Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

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-00028312-001

10/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00028312-002

10/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00028312-003

10/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00028312-004

10/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028312-005

10/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028312-006

10/05/2019

The complainant withdrew CA-00028312-003

The Complainant commenced employment with the Respondent as a stock controller/administrator on or about 9th October 2017.   The Complainant’s gross weekly salary was €490 per week.

The Complainant was not furnished with a written statement of the terms and conditions of her employment within 2 months of commencement of her employment or at all contrary to s.3 of the Terms of Employment (Information) Act 1994.

Matters were uneventful until 26th April 2019 when the Respondent summarily and without any warning gave the Complainant notice verbally that her employment would terminate in 4 days’ time.  

The Respondent did not furnish the Complainant with any reason for the dismissal in writing or otherwise despite the Complainant requesting same in writing on 10th May 2019 and as is her entitlement pursuant to s.14 of the Unfair Dismissals Acts 1977-2017.The dismissal of the Complainant was effected without any procedures, fair or otherwise.   The Complainant was not afforded a right of appeal of the decision to dismiss her.   The Respondent refused to give the Complainant a reference.

During the currency of her employment no issues were raised with her regarding her performance of her duties or any other adverse issue whatsoever or howsoever.

The Complainant was not paid my wages in full for the final week because she refused to sign an agreement put in front of her.   All that the Complainant requested was time to read the agreement.

The Complainant was not paid holiday pay in accordance with s.19 and s.23 of the Organisation of Working Time Act 1997.

The Complainant was not paid for the correct notice period in that she was only paid for 2 days and was not paid pay in lieu of notice for the other 3 days.

The Complainant is due pay for one Public Holiday.

The Complainant commenced new employment on 13th May 2019 at a gross salary of €581.25.   However, this is temporary employment and it is therefore difficult to predict any losses going forward.

Legal Submission on the Unfair Dismissal Complaint

It is indisputable but that the Complainant was unfairly dismissed within the meaning of s. 6 of the Act of 1977.   It is further indisputable that the Complainant was not afforded fair procedures in and about the manner of her dismissal.

It is submitted that the manner in which the Respondent effected the dismissal of the Complainant was unreasonable and was such that no reasonable employer would have so done.

It is accepted that the Complainant has mitigated her losses such that in the ordinary course of events were her complaint to be upheld the quantum of same would only be 4 weeks’ salary.  

As the Adjudicator will be aware when measuring loss the criteria laid down in the Act of 1977 for ascertaining the amount to be paid in compensation is in respect of any financial loss incurred by the Complainant and attributable to the dismissal “as is just and equitable having regard to all the circumstances”.

As the Adjudicator will also be aware, when making the “just and equitable” evaluation the Adjudicator has a very wide discretion and may take account of, inter alia, both parties’ conduct prior to the dismissal. See, for example, the decision in Carney v Balkan Tours [1977] I.R. 153 where the Supreme Court held as follows:-

“that the conduct of an employee is a material consideration in determining such employee's right to redress under the Unfair Dismissals Act, 1977.”

That the discretion conferred upon the Employment Appeals Tribunal in relation to the assessment of compensation is very wide.   McCabe v. Lisney & Son [1981] I.L.R.M. 289 approved.

That in the context of the very wide discretion conferred on the Tribunal under the terms of the Unfair Dismissal Act, 1977, it was clear that the legislature intended that the Tribunal should look at all of the circumstances of any given case including the conduct of the parties prior to the dismissal.”

Accordingly , once the amount of financial loss has been determined, it is open to the Adjudicator to increase that sum reflecting the manner in which the Respondent carried out the dismissal and reflecting the fact that the Complainant had no part or fault in causing the loss and or contributed to her own dismissal (see section 7(2)(a), (d) and (e) inserted by section 6(b) of the Act of 1993).

The Annual Leave Claim:

As there was a cessation of employment of the Complainant in the current leave year, being leave year 1st April 2019 to 31st March 2020 and as section 23 applies the Complainant is entitled to be compensated for any holidays accrued.   However, as the Complainant only worked until 26th April 2019 plus the 3 days’ notice period the Complainant accrued holidays for the period 1st April 2019 to 29th April 2019 and accordingly the Complainant is entitled to be paid in respect of any untaken holidays accrued for this period.   The Complainant took 3 days’ annual leave for this period.   In addition the Complainant is entitled to holidays accrued for the previous leave year being holidays accrued for January, February and March 2019.   See section 23, as amended by section 86 of the Workplace Relations Act 2015 set out hereunder:-

(a)          in section 23, by the substitution of the following subsection for subsection (1):

“(1) (a) Where—

(i)            an employee ceases to be employed, and

(ii)          the whole or any portion of the annual leave in respect of the relevant period remains to be        granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(b)          In this subsection—

‘relevant period’ means—

(i)           in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii)          in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I)           the current leave year, and

(II)          the leave year immediately preceding the current leave year,

or

iv)       in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) —

(I)           the current leave year, and

(II)          the 2 leave years immediately preceding the current leave year.”.

19.          Section 19 of the Organisation of Working Time Act 1997 provides three scenarios or methods for an employee’s entitlement to annual leave.   These are set out hereunder:-

(a)          4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b)          one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)         8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

Option (a) does not apply as the Complainant’s employment was terminated in the current leave year.

Option (b) would give the Complainant an entitlement to one-third of a working week for each of four months.   Pay for one-third of a working week is €163.33.   Accordingly pay in lieu for one-third of four working weeks amounts to €653.32.  

Option (c), which is subject to a maximum of 4 working weeks, based on the Complainant working 35 hours for each of 17 weeks (being 15 weeks January to March 2019 and one week April 2019) weeks days gives a total number of working hours of 595, 8% of which equals 47.60 hours at €14 per hour and pay in lieu of being €666.40 less an amount of €294 in respect of the 3 days taken leaving an amount of €372.40 due.  

Accordingly option (c) is the option which is the greater.

The Public Holiday Claim:

The Complainant is entitled to be paid for the Public Holiday of 5th May 2019.   One day’s day is €98.

The Minimum Notice Claim:

The Complainant is entitled to one week’s notice.   As she was only allowed work 2 days of the notice period she is entitled to pay in lieu for the other 3 days totalling an amount of €294 (€98 per day for each of 3 days).

Compensation in respect of the Annual Leave & Public Holiday Claims

The Adjudicator is invited to consider a measure of compensation over and above the amounts properly due to the Complainant in respect of these claims in circumstances whereby she, on 10th May 2019, wrote to the Respondent requesting that she paid for outstanding annual leave, Public Holidays and notice period and whereby the Respondent failed, refused or neglected to pay her necessitating her taking the within action to the WRC and incurring legal costs.

In this regard see s.27(3)(c) of the Act of 1997, set out hereunder

27(3)(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

The Respondent states that on the 26th April, 2019 he had a discussion with the Complainant about her employment terminating in a weeks’ time. He explained that he was restructuring the business and there was no need for her going forward. The complainant told him that she was looking for other work anyway. They parted on good terms, he thought. The complainant came into work on the Monday and her mood had changed. The atmosphere was frosty. He decided to let her go the next day but said that he would pay her the 3 days in lieu of notice. The respondent, during the complainant’s employment tried whenever he could to facilitate her requests. She was a good employee.

The respondent accepts that he did not pay the complainant the bank holiday that is claimed for in CA 28312 -006.

The respondent accepts that the complainant was not given a contract of employment as is claimed in CA 28312-002.

CA 28312 – 001 (Unfair Dismissal)

I am satisfied that the respondent dismissed the complainant in the absence of any procedures. Furthermore, she was not given any reason for the dismissal and was not afforded an opportunity to appeal that decisions. I do not accept the respondent’s evidence that he had a chat with the complainant about her dismissal prior to handing her a letter confirming her employment was being terminated.

The complainant did secure contract work almost immediately, however I note that her contract is for a fixed two month terms which gives her no security in relation to her future employment.

In all the circumstances I find that the complaint is well founded. I award the complainant €7,500.00

CA 28312 -002 (Terms)

The Respondent accepts that the complainant was not given a contract of employment. On that basis I find that the complaint is well founded. Pursuant to Section 7(2) (d) I award the complainant compensation in the amount of € 1,960.00

CA 28312 – 004 (Notice)

The complainant worked and was paid for two days of her Notice period. She has not been paid for the 3 days Wednesday to Friday. I find that the compliant is well founded. I award the complainant the sum of €294.00

CA 28312 – 005 (Organisation of working time)

I am satisfied based on the documentation submitted by the Respondent that the complainant has been paid for her holiday entitlements. That payment is set out in her payslip of the 03/05/2019. I do note that a portion of that payment was withheld in order to exert pressure on the complainant to sign a confidentiality clause. That should not have happened, and the Respondent should not engage in such practice in the future.

CA 28312 – 006 (Organisation of working time)

The respondent has accepted that the complainant has not been paid for her bank holiday Monday. On that basis I find that the claim is well founded. I award the complaint € 98.00

CA 28312 -002 The complaint is well founded. I award the complainant the sum of €1,960.00

CA 28312 – 004 The complaint is well founded. I award the complainant the sum of € 294.00

CA 28312 -005. The complaint fails.

CA 28312 -006 The complaint is well founded. I award the complainant the sum of € 98.00

The complaint is well founded. I award the complainant compensation in the amount of € 7,500.00