ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00013927
Parties:
| Complainant | Respondent |
Anonymised Parties | A Funeral Home Embalmer/Administrator | A Funeral Home |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00018276-001 | 04/04/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00018276-002 | 04/04/2018 |
Date of Adjudication Hearing: 09/01/2019
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following 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).
Background:
This is a constructive dismissal case in which the Complainant alleges that he left his employment with the Respondent due to changes made to his contract of employment that he found unacceptable. The complaint was heard on 8 November 2018. On that date the Complainant applied for an adjournment in order to allow him to consider and to prepare a response to a written submission that had been filed by the Respondent on the day of the hearing. This was acceded to by the Adjudicator as the Complainant was not represented and he felt that he would be unfairly prejudiced if the matter had proceeded without him having an opportunity to seek advice in relation to the defence filed by the Respondent. The Complainant undertook to file reply submissions within 4 weeks, that is by 6 December 2018. The matter was re listed on 9 January 2019 on which occasion there was no appearance by the Complainant. |
Summary of Complainant’s Case:
The Complainant outlined the “four corners” of his case on the first hearing day and thereafter was given liberty to file written submission and was directed to prepare to give evidence on the resumed date for hearing. On the first hearing day, he described that he had worked for the Respondent for ten years as an embalmer/ administrator/ human resources manager. In September 2017 his work conditions had changed when another worker had been brought into the business, when the roster was changed. On the day before he left, he had an argument with the Respondent over holidays that he was owed. He accepted that he did not raise a formal grievance with his employer prior to his departure but claims that the Respondent knew of the tensions within the workplace having been the person with whom he had the argument prior to this departure. The Complainant did not receive terms and conditions of employment |
Summary of Respondent’s Case:
Preliminary point The two complaints are statute barred being brought outside 6 months since the alleged breaches Substantive Defence In response to the Terms and Conditions of Employment the Complainant was the person who administered the HR duties of the business. If he did not have a contract, that was his responsibility to organise that. He had organised contracts for all the other employees. In relation to the constructive dismissal case, it is precondition to any constructive dismissal case that the Complainant demonstrate that prior to leaving that he put the Respondent on notice of what work place conditions he regarded as unacceptable. The Complainant did not do this, but rather left in a fit of pique on the day following an argument over holidays. In such circumstances, the Respondent could not have known that the Complainant regarded this argument as an event that would terminate his employment. The Respondent contends that the Complainant resigned voluntarily should not succeed under the unfair dismissals legislation.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.
At the hearing on 9 November 2018, the Complainant’s application for an adjournment was acceded to as it was felt that the Complaint’s position was prejudiced by a late filing of submissions by the Respondent. The time was to allow the Complainant seek advice in order to file submissions in support of his complaints. A time line of 4 weeks was agreed for the Complainant to file his submissions. No submissions were received by the WRC either within that time line or since. On the second hearing day, on 9 January 2019 the Complainant, having been put on notice of the resumed hearing, did not appear. No application for an adjournment had been received by or on behalf of the Complainant and in those circumstances I instructed the Respondent that the hearing could not proceed in the absence of the Complainant and that investigations would be done to ascertain if there was any valid reason as to why the Complainant did not appear on the resumption hearing date. Following the hearing I did such investigations and found that no such explanations or reasons were present. I therefore proceeded to determine the matter on the basis of the evidence that was put before me on the first day. I find that due to insufficient evidence on the part of the Complainant I am unable to find that either complaint is well founded. The onus of proof is on the Complainant to set out the facts and to prove his complaint is valid. This has not occurred. Therefore, I find neither of the two complaints (CA-00018276-001 and CA-00018276-002) to be well founded and each complaint fails. |
Dated: 21/01/19
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
Constructive dismissal – failure to appear at Adjudication Hearing |