ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017883
Parties:
| Complainant | Respondent |
Anonymised Parties | Employee | Construction Company |
Representatives | Kiwana Ennis, B.L. instructed by Sonya Lanigan John Lanigan & Nolan Solicitors | Self represented |
Complaints:
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-00023002-001 | 02/11/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00023002-002 | 02/11/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00023002-004 | 02/11/2018 |
Date of Adjudication Hearing: 11/04/2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the UnfairDismissals Acts, 1977 – 2015, Section 7 of the Terms of Employment (Information) Act 1994 and Section 11 of the Minimum Notice & Terms of Employment Act 1973, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed as a Carpenter and General Operative by the Respondent. He contends that he signed a resignation letter without seeing or knowing what was the content and that he never received written terms of employment and he did not receive minimum notice. |
Summary of Complainant’s Case:
The Complainant worked for the Respondent from 1st November 2014 to 16th May 2018. He was employed doing carpentry and general construction work. He received €650 net per week and he worked in or around 40 hours per week. He also looked in from time to time on the Respondent’s elderly mother especially when the Respondent was not around. The employment was largely without negative incident until 16th May 2018 when the Complainant approached the Respondent about payment for overtime for around 8 hours he had worked. The Respondent then subjected the Complainant to a humiliating telephone conference call with the Respondent, the Complainant and on the telephone line, a Mr S. The Respondent and Mr S proceeded to tell the Complainant that his work was sub standard and he was laughed at during the call. Following this, the Respondent asked to meet the Complainant in a car park where he told him “we need a break” and he handed him his P45 and a piece of paper he told him to sign. The Complainant subsequently learned this paper said that he resigned his job. The Complainant had no intention to resign his position and in the circumstances contends he was unfairly dismissed. The Complainant also contends that he did not receive written terms of employment. He also contends that he was entitled to minimum notice. |
Summary of Respondent’s Case:
The Respondent stated that the Complainant told him he was getting a job in Cork. The Respondent further stated that the Complainant left the employment without notice and he included his holiday pay in his last wages. The Respondent denied all the evidence submitted by the Complainant. He denied there was a telephone conference call. He stated that he had a written contract of employment for the Complainant, that he told the Complainant that it was in the Accountant’s office and if the Complainant hadn’t picked it up, that was his problem. |
Findings and Conclusions:
CA-00023002-001 Unfair Dismissals Act 1977
I accept the Complainant’s evidence in its totality. I accept the evidence that he asked the Respondent for overtime pay and the response from the Respondent was (a) a phone conversation with Mr S telling the Complainant that his work was not up scratch and (b) a subsequent rendezvous where the Complainant was told “we need a break” and was handed his P45 and a resignation letter which he was told to sign. The fact that a grown adult would sign such a document without knowing what he was signing is hard to credit. Nonetheless, it is clear that the Complainant had no intention of resigning and he was somehow coerced into signing the document. Even if he had resigned on the spot and without notice, case law exists to highlight that employers are obliged to allow a “cooling off” period (Sothern v Frank Charlesly & Co [1981] IRLR 278, Barclay v City of Glasgow District Council [1983] IRLR 313). In this instant case, the Respondent himself acted in haste to rid himself of what he perceived as a troublesome employee without any due process. In these circumstances, I find that the Complainant was unfairly dismissed and he succeeds in his claim. I find that in the situation where trust has obviously irrevocably broken down between the parties, re-instatement or re-engagement are not appropriate remedies. The appropriate remedy therefore in accordance with Section 7 (1) (c) of the Act is compensation. I require the Respondent to pay to the Complainant the sum of €4,000 compensation.
CA-00023002-002 Terms of Employment (Information) Act 1994
Section 3 of the Act is quite clear in that it states that an employer shall give or cause to give an employee a written statement of term of employment within two months of commencement of the employment. In this case, this was not done. I find the Complainant’s complaint to be well founded and in accordance with Section 7 (2) (d) of the Act, I require the Respondent to pay to the Complainant the sum of €1,300 compensation.
CA-00023002-003 Minimum Notice and Terms of Employment Act 1973
Section 4 (2) (b) of this Act decrees that an employee with continuous service for two years or more, but less than five years is entitled to two weeks’ notice. I find the Complainant’s complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €1,300.
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Decision:
CA-00023002-001 Unfair Dismissals Act 1977
I have decided that this complaint is well founded and I require the Respondent to pay to the Complainant the sum of €4,000 compensation.
CA-00023002-002 Terms of Employment (Information) Act 1994
I have decided that this complaint is well founded and I require the Respondent to pay to the Complainant the sum of €1,300 compensation.
CA-00023002-003 Minimum Notice and Terms of Employment Act 1973
I have decided that this complaint is well founded and I require the Respondent to pay to the Complainant the sum of €1,300.
Dated: 29th May 2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham