Complainant

Respondent

Anonymised Parties

A Chef

A Bar

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-00015069-001

17/10/2017

The complainant was engaged as a Chef until his employment ceased on 26th May 2017. He claims he was unfairly dismissed.

The complainant was in a serious car accident on 8th March 2017 after which he was very unwell with an infection.

Through his girlfriend he asked the respondent to provide some documentation to social welfare to secure a medical card. The respondent’s letter on 26th May 2017 referred to him as “previously employed as a chef”. He did not contact the respondent at that time as he was unwell but was surprised at the reference to “previously employed” He only became aware that his employment was terminated on 21st August 2017 when he was advised by the manager Mr A that there were no more hours.

He advised that he was deemed fit to return to work at the end of August 2017.

Following the hearing he provided letters confirming he had been unsuccessful when he went looking for other employment. He also provided copies of illness benefit which he had received and which detailed that he had been in receipt of illness benefit up to April 2018.

The respondent outlined that after the complainant’s accident they were left with no alternative but to find another chef as it was a busy time. The complainant contacted them through his girlfriend as he wanted to get a medical card and needed letters signed. It was confirmed that all conversations were through his girlfriend and although they dated the P45 26th May 2017, they omitted to send this P45 until August 2017.

It was confirmed that there was no contract of employment but that he had been given a handbook but the respondent was unable to provide evidence of same.

The respondent outlined that it was their understanding that the complainant was unfit to return to work and that they never received a letter stating that he was fit to return to work. They detailed that he never provided them with sick certs. After the hearing and following receipt of the complainant’s illness benefit details, the respondent put forward that the complainant remained unfit for work.

Pursuant to Section 6 of the Unfair Dismissals Act 1997 as amended, the dismissal of an employee shall be deemed for the purposes of this Act to be an unfair dismissal unless, having regard to all the circumstances, there are substantial grounds justifying the dismissal. The burden of proof is firmly on the Respondent.

The complainant had a serious accident and was out of work for some time. While there seemed to be some confusion around whether or not he submitted the sick certs at the time, the fact remains that there was no direct contact between the parties following the accident. The respondent sent out a P45 without engaging in any way with the complainant, in breach of well established procedures. The requirement for fair procedures has been reinforced in Gallagher v Revenue Commissioners [1995] E.L.R. 108 (No.2) [1995] and I find that thecomplainant wasdismissed by the respondent without fair procedurefollowed and I find that this dismissal was unfair.

With regard to redress, I note that the complainant seemed unclear at times during his evidence as to whether he was fit for work or not and provided some evidence that he had sought alternative employment. However, following the hearing he forwarded details of illness benefit payments which he had received which deemed him unfit for work.

I note that his weekly pay based on his P45 was €225.50 and I find that as the complainant has been deemed unfit for work, therefore, no loss has accrued under the Act. The maximum compensation payable in circumstances where no loss has accrued is four weeks remuneration.

I find that the dismissal was an unfair dismissal and I award the complainant 4 weeks gross pay (€902) in compensation.

Unfair dismissal, unfit for work,