ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014150

Parties:

Complaint(s):

Date of Adjudication Hearing: 10/08/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant attended the hearing but the Respondent did not.

The Adjudicator confirms that the Respondent was notified correctly.

The Complainant stated that he started on the 9th of March 2015 and that he received no notice of his dismissal.

The Complainant states that he finished work on the 29th of January 2018 due to being told he was no longer required.

The Complainant states that he got no Terms and Conditions but he did ask for them on many occasions.

Summary of Complainant’s Case:

The Complainant states that he took on extra tasks when the owner was unwell and up to his funeral.

On the 5th of January 2018 one of the owner’s family members said ‘what are you doing here – there are more important things, goodbye’ – the complainant states that he felt uneasy.

The Complainant states that he went home to keep out of the family’s way during their time of grief. The Park was not open at the time.

The Complainant was preparing for the park opening in March and was organising business generation during this time.

The Complainant states that he felt he was being frozen out so he called the Respondents accountants as he had some takings during the Christmas period and he had documents also that he gave to them.

The Complainant stated that he was talking to a supplier who he paid €3,000. The Complainant spoke to the supplier about changes and the supplier returned the €3,000 cheque and he lodged it into the company account then.

The Complainant states that on this day he was looking for a VAT certificate in support of the application for a grant as well as sanding furniture.

The Complainant states he got a call from a recruitment agency regarding a job advertised in the park. The recruiter was looking for further information on the role. The Complainant then realised it was his role and that he had been unfairly dismissed.

The Complainant was not happy about this and he also saw the job advertised in the local paper.

The Complainant then applied for the role, although he had never resigned. He received acknowledgement in March to state that he was unsuccessful. The Complainant states that he tried to get explanations of what happened and he didn’t get it.

The Complainant states that someone else is now doing his job.

The Complainant stated that he used to work 5 – 10 hours in the quiet season until March from October. From April to September he would do maintenance work which consisted 10 – 15 hours during this period of time. The Complainant put in timesheets and was paid in cash. The Complainant received no P45 or holidays when he left.

The Complainant did not get any social welfare as a result so he is now wondering was the Respondent paying his taxes. The Complainant contacted the accountant but he never came back to him about this. The Accountant called Intero and Intero got in touch with him to meet about this based on the accountant’s queries.

The Complainant has been looking for work since and has only got a job independently cleaning last week but has been trying to get work since.

Summary of Respondent’s Case:

The Respondent was not in attendance.

Findings and Conclusions:

Section 6 (1) of the Unfair Dismissals Act 1977 states that:

“Subject to the provisions of this section, 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 were substantial grounds justifying the dismissal.”

The guiding principles in Looney & Co. Ltd –v- Looney state:

“it is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at the time would have done and decided and to set this up as a standard against which the employer’s actions and decision be judged.”

The Adjudicator finds that the claim succeeds as no processes, justification or paper trail were provided by the Respondent.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 states that

“An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the terms of the employee's employment”

The Adjudicator finds that this claim succeeds as the Complainant did not receive details of his terms and was disadvantaged as a result.

Decision:

Section 7 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.

Unfair Dismissals

The Award for Unfair Dismissal is:

• 10 hours from January – March: Totals to €1,200
• 15 hours from April – August: Totals to €3,000
• The Complainant mitigated his loss to find another role which is cleaning but he will have to build a client base. Considering this I award him €1,000 regarding same.

Total: €5200

In relation to the terms and conditions claim in line with Section 3 (1) of the Terms of Employment (Information) Act, I make the following decision:

Terms and Conditions of Employment

The Complainant states that he did not receive a statement in writing regarding his terms and conditions of employment.

• The Award for is 4 weeks’ pay which amounts to €800 in this case.

Dated:   18/01/19

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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