ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017414
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00019846-001 | 18/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00019846-002 | 18/06/2018 |
Date of Adjudication Hearing: 17/12/2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 , Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 11 of the Minimum Notice & Terms of Employment Act, 1973 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
This case involves a claim for Unfair Dismissal and payment of Minimum Notice. The Claim is disputed by the Respondent, a Plant Hire Company. |
Summary of Respondents ’s Case:
The Respondent denied both claims. He submitted a written outline of two periods of employment involving the complainant with his company, a Plant hire business. CA 00019846-001 Unfair Dismissal By way of written submission date 19 October 2018, the Respondent set out that the complainant first worked for him during 2017 as a truck Driver. He was removed from this duty due to accidents and complaints about his driving. He was placed on Excavator driving and finished work at Christmas 2017. A P45 was exhibited which demonstrated 50 weeks of work during 2017. A gap in time followed until the complainant again sought work with the Complainant and he recommenced in March 2018 on the Excavator. Some two weeks into his Employment, his car broke down and he was given the loan of a company van to assist his passage to work. The Respondent submitted that he was aware that the complainant also worked with other parties and on 13 June 2018, he asked the complainant to decide which job suited him best. The Complainant walked away without answering. This brought his employment to an end. During the hearing, the respondent confirmed that he had got on well with the complainant during 2017. On his return to work in 2018, he was offered extra hours which he refused. The Complainant did commit to working on Wednesday, 13 June 2018. The Respondent had Top Soil to lift before the weather broke. The Complainant reneged on this agreement to work late and drifted off without answering when the Respondent advise him that he would have to make his mind up who he wanted to work for. The Respondent requested that he return the van to the yard. The Respondent was aware that the complainant had lined up new work to start 1-2 days later. He despatched the P45 once he started this job. During cross examination, he denied that the complainant had returned the van, saying that it was returned a week later. He denied terminating the complainant’s employment. CA 00019846-002 Minimum Notice The respondent disputed the claim and maintained that the complainant had left work on his own volition. |
Summary of Complainant’s Case:
The Complainant outlined his case that he had driven a Bull dozer for the Respondent for 2.5 years. He left at the end of 2017 following an argument with the Respondents son, who denied him use of the van and reduced his holiday pay. He went off working elsewhere and did not claim job seekers benefit. CA 00019846-001 Unfair Dismissal The submitted that he worked a 45-hour week in return for €562.38 gross per week, €500 nett.He had not been furnished with a contract of employment . In March 2018, he returned to work for the Respondent, this time again driving a Bulldozer. He contended that he had been bullied by the Respondent and told by the Respondent not to come back to work. He was unclear regarding his start date with the Respondent and was unsure whether he received a P45 at the end of his employment. The complainant recalled 12 June 2018, where he submitted that he had been asked to put in extra hours at the end of his shift at 5.30 pm and not before. He submitted that the Respondent was aggressive towards him because he decided not to stay on and was waving his arms in the air. The Complainant understood he was told to take the van back to the yard and not to bother to come in to work the following morning and he did not return to work. He confirmed that he secured new work shortly after dismissal and earned more than his work with the Respondent. He contended that he had been unfairly dismissed on 12 June 2018 and sought the remedy of compensation. In response to the Adjudicators questions, he confirmed that the Respondent employed 6 or 7 employees. This was his first argument with the Respondent and he had not considered going back. The Complainant was requested to provide pay slips, in the absence of a contract of employment which might assist in his recommenced date in March 2018. The recommenced date was later clarified as March 26, 2018. CA 00019846-002 Minimum Notice The complainant submitted that he had been dismissed without notice.
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Findings and Conclusions:
I have considered both presentations in this case. CA 00019846-001 Unfair Dismissal The first claim is for Unfair Dismissal defined in Section 1 of the Act as “dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, ( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, The Act goes on to outline exclusions to the protection of this Act in terms of service. Exclusions. 2 2.— (1) This Act shall not apply in relation to any of the following persons: ( a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him . The Complainant has not proposed that he is covered by one of the remaining protections where a waiver of this 1-year continuous service can be considered. I have considered the facts and circumstances of the case as outlined by the parties. I found considerable conflict between the parties on their respective recollection of events leading to the circumstances of the case, where the complainant submitted he had been dismissed on 12 June 2018. The Respondent contended that these events occurred one day later June 13, 2018. In cross matching these dates. June 12, 2018 fell on Tuesday and June 13 on Wednesday. As a Preliminary issue, I identified that I needed to decide whether in the first instance a dismissal had taken place? Only then would Section 2(1) (a) of the Act be considered for application. I was immediately struck by the lack of documentation relevant to both periods of employment in this case. I found it remarkable that while managing a small workforce that the parties were both unclear on the start and end dates of employment. I managed to work through this and confirm with the assistance of P45 dated 23 December 2017 that there was a four-month gap in time between the complainant’s resignation in December 2017 and his recommencement on March 26, 2018. During this time, he was not on lay off and he submitted that he had not worked elsewhere. I have reflected on the evidence adduced in the case. I cannot interpret that the Respondent dismissed the complainant on either the 12 or 13 June 2018. I established that the Respondent carried a high level of frustration towards the complainant, but he held a sincere view that the complainant had given him an undertaking that he would stay on late to pick up the top soil. The Respondent was aggrieved that the complainant appeared to renege on this. From the complainant’s perspective, I understand that he interpreted the Respondent anger as meaning that his job had gone. I have found that this was a mistake on his behalf. For my part, I noted that neither party raised the second P45 in the case. The Complainant was requested to submit his final pay slips to assist in the case. I did not receive these. I would strongly encourage both parties to be more vigilant in terms of their respective employment documentation in any future employment situations. Based on the evidence before me, I must conclude that the complainant left his position on the evening of the 12 or 13 June 2018 and that he was not dismissed. He cannot avail of the definition of dismissal as provided for in Section 1 of the Act. The question of whether the complainant was in possession of one-year continuous service at the time of his Dismissal is therefore, moot. I have found the claim to be not well founded. CA 00019846-002 Minimum Notice I have considered this claim. I did not have the benefit of a Final Pay slip, P45 or a contract of employment in this case. I note that the complainant left his job without discussing notice. I have insufficient detail before me on which to decide on this claim. I find that the claim is not well founded. |
Decision:Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. CA 00019846-001 Unfair Dismissal 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. I have established that the complainant was not dismissed. His claim is not well founded. CA 00019846-002 Minimum Notice Section 11 of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in accordance with the Act. I have found the claim to be not well founded.
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Dated: 29/04/19
Workplace Relations Commission Adjudication Officer: Patsy Doyle
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017414
Parties:
| Complainant | Respondent |
Parties | Tim O'Leary | Mallow Contracts Ltd |
| Complainant | Respondent |
Anonymised Parties | A Plant Hire Driver | A Plant hire company |
Representatives | Appeared in Person | Paudie Sheehan, Proprietor |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00019846-001 | 18/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00019846-002 | 18/06/2018 |
Date of Adjudication Hearing: 17/12/2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 , Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 11 of the Minimum Notice & Terms of Employment Act, 1973 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
This case involves a claim for Unfair Dismissal and payment of Minimum Notice. The Claim is disputed by the Respondent, a Plant Hire Company. |
Summary of Respondents ’s Case:
The Respondent denied both claims. He submitted a written outline of two periods of employment involving the complainant with his company, a Plant hire business. CA 00019846-001 Unfair Dismissal By way of written submission date 19 October 2018, the Respondent set out that the complainant first worked for him during 2017 as a truck Driver. He was removed from this duty due to accidents and complaints about his driving. He was placed on Excavator driving and finished work at Christmas 2017. A P45 was exhibited which demonstrated 50 weeks of work during 2017. A gap in time followed until the complainant again sought work with the Complainant and he recommenced in March 2018 on the Excavator. Some two weeks into his Employment, his car broke down and he was given the loan of a company van to assist his passage to work. The Respondent submitted that he was aware that the complainant also worked with other parties and on 13 June 2018, he asked the complainant to decide which job suited him best. The Complainant walked away without answering. This brought his employment to an end. During the hearing, the respondent confirmed that he had got on well with the complainant during 2017. On his return to work in 2018, he was offered extra hours which he refused. The Complainant did commit to working on Wednesday, 13 June 2018. The Respondent had Top Soil to lift before the weather broke. The Complainant reneged on this agreement to work late and drifted off without answering when the Respondent advise him that he would have to make his mind up who he wanted to work for. The Respondent requested that he return the van to the yard. The Respondent was aware that the complainant had lined up new work to start 1-2 days later. He despatched the P45 once he started this job. During cross examination, he denied that the complainant had returned the van, saying that it was returned a week later. He denied terminating the complainant’s employment. CA 00019846-002 Minimum Notice The respondent disputed the claim and maintained that the complainant had left work on his own volition. |
Summary of Complainant’s Case:
The Complainant outlined his case that he had driven a Bull dozer for the Respondent for 2.5 years. He left at the end of 2017 following an argument with the Respondents son, who denied him use of the van and reduced his holiday pay. He went off working elsewhere and did not claim job seekers benefit. CA 00019846-001 Unfair Dismissal The submitted that he worked a 45-hour week in return for €562.38 gross per week, €500 nett.He had not been furnished with a contract of employment . In March 2018, he returned to work for the Respondent, this time again driving a Bulldozer. He contended that he had been bullied by the Respondent and told by the Respondent not to come back to work. He was unclear regarding his start date with the Respondent and was unsure whether he received a P45 at the end of his employment. The complainant recalled 12 June 2018, where he submitted that he had been asked to put in extra hours at the end of his shift at 5.30 pm and not before. He submitted that the Respondent was aggressive towards him because he decided not to stay on and was waving his arms in the air. The Complainant understood he was told to take the van back to the yard and not to bother to come in to work the following morning and he did not return to work. He confirmed that he secured new work shortly after dismissal and earned more than his work with the Respondent. He contended that he had been unfairly dismissed on 12 June 2018 and sought the remedy of compensation. In response to the Adjudicators questions, he confirmed that the Respondent employed 6 or 7 employees. This was his first argument with the Respondent and he had not considered going back. The Complainant was requested to provide pay slips, in the absence of a contract of employment which might assist in his recommenced date in March 2018. The recommenced date was later clarified as March 26, 2018. CA 00019846-002 Minimum Notice The complainant submitted that he had been dismissed without notice.
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Findings and Conclusions:
I have considered both presentations in this case. CA 00019846-001 Unfair Dismissal The first claim is for Unfair Dismissal defined in Section 1 of the Act as “dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, ( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, The Act goes on to outline exclusions to the protection of this Act in terms of service. Exclusions. 2 2.— (1) This Act shall not apply in relation to any of the following persons: ( a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him . The Complainant has not proposed that he is covered by one of the remaining protections where a waiver of this 1-year continuous service can be considered. I have considered the facts and circumstances of the case as outlined by the parties. I found considerable conflict between the parties on their respective recollection of events leading to the circumstances of the case, where the complainant submitted he had been dismissed on 12 June 2018. The Respondent contended that these events occurred one day later June 13, 2018. In cross matching these dates. June 12, 2018 fell on Tuesday and June 13 on Wednesday. As a Preliminary issue, I identified that I needed to decide whether in the first instance a dismissal had taken place? Only then would Section 2(1) (a) of the Act be considered for application. I was immediately struck by the lack of documentation relevant to both periods of employment in this case. I found it remarkable that while managing a small workforce that the parties were both unclear on the start and end dates of employment. I managed to work through this and confirm with the assistance of P45 dated 23 December 2017 that there was a four-month gap in time between the complainant’s resignation in December 2017 and his recommencement on March 26, 2018. During this time, he was not on lay off and he submitted that he had not worked elsewhere. I have reflected on the evidence adduced in the case. I cannot interpret that the Respondent dismissed the complainant on either the 12 or 13 June 2018. I established that the Respondent carried a high level of frustration towards the complainant, but he held a sincere view that the complainant had given him an undertaking that he would stay on late to pick up the top soil. The Respondent was aggrieved that the complainant appeared to renege on this. From the complainant’s perspective, I understand that he interpreted the Respondent anger as meaning that his job had gone. I have found that this was a mistake on his behalf. For my part, I noted that neither party raised the second P45 in the case. The Complainant was requested to submit his final pay slips to assist in the case. I did not receive these. I would strongly encourage both parties to be more vigilant in terms of their respective employment documentation in any future employment situations. Based on the evidence before me, I must conclude that the complainant left his position on the evening of the 12 or 13 June 2018 and that he was not dismissed. He cannot avail of the definition of dismissal as provided for in Section 1 of the Act. The question of whether the complainant was in possession of one-year continuous service at the time of his Dismissal is therefore, moot. I have found the claim to be not well founded. CA 00019846-002 Minimum Notice I have considered this claim. I did not have the benefit of a Final Pay slip, P45 or a contract of employment in this case. I note that the complainant left his job without discussing notice. I have insufficient detail before me on which to decide on this claim. I find that the claim is not well founded. |
Decision:Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. CA 00019846-001 Unfair Dismissal 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. I have established that the complainant was not dismissed. His claim is not well founded. CA 00019846-002 Minimum Notice Section 11 of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in accordance with the Act. I have found the claim to be not well founded.
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Dated: 29/04/19
Workplace Relations Commission Adjudication Officer: Patsy Doyle