ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00017650
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-00022805-001 | 23/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00022805-002 | 23/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00022805-003 | 23/10/2018 |
Date of Adjudication Hearing: 04/01/2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 23rd October 2018, the complainant referred complaints to the Workplace Relations Commission. The complaints were scheduled for adjudication on the 4th January 2019. The complainant attended the adjudication. He was represented by Tom O’Donnell, BL instructed by Michael J Breen & Co Solicitors.
At the time the adjudication was scheduled to commence, it was apparent that there was no attendance by or on behalf of the respondent. I verified that the respondent was on notice at its registered address of the time, date and venue of the adjudication. Having taken these steps, I proceeded with the adjudication in the absence of the respondent.
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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:
The complainant was summarily dismissed from his employment as a lorry driver on the 3rd May 2018. Taking account of basic pay, a premium and a good driver bonus, he earned €628.33 per week. |
Summary of Complainant’s Case:
At the outset of the adjudication, the complainant confirmed the registered address of the respondent, a limited company. He had worked from a depot. His employment commenced on the 3rd March 2017 and ended on the 3rd May 2018.
The complainant outlined that he asked the respondent for time off to attend a medical appointment. He then emailed the certificate of absence. Within minutes, a director phoned and called the complainant “a w*****, a c*** and a retard”. The complainant did not understand where this abuse was coming from. He did not engage with this conversation, but the director rang again to say “you’re f*cking fired”. The complainant was instructed to return the truck to the Dublin depot and this left him stranded as he would normally leave the truck near his home. The complainant said that he later received a call from a senior manager, who confirmed his dismissal. There was nothing in writing from the respondent. The complainant then left the truck at a local facility and left the keys with security.
The complainant outlined that he found a job on lower pay after three weeks. In respect of redress, the conduct of the employer and the employee should be taken into account as well as the efforts of mitigation. He mitigated his loss and would incur ongoing losses. The complainant outlined that he was entitled to one week of notice pay. He took 10 days of annual leave during the time of his employment and was owed outstanding leave. |
Summary of Respondent’s Case:
The respondent did not attend the adjudication and did not contradict the complaints. |
Findings and Conclusions:
CA-0022805-001 Unfair Dismissals Act This is a complaint pursuant to the Unfair Dismissals Act. The complainant gives a cogent account of being summarily dismissed by the respondent. He details an abusive phone call. The respondent has not set out how the dismissal was procedurally or substantively fair. It follows that the complaint pursuant to the Unfair Dismissals Act is well founded. The complainant’s employment ended on the 3rd May 2018 and he commenced other employment on the 21st May 2018, although on lower pay. Undoubtedly, the complainant mitigated his loss. While his new role is on lower pay, he is likely to progress to higher pay in his new role or in another role. Taking these factors into account, I award redress of €10,000.
CA-00022805-002 Minimum Notice & Terms of Employment Act The complainant is entitled to one week’s notice pay at the end of his employment. There was, therefore, a contravention of the Act. Section 12 of the Act allows for the award of compensation for loss arising from such a contravention. I, therefore, award the complainant the week of notice pay (€628.33) and an award of compensation of €300 for a breach of the statutory right. The sum of these amounts is €928.33.
CA-00022805-003 Organisation of Working Time Act The complainant outlined that he availed of 10 days of annual leave and was owed more days. I find that the complainant is owed outstanding cesser pay for untaken annual leave. Taking account of the extent of the breach, I award redress of €1,400. |
Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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-00022805-001 For the reasons set out above, I find that the complaint pursuant to the Unfair Dismissals Act is well founded and I award redress of €10,000.
CA-00022805-002 I find that the complaint pursuant to the Minimum Notice & Terms of Employment Act is well founded and I award redress of €928.33.
CA-00022805-003 I find that the complaint pursuant to the Organisation of Working Time Act is well founded and I award redress of €1,400. |
Dated: 04/04/2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Unfair Dismissals Act Minimum Notice & Terms of Employment Act / section 12 Organisation of Working Time Act / cesser pay |