ADJUDICATION OFFICER DECISION and RECOMMENDATION

Adjudication Reference: ADJ-00008879

Parties:

	Complainant	Respondent
Anonymised Parties	A Sales Manager	A Sports Wear Company.

Representatives

Self-Represented.

Did not attend.

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00011767-001	06/06/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00011767-002	06/06/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-003	06/06/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-005	06/06/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-006	06/06/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-007	06/06/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00011767-008	06/06/2017
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00011767-009	06/06/2017
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00011767-010	06/06/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00011767-011	06/06/2017

Date of Adjudication Hearing: 23/10/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

1: Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 6 of the Payment of Wages Act, 1991;Section 27 of the Organisation of Working Time Act, 1997; Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012; Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

1:A Time limits:

The Complaint was lodged with the WRC on the 6th June 2017 - this being outside of the six-month initial time limit for the receipt of claims. The Dismissal was alleged to have taken place on the 26th November 2016.

The Complainant appealed ,at the Oral Hearing, this six-month time limit to the Adjudication Officer. The Complainant based his appeal on the very short period the time limit had been exceeded, his reliance on flawed advice from a professional advisor and the fact that he had received no statutory minimum notice. This latter would have brought the claim within time.

Having considered his presentation, I decided to allow the claim to proceed as it falls within the second six-month period for the lodging of claims on appeal to an Adjudication Officer.

2: Background:

The issues in contention primarily concern the alleged Unfair Dismissal of a Sales Manager by a Sports Wear Company. There are associated Working Time and Employment Information complaints also attached.

3: Summary of Complainant’s Case:

Act	Complaint/Dispute Reference No.	Summary Complaint.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00011767-001	The Complainant was Dismissed without any proper End of Employment /Dismissal /Grievance /Appeal procedures. The Dismissal was accordingly automatically Unfair.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00011767-002	The Complainant is due 8 weeks’ Pay in Lieu of Statutory Notice for the ending of his employment, Salary for his last month and Commission for the last two months (Oct /Nov 2016) of his employment. Documentary evidence was presented in support.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-003	The Complainant was not paid for 6 Sundays worked in 2016 prior to the Dismissal. Sundays in 2015/2014 were also unpaid.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-005	The Complainant acknowledged that he had 16 days holidays in 2016. He is claiming for the balance of Statutory Holidays -i.e. 4 days .
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-006	The Complainant did not receive Statutory Paid Breaks during the Working day.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-007	For the period from the beginning of July to the end of December each year the Complainant was required to work in excess of 48 Hours per week.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00011767-008	The Complainant had never received a Contract of Employment or a Statement of Terms and Conditions of work as required by the Act.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00011767-009	Claim was withdrawn as not filed under relevant Legislation.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00011767-010	Claim was withdrawn as not filed under relevant Legislation.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00011767-011	The Complainant was subjected to Bullying and Harassment by his employer – specifically, in e- mail correspondence and the general attitude of the Directors to him during late 2015 and through out 2016.

4: Summary of Respondent’s Case:

The Respondent did not appear at the Hearing and no evidence either written or oral was presented to the Adjudication.

I was satisfied that proper correspondence had been served on the Respondents at the Paisley, UK address. This address having been provided by the Respondent during earlier correspondence with the WRC.

5: Findings and Conclusions:

5:1 Relevant Law.

The principal piece of legislation in this case is the unfair Dismissals Act,1977. This legislation places the Burden of Proof, generally, on the former Employer – the Respondent - to justify a Dismissal decision. Statutory Instrument SI 146 of 2000 applies - Statutory Code of Practice on Grievance and Disciplinary Procedures. The rules of Natural Justice also apply – as set out by Mr. Justice Flood in Frizelle v New Ross Credit Union

In Frizelle v New Ross Credit Union Ltd, [1997]IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

5:2 Non-Appearance of Respondent.

In the absence of any evidence or appearance from the Respondent at Unfair Dismissal proceedings the presumption must fall, generally , in favour of the Complainant once the claim is deemed to have been properly lodged and is within the proper jurisdiction of the Adjudication officer. Noting the comments under Procedure in Section One A above I was happy that the complaint had been properly lodged.

The Complainant attended the Hearing and made a detailed Oral presentation supported where necessary by documentary materials. I found his evidence credible and his presentation of such probity as to allow the legal balance of probability to rest with his version of events.

5:3 I set out below my Adjudication decisions and Recommendation.

Act	Complaint/Dispute Reference No.	Summary Adjudication Decision
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00011767-001 Dismissal	An Unfair Dismissal took place - there were no proper procedures followed and no appeal allowed. Natural Justice did not appear to have been applied. Bearing in mind that the Complainant was setting up his own Business following the Dismissal and the loss of earnings due to the Dismissal was heard to accurately quantity I award the sum of €20,000 being eight months pay as a “just and equitable having regard to all the circumstances” Redress.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00011767-002 Statutory Notice , Pay and Commission outstanding.	As no evidence was presented by the Respondent Employer, I had to accept on the balance of probability, the Complainant arguments. Accordingly, the following awards are made. 1) Minimum Notice. An award of 8 - eight weeks pay is made in favour of the Complainant. This being € 4,615 ( 8 week’s pay) 2) Last Month’s Salary An award of €2,500 is made in favour of the Complainant 3) Commission Outstanding Based on information supplied a sum of €1,500 is awarded in favour of the Complainant.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-003 Sunday Working	The Complainant demonstrated that he had worked six Sundays during 2016. In the absence of Responder Rebuttal evidence, I had to accept the Complainant credibility and award the sum of €830 in lieu of Sunday Working – this being the daily rate (plus a 20% premium) x 6. ((30000/52) X 5)(x1.2) x 6
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-005 Holiday Pay.	As no evidence was presented by the Respondent Employer, I had to accept on the balance of probability the Complainant arguments I award 4 days’ pay - €461.52 (€ 115.38 x 4 = €461.52)
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-006 Statutory Paid Breaks	The Burden of Proof to defend a case of this nature rests with the Respondent Employer As there was very little by way of evidence to support or contradict this claim I had to accept , on the balance of probability, the presentation of the Complainant. I ward the sum of €250 as compensation for breach of this Statutory Right.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-007 Work in Excess of 48 hours.	As there was very little by way of evidence to support or contradict this claim I had to accept , on the balance of probability, the presentation of the Complainant. I ward the sum of €250 as compensation for breach of this Statutory Right.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00011767-008 Statement of Terms and Conditions of work	It appeared that a Contract had been furnished in late 2016. This was well outside the required statutory Limits. As Compensation I award the sum of €100 for breach of this Statutory Right.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00011767-009	Claim was withdrawn as not filed under relevant Legislation.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00011767-010	Claim was withdrawn as not filed under relevant Legislation.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00011767-011 Bullying and Harassment	There was very little direct evidence in this Complaint save for some E mails and reported conversations. Based on the Complainant presentation and the balance of probability I had to find in the Complainant’s favour. The non-Appearance of the Respondent was also a determining factor. Accordingly, I award the sum of €500 as Compensation for the effects of Bullying and Harassment to the Complainant.

6: Decision:

Section 41 of the Workplace Relations Act 2015:; Section 6 of the Payment of Wages Act, 1991;Section 27 of the Organisation of Working Time Act, 1997; Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012; Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969requires that I make a decision and or Recommendation in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Act	Complaint/Dispute Reference No.	Summary Decision or Recommendation / Please refer to Section 5 above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00011767-001 Unfair Dismissal	Dismissal was Unfair. Redress of €20,000 ordered.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00011767-002 Wages , Notice & Commission unpaid	Claim is Well Founded Redress of the following amounts is ordered. 1) Minimum Notice. An award of 8 - eight weeks pay is made in favour of the Complainant. This being € 4,615 -( 8 week’s pay) 2) Last Month’s Salary An award of €2,500 is made in favour of the Complainant 3) Commission Outstanding Based on information supplied a sum of €1,500 is awarded in favour of the Complainant.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-003 Sunday Working	Claim is Well Founded The sum of €830 in lieu of Sunday Working – this being the daily rate plus a 20% premium x 6 is awarded.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-005 Holiday Pay	Claim is Well Founded. I award 4 days’ pay - €461.52 (€ 115.38 x 4 = €461.52)
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-006 Working Breaks	Claim is Well Founded. I award the sum of €250 as compensation for breach of this Statutory Right.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011767-007 48 Hour week	Claim is Well Founded. I award the sum of €250 as compensation for breach of this Statutory Right.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00011767-008	Claim is well founded on a Technical Basis only. The sum of€100 is awarded in favour of the Complainant
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00011767-009	Complaint withdrawn
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00011767-010	Complaint withdrawn
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00011767-011 Bullying and Harassment	Complaint is well founded. Compensation of € 500 is Recommended.

7: Taxation.

The appropriate Taxation of any of the monetary awards or compensation sums above is to be considered with the advice of the Irish /Republic of Ireland Revenue Commissioners.

Dated: 16th December 2019