ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008795
Parties:
| Complainant | Respondent |
Anonymised Parties | A Labourer | A Construction Company |
Representatives | FH O'Reilly & Co Solicitors |
|
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-00011379-001 | 12/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011379-002 | 12/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00011379-003 | 12/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00011379-004 | 12/05/2017 |
Date of Adjudication Hearing: 14/02/2019
Workplace Relations Commission Adjudication Officer: Orla Jones
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969 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:
The complainant has submitted claims against the respondent under Section 8 of the Unfair Dismissals Act, 1977, section 27 of the Organisation of Working Time Act, 1997, Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and section 13 of the Industrial Relations Act, 1969 . These claims were submitted on the 12th of May 2017 and thus the cognisable period for the complaint’s dates from 13th of November 2016 to 12th of May 2017. I proceeded to a hearing of these matters on the 14th of February 2019. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00011379-001 | 12/05/2017 |
Summary of Complainant’s Case:
The Complainant submits that he was unfairly dismissed by the respondent on the 15th of November 2016. |
Summary of Respondent’s Case:
The respondent submits that the complainant was not dismissed but retired. |
Findings and Conclusions:
The Unfair Dismissal Act, 1997 stipulates that: Section 6(1)” 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 complainant has submitted that he was unfairly dismissed by the respondent after he advised the respondent that he had severe back pain and had to undergo surgery. The respondent advised the hearing that the complainant retired on 15th of November and requested his p45 via his nephew G who was also the respondent’s supervisor. The respondent told the hearing that the complainant had retired from their employment a couple of years previously but had later sought to return to work as he was bored. The respondent told the hearing that the complainant’s nephew G was the complainant’s supervisor during his employment and that G had asked if the complainant could return to work. The respondent told the hearing that he advised G that the complainant could come back to work if G was happy that he had work for him and could work whenever G had work available for him to do. The respondent stated that the complainant was a gentleman to work with and so he had no problem when the complainant requested to return to work. The respondent added that he would never have let the complainant go as he had great time for him and liked him. The complainant returned to work with the respondent for about two years. The respondent told the hearing that the complainants nephew G informed him in November 2016 that the complainant had decided to leave work again and that G had put a note on the worksheet for the week ending 15th of November 2016 indicating that the complainant had retired from work and that his last day on site was the 10th of November 2016. The complainant’s nephew G gave evidence at the hearing and stated that his uncle, the complainant, had told him he wished to finish work. The complainant told the hearing that he finished work because he had a bad pain in his back. He told the hearing the hearing that he went to his GP and was admitted to hospital for surgery on his back. The complainant told the hearing that he was not fit to work again due to his age as he had turned 70 in December he stated that he could not work again as he can barely stand or walk let alone work. The complainant stated that he did not wish or intend to work again and that he wasn’t physically able to work. I am satisfied from the totality of the evidence adduced that the complainant chose to leave the respondents employment and that there was no dismissal. Accordingly, I am satisfied that the claim of unfair dismissal is not well founded, and the claim fails. |
Decision:
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.
Accordingly, I am satisfied that the claim of unfair dismissal is not well founded, and the claim fails. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011379-002 | 12/05/2017 |
Summary of Complainant’s Case:
The complainant submits that He does not get breaks. |
Summary of Respondent’s Case:
The respondent submits that The complainants last day on site was the 10th of November 2016 and the complaint was submitted on 12th of May 2017, The respondent provided copies of the complainant’s time sheets with hours worked including breaks. |
Findings and Conclusions:
The respondent provided the hearing with copies of the complainant’s time sheets with hours worked and break times. It emerged at the hearing that the complainants last day on site was the 10th of November 2016 and the complaint was submitted on 12th of May 2017. Thus, the complaint was submitted outside of the six months’ time provided for in the legislation. I am satisfied that this claim was submitted outside of the six-month time limit and accordingly the claim fails. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I am satisfied that this claim was submitted outside of the six-month time limit and accordingly the claim fails. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00011379-003 | 12/05/2017 |
Summary of Complainant’s Case:
The complainant submits that He did not receive his statutory notice upon termination of his employment |
Summary of Respondent’s Case:
The respondent submits that The complainant’s employment was not terminated, the complainant had retired two years previously and had sought to come back to work as he was bored, The complainant returned to work and was given work by his nephew G, also the respondents supervisor whenever work was available, The complainant decided in November 2016 that he no longer wished to work and did not return to work. |
Findings and Conclusions:
The respondent advised the hearing that the complainant’s employment was not terminated, that the complainant had retired two years previously and had following his retirement sought to come back to work as he was bored at home. The respondent went on to state that the complainant returned to work and was given work by his nephew G who was the respondents supervisor whenever work was available for him. The complainant decided in November 2016 that he no longer wished to work as he was suffering from severe back pain and he did not return to work. The complainant told the hearing that he finished work because he had a bad pain in his back. He told the hearing the hearing that he went to his GP and was admitted to hospital for surgery on his back. The complainant told the hearing that he was not fit to work again due to his age as he had turned 70 in December he stated that he could not work again as he can barely stand or walk let alone work. The complainant stated that he did not wish or intend to work again and that he wasn’t physically able to work. The respondent advised the hearing the complainant left without giving notice and that he had been paid the wages he was owed at the end of that week. The respondent provided copies of the complainant’s payslips to the hearing. The complainant was also paid his outstanding holiday pay the following week. This was evidenced in the payslips. The respondent advised the hearing that they had noticed in preparing the file for hearing that he had in fact overpaid the complainant by €595. I am satisfied from the totality of the evidence adduced that the complainant was not dismissed without notice and that that this claim is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I am satisfied form the totality of the evidence adduced that this claim is not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00011379-004 | 12/05/2017 |
Findings and Conclusions:
The Industrial Relations claim was not pursued at the hearing. Accordingly, I do not recommend in favour of the worker in respect of this dispute. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Accordingly, I do not recommend in favour of the worker in respect of this dispute. |
Dated: 04/06/2019
Workplace Relations Commission Adjudication Officer: Orla Jones
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