ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013600

Parties:

Complaints:

Date of Adjudication Hearing: 07/01/2019

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The Complainant referred the aforesaid complaints to the Workplace Relations Commission (hereinafter WRC) on 5th March 2018. They were first listed for hearing before another Adjudication Officer on 25th July 2018 but were adjourned at the request of the Respondent to accommodate pre-booked travel abroad. They were rescheduled for hearing on 17th September 2018 and further adjourned at the request of the Complainant to accommodate a foreign holiday he had won. These complaints were further rescheduled for hearing on 12th November 2018 and at that stage, were referred to me by the Director General in accordance with Section 41 of the Workplace Relations Act 2015, Section 39 of the Redundancy Payments Act 1967 and Section 8 of the Unfair Dismissals Acts 1977-2015. I inquired into these complaints and gave the Parties an opportunity to be heard by me and to present any relevant evidence. On 12th November 2018, both Parties were in attendance. The Complainant was represented by Mr Marius Marosan of Romanians in Ireland and the Respondent was represented by Peninsula with a number of witnesses in attendance on its behalf. On that date, the Respondent put all of the complaints in issue in written submissions and raised a preliminary objection to the jurisdiction of the WRC to hear the complaint of unfair dismissal. Whilst it was accepted that the Complainant had been employed as a Pizza Chef by the Respondent between 23rd July 2013 and 12th September 2017, it was contended that he did not have the requisite continuous service to bring a complaint of unfair dismissal. It was further contended that he had been in employment elsewhere at the material time. Additionally, no particularisation of the complaints had been provided to enable the Respondent to fairly meet them. The Complainant had also sought to pursue conflicting complaints of redundancy and unfair dismissal and when asked to elect, indicated that he was opting for the latter. This matter was adjourned for the purposes of enabling the Complainant to particularise his complaints in writing by 3rd December 2018 and provide documentation including his PRSI history for the relevant period and mitigation vouching. The rescheduled hearing was specially fixed for a full day on 7th January 2019, being confirmed as a date that suited both Parties and letters dated 21st November 2018 were issued to the Parties confirming that hearing date and details. On 21st December 2018, the Complainant’s Representative applied for a further adjournment on his behalf in circumstances where his girlfriend had apparently surprised him with a foreign holiday from 4th until 11th January 2019 inclusive of the hearing date. This request was refused on 27th December 2018 and communicated immediately to the Complainant’s Representative.

On the hearing date of 7th January 2019, the Complainant’s Representative attended on the Complainant’s behalf and confirmed that he had gone on the holiday and would not be in attendance. He renewed the application for an adjournment and alternatively requested that the complaints be considered in the Complainant’s absence. I reconsidered the application and declined the request for an adjournment in circumstances where the Respondent was again in attendance with a number of witnesses and would be unfairly inconvenienced by another hearing date, the Complainant had not particularised his complaints or provided his Representative with instructions to enable him to do so as required by 3rd December 2018 or at all, the requested documentation had not been furnished and a full day had been set aside for the hearing. I then proceeded to consider whether any of these complaints could be heard in the absence of oral evidence from the Complainant and to adjudicate accordingly.

Summary of Complainant’s Case:

Briefly the Complainant submitted a complaint against the Respondent under the Terms of Employment (Information) Act 1994 that he had not received a statement in writing of the terms and conditions of his employment, a complaint under the Redundancy Payments Act 1967 that he had not been paid his statutory redundancy and a complaint under the Unfair Dismissals Act 1977 that he had been unfairly dismissed. He also made claims for pay in lieu of minimum notice under the Payment of Wages Act 1991 and for outstanding annual leave and public holiday pay under the Organisation of Working Time Act 1997. The Complainant had not particularised his complaints as directed or provided his Representative with instructions to enable him to do so. Furthermore, the requested documentation had not been furnished as directed and there was no explanation for its absence. An exchange of emails between the Parties was furnished which did not further these complaints. In circumstances where the Complainant did not attend the hearing, no direct oral evidence was proffered on his behalf.

Summary of Respondent’s Case:

The Respondent’s Representative confirmed its position that it was putting all of the complaints in issue as outlined in written submissions and supported with working time records, other documentation and with witnesses in attendance to give direct oral evidence at the hearing. The objection to the WRC having jurisdiction to hear the complaint of unfair dismissal on the basis that the Complainant did not have the requisite continuous service was also being maintained. In particular, it was contended that the Complainant was “not normally expected to work” and/or had not worked for the Respondent for the requisite minimum of 18 hours per week for the last twelve months of his employment and hence did not have continuous service as interpreted by Section 2(4) of the Unfair Dismissals Act 1977 and the First Schedule of the Minimum Notice and Terms of Employment Act 1973. Records produced confirmed that the Complainant had only worked 18 hours or more on one occasion during that period. In the alternative, it was contended that his role had not been made redundant and/or he did not have the requisite continuous service. In relation to the complaint that he had not received a statement in writing of the terms and conditions of his employment, it was contended that he had been provided with a contract of employment as furnished but had refused to sign it. In relation to his claim for pay in lieu of minimum notice, he had not worked for the minimum of 18 hours per week for the reference period as required by Section 3(1) of the Minimum Notice and Terms of Employment Act 1973. In relation to his claim for unpaid annual leave, it was contended that he had been paid in excess of any outstanding amount due. Finally, in relation to his complaint that he had not received his public holiday entitlement, it was contended that he had not worked the requisite 40 hours within the five-week period preceding any of the public holidays falling within the reference period prior to the referral of this complaint. In all the premises, the Respondent sought to have all of these complaints dismissed.

Decision:

Section 41 of the Workplace Relations Act 2015, Section 39 of the Redundancy Payments Act 1967 and Section 8 of the Unfair Dismissals Acts 1977-2015 require that I make a decision in relation to these complaints. Firstly, I find the Complainant’s non-attendance at a specially fixed hearing to pursue his complaints unreasonable for the reasons set out above and by opting to go on holiday instead, it appears that he was not particularly concerned about pursuing them. Secondly, I am satisfied that as the burden of proof rests with the Complainant in relation to all of the complaints (other than the complaint of unfair dismissal) and the Respondent has put the factual basis for same fully in issue, his direct oral (viva voce) evidence is required and the Respondent is also entitled to test its veracity. On the same basis, his oral evidence is also required to determine the preliminary objection to the WRC’s jurisdiction to hear his complaint of unfair dismissal. Accordingly, I find these complaints not to be well-founded in the absence of any supporting oral evidence and dismiss them all, namely, CA-00017738-001, CA-00017738-002, CA-00017738-003, CA-00017738-004, CA-00017738-005 and CA-00017738-006.

Dated:   25 March 2019

Workplace Relations Commission Adjudication Officer: Aideen Collard