Complainant

Respondent

Anonymised Parties

A Sign Maker

A Van Conversion Service

Representatives

Self

Did not attend

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015

CA-00028739-001

29/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028739-002

29/05/2019

In accordance with Section 41 of the Workplace Relations Act, 2015 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.

The Complainant submitted his complaint to the Workplace Relations Commission on 29th May 2019.

A letter notifying the parties of the time, date and venue of the adjudication hearing was issued on 1st August 2019. The letter outlined in detail the procedure in respect of a postponement:

“It should be noted that a postponement of the hearing will only be granted in exceptional circumstances and for substantial reasons. Applications for postponement should be made in writing to the Commission’s Adjudication Services at the earliest possible date (by email to pru@workplacerelations.ie will suffice) setting out the full reasons for the application and must be accompanied by the relevant supporting documentation.”

The telephone number of the Case Officer was also provided.

The Respondent did not apply for a postponement and did not indicate any difficulties attending the hearing.

A named official in the WRC Mediation Service received an email from the Respondent at her individual work email address on 11th September 2019, the day before the hearing was scheduled to take place. The Respondent stated that he “completely forgot to email you until my colleague contacted me this minute. Im currently on annual leave and wont be back till 17th September.” The Respondent was clearly made aware by way of the letter of 1st August 2019 that any correspondence in relation to a postponement should be addressed to pru@workplacerelations.ie. Neither the named official nor the Mediation Service of the WRC was dealing with the matter at this juncture. The named official forwarded the email to the Adjudication Services of the WRC.

On the receipt of the email on the morning of 12th September 2019, the Adjudication Services of the WRC informed the Respondent by return email (at 10.07am) that he was made aware of the requirements in respect of a postponement application by way of the letter scheduling the hearing dated 1st August 2019. In the email the Respondent was informed that it is up to the party requesting a postponement to submit any evidence in support of their request. It was also brought to the Respondent’s attention that the Adjudication Officer will consider the explanation offered and decide whether or not grant the postponement and re-schedule the hearing.

The Respondent replied at 10.26am that he “had his accountant dealing with the matter on [his] behalf” and asking what evidence is required. The Respondent then (at 10.28am) forwarded a copy of an email sent to the Complainant on 16th May 2019 in respect of the outstanding annual leave due to the Complainant. The Respondent did not submit any relevant documentation in support of the application for a postponement.

Neither the Respondent nor his accountant attended the hearing. The Complainant was in attendance at the hearing venue for the scheduled starting time at 11.00am. In the circumstances, I decided to proceed with the hearing as I was satisfied that the Respondent was fully aware that the request for a postponement had not been granted at any stage prior to the hearing. The Respondent was notified of same by email at 11.00am. However, the Respondent was informed again that should he wish to do so, he can submit the reasons for his non-attendance by 19th September 2019. The Adjudication Officer would then consider his request and decide whether or not the case should be re-heard.

The Respondent replied noting that “To be truthfully honest with you, I had started to draft an email but didn’t send it. It was by pure chance that I was informed by a member of my staff that [the Complainant] dropped a vehicle…” However, no further explanation of his non-attendance was put forward.

A letter was issued to the Respondent by the Adjudication Services on 13th September 2019 once again explaining the requirements in respect of a postponement application. The Respondent was informed, again, that it is up to the party requesting a postponement to submit any evidence in support of their request for consideration by the Adjudication Officer. The Respondent was requested again to forward the reasons for the non-attendance and any relevant supporting documentation as soon as possible but by the 19th September 2019, at the latest. There has been no further communication from the Respondent.

Having considered the correspondence from the Respondent, I am not satisfied that the Respondent put forward compelling reasons for his non-attendance. The Respondent was on notice of the date of the hearing. He confirmed that he had his accountant dealing with the matter but neither attended the hearing. In the circumstances, I find the Respondent’s non-attendance at the adjudication hearing without any acceptable explanation to be unreasonable.

The Complainant worked for the Respondent from 22nd October 2018 to 7th May 2019. He worked 24 hours a week and was paid €10.50 gross per hour.

The Complainant submits that he commenced his employment with the Respondent on 22nd October 2018 as part-time worker on a permanent contract with agreement of three days per week (24 hours).

The Complainant claims that he did not receive his statutory minimum notice.

He was dismissed on 7th May 2019 at 7.02am by the following text message:

“Hi [Complainant], I have no more work for you. The sprinter bulkhead has to be taken out because it’s not square. And all the carpet that was wasted on the mini bus.”

The Complainant submits that he was shocked on reading this message as he had daily contact with the Respondent and there was never any indication of his intention of letting the Complainant go. The Complainant claims that he never received any verbal or written warnings, he was always punctual and worked to a high standard.

The Complainant provided his view in respect of the two jobs mentioned by the Respondent. The Complainant argues that the Respondent’s claims of misconduct, carelessness and any other accusations are fabricated in order to avoid any payments.

The Complainant submits that, without any explanation his wages were not paid and after his enquiry with the Respondent’s accountant on 14th May 2019, he was told that the Respondent has altered his attendance record crossing out all work hours for week 29th April - 3rd May 2019 and that any outstanding payments were paid in cash by the Respondent. The Complainant noted that his wages for this week were paid eventually on 14th May 2019.

The Complainant feels that after a string of phone calls, emails and text messages, an official complaint would be the only solution to resolve this situation.

The Complainant exhibited copies of his correspondence with the Respondent and copies of payslips dated 16th and 23rd May 2019.

There was no appearance by or on behalf of the Respondent.

The Complainant submits that he commenced his employment with the Respondent on 22nd October 2018. He was dismissed by text on 7th May 2019 with immediate effect. It is regrettable that the Respondent did not attend the adjudication hearing.

The Minimum Notice and terms of Employment Act, 1973 provides as follows:

“4. Minimum period of notice

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,…”

The evidence before me confirms that the Respondent dismissed the Complainant with immediate effect and did so without adhering to its obligations under the Minimum Notice and Terms of Employment Act, 1973 which under Section 4(2)(a) requires one week notice if the employee has been in the continuous service of his employer for more than thirteen weeks but less than two years.

Based on the uncontested evidence of the Complainant, I declare this complaint to be well founded. In accordance with Section 4(2)(a) of the Minimum Notice and Terms of Employment Act, 1973 I find that the Complainant was entitled to one week’s notice. I direct that the Respondent pay the Complainant compensation of €252 gross amounting to one week’s pay.

The Complainant submits that the Respondent refused to pay him his accrued annual leave on cessation of employment declaring it as compensation for alleged damage caused. The Complainant argues that he is not aware of any wrongdoing on his part. During his employment he never received any form of warning or caution for misconduct. The Complainant strongly rejects any accusations of misconduct or carelessness. He believes that these are fabricated in order to deprive him of payments due to him. The Complainant submits that in all his career, both in employment and self-employment, he had upheld the highest standards, had an excellent work ethic and had never been accused by either a customer or an employer of carelessness, misconduct or poor workmanship of any sort.

The Complainant submits that he spoke with the Respondent’s accountant and was informed that he is owed 4 days of annual leave, but the Respondent did not authorise the payment.

The Complainant exhibited copies of email correspondence dated 9th May and 16th May 2019 with the Respondent confirming that the Respondent owes him annual leave.

There was no appearance by or on behalf of the Respondent.

The Complainant argues that the Respondent’s accountant confirmed that he is owed 4 days annual leave. The email correspondence between the parties, in particular the email of 16th May 2019 confirms that the Complainant is due accrued annual leave. The Respondent, however, made a decision to offset the outstanding annual leave against alleged expense occurred due to the Complainant’s negligence and carelessness.

Section 23 of the Organisation of Working Time Act, 1997 stipulates that:

“23. Compensation on cesser of employment

(1)

(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.”

The Respondent confirmed in the email of 16th May 2019 that he is aware that the Complainant is due annual leave, albeit the email does not specify the amount of leave due. In the absence of any evidence on the Respondent’s part to contradict the Complainant’s assertion, I find that the Complainant has an entitlement to four days of annual leave accrued and not taken.

Based on the uncontested evidence of the Complainant, I declare this complaint to be well founded. I direct the Respondent to pay the Complainant €336.00 for the economic loss in respect of the annual leave. In addition, I direct the Respondent to pay the Complainant an additional €300 in compensation for breaches of his rights under this Act.

Minimum notice- annual leave