ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018444
Parties:
| Complainant | Respondent |
Anonymised Parties | Restaurant Supervisor | Restaurant |
Representatives | Tom O’Donnell, BL. | Not represented |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00024173-001 | 17/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00024174-001 | 17/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00023668-001 | 30/11/2018 |
Date of Adjudication Hearing: 31/07/2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 27 of the Organisation of Working Time Act 1997, Section 6 of the Payment of Wages Act 1991 andSection 8 of the Unfair Dismissals Acts, 1977 – 2015following 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 contends that she was unfairly dismissed, that she did not receive her statutory holiday pay and minimum notice. The Respondent did not attend the hearing. A communication from the Respondent received prior to the hearing stated that the company was in liquidation. |
Summary of Complainant’s Case:
CA-00023668-001 Unfair Dismissal The Complainant, who was a Supervisor, was dismissed from her employment on 18th July 2018, following an investigation by the Respondent into the following allegations: (a) Non-attendance at work and not reporting this to management (b) Paying staff to cover the non-attendance (c) Cash payments to employees. It is submitted that the summary dismissal of the Complainant amounted to unfair dismissal in circumstances where the sanction imposed was disproportionate and the Respondent failed to apply the band of reasonableness responses test which a reasonable employer should consider. Further, following a disciplinary hearing on 12th June 2018 the Complainant was brought to a meeting on 18th July 2018 where she was presented with a letter of termination. The letter failed to address the notice issue and failed to include any details or reference of the Complainant’s right of appeal. This is in direct contravention of the Respondent’s own handbook which provides at para 26.6 the imperative to provide information on the notice issue and right of appeal. Prior to her termination, the Complainant brought a grievance against the Area Manager in relation to abusive, threatening, intimidating and aggressive behaviour. It is submitted that the Respondent was aware of the work-related stress suffered by the Complainant as a result of the Manager’s actions and that the reason offered for termination was a sham. It is also submitted that fair procedures were not followed , in that the ‘interview’ of the Complainant took place over a two hour period which was a humiliating and bullying session rather than an interview. She was not offered the right to representation or be accompanied and this is also in contravention of para 26.1 of the Employee Handbook. CA-00024173-001 Organisation of Working Time Act 1997 (holiday pay) The Complainant contends that she was owed a total of 59 days annual leave and 9 public holidays accrued at the time of her dismissal which amounts to the total monetary value of €7,058 CA-00024174-001 Payment of Wages Act 1991 The Complainant contends that she is entitlement to payment of 2 weeks pay in lieu of minimum notice. |
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Summary of Respondent’s Case:
The Respondent was notified of the date, time and venue of the hearing but did not attend or send a representative. |
Findings and Conclusions:
I note the Respondent did not attend the hearing and by way of explanation communicated with the WRC to the effect that the company was now in liquidation. I base my findings and conclusions on the uncontested evidence of the Complainant. |
CA-00023668-001 Unfair Dismissal
The Complainant gave cogent evidence of the manner in which she was treated during the last 6 months of her employment. I note that she was subjected to disciplinary meetings which in the first instance concerned the poor financial performance and then centred around allegations from the Respondent that the Complainant had provided the staff with cash payments and that she had been absent from work on two occasions without agreement of the employer. I note the complete lack of fair procedures and due process on the Respondent’s part, in that the Complainant was not given any statements or written evidence to support the allegations made against her, she was not given the right of representation and she was dismissed without recourse to appeal. The Respondent did not therefore act within the band of reasonableness which is required of employers to demonstrate that they have acted appropriately in a case of dismissal of an employee. In the circumstances I find that the Complainant was unfairly dismissed. I find compensation to be the appropriate remedy and I award the Complainant the sum of €2,000.
CA-00024173-001 Organisation of Working Time Act 1997 (holiday pay)
The Complainant provided evidence that she had accrued 55 plus 4 days annual leave up to the date of cessation of her employment. Section 19 of the Organisation of Working Time Act provides for an employee’s entitlement to paid annual leave up to the maximum of 4 working weeks in the leave year. Section 23 of the Act provides for compensation on cesser of employment up to a maximum of two years leave. I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €4,152 which I find is the monetary value of the leave entitlement under the Act.
CA-00024174-001 Payment of Wages Act 1991
The Complainant having over two years service is entitled to minimum notice of two weeks. I find her complaint to be well founded.
Decision:
CA-00023668-001 Unfair Dismissal
I find that the Complainant was unfairly dismissed. I find compensation to be the appropriate remedy and I award the Complainant the sum of €2,000.
CA-00024173-001 Organisation of Working Time Act 1997 (holiday pay)
I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €4,152 which I find is the monetary value of the leave entitlement under the Act.
CA-00024174-001 Payment of Wages Act 1991
The Complainant having over two years service is entitled to minimum notice of two weeks. I find her complaint to be well founded. I require the Respondent to pay to the Complainant the sum of €1,038 being the monetary value of two weeks pay in lieu of her entitlement to statutory minimum notice.
Dated: 02nd October 2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Unfair dismissal, lack of procedures, annual leave, minimum notice |