subsequently the claimant lodged a series of claims against his former employer. |
Summary of Complainant’s Case:
The complainant lodged a series of claims against the respondent: CA-00016122-001 – Failure by the respondent to compensate for Sunday work. He claims that he worked approx. 30 Sundays per annum. CA-00016122-003 – Failure by the respondent to pay for annual leave. Though given leave, he claims that he was not paid for it. CA-00016122-004 – Failure by the respondent to compensate for public holidays, but he cannot say how many. CA-00016122-005 – Failure by the respondent to pay in lieu of termination (minimum) notice. CA-00016122-007 – Failure by the respondent to issue a written statement of his employment terms. That is, he received no contract of employment. CA-00016122-008 – He was unfairly dismissed. On return (to work) from his holidays the respondent had taken on new staff and the claimant was sent home. No due process applied to the dismissal. The claimant alleges that he told the respondent that he would not be available for work (from ~ Sept. 5th to Oct. 19th, 2017) when he would be out of the country. |
Summary of Respondent’s Case:
In response, the respondent explained that: CA-00016122-001 – The claimant was given a choice as to which days he wished to work. He agreed ‘absolutely’ that 30 Sundays per annum is an accurate estimate, but he was given time off in lieu (T.O.I.L.) (and other benefits). No records thereof were maintained. CA-00016122-003 – The respondent did pay for annual leave, though no record thereof was made. He acknowledged that 2 weeks’ holiday pay is outstanding to the claimant for 2017. CA-00016122-004 – The respondent did compensate for public holidays via T.O.I.L. No records thereof were maintained. CA-00016122-005 – The issue of payment in lieu of termination (minimum) notice does not apply as the claimant was not dismissed. In effect, by failing to show up for work (or appropriately explain his absence), it was a voluntary resignation. CA-00016122-007 – The absence of a written statement of the claimant’s employment terms - or contract of employment – is due to the fact that the contract was verbal. CA-00016122-008 – He was not unfairly dismissed. His absence from work (from ~ Sept. 5th to Oct. 19th, 2017) after his approved holidays necessitated his replacement. |
Findings and Conclusions:
The findings and conclusions in respect of each claim are set down discretely below (n.b. portions of the alleged contraventions occurred more than six months before the presentation of the complaint): CA-00016122-001 – The absence of records is fatal to the respondent’s case. No records in respect of Sunday working were maintained. Parties agree that ~30 Sundays were worked p\a. CA-00016122-003 – The absence of records is fatal to the respondent’s case. No records in respect of annual leave\paid holidays were maintained. Parties differed as to the claimant’s start date. The claimant alleges that he commenced employment on Jan. 10th 2010. At hearing, the claimant held that the commencement date was Jan. 24th, 2011. However, his letter (dated Nov. 2017) clearly states Jan. 2010. He acknowledged that 2 weeks’ holiday pay is outstanding to the claimant for 2017. CA-00016122-004 – The absence of records is fatal to the respondent’s case. No records in respect of public holidays were maintained. The respondent did compensate for public holidays via T.O.I.L., but no records thereof were maintained. CA-00016122-005 – The issue of payment in lieu of termination (minimum) notice does apply as there was (in effect) a dismissal, though the claimant’s unauthorised absence did contribute to this dismissal decision. However, the claim was (incorrectly) lodged under the Payment of Wages Act. CA-00016122-007 – The absence of a written statement of the claimant’s employment terms - or contract of employment – is due to the fact that the contract was verbal. However, the existence of a ‘verbal’ contract does not exempt parties from their legal obligations in this regard. CA-00016122-008 – The claimant was unfairly dismissed in the absence of due process. However, his unauthorised absence from work (from ~ Sept. 5th to Oct. 19th, 2017) after his approved holidays was a contributory factor in the dismissal. Notably, the claimant took up new employment with effect from Jan. 2018. |
Decision:
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.
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.
CA-00016122-001 – The claim is upheld. An award of €1,968.50 shall be paid to the claimant within 42 days. CA-00016122-003 – The claim is upheld. An award of €750 shall be paid to the claimant within 42 days. CA-00016122-004 – The claim is upheld. An award of €337.50 shall be paid to the claimant within 42 days. CA-00016122-005 – The claim is not upheld. CA-00016122-007 – The claim is upheld. An award of €1,500 shall be paid to the claimant within 42 days. CA-00016122-008 – The claim is upheld. An award of €6,000 shall be paid to the claimant within 42 days.
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Dated: 4th September 2018.
Workplace Relations Commission Adjudication Officer: Gerard McMahon
Key Words:
Dismissal - Holidays - Notice - Sunday work |