ADJ-00019828

Complainant

Respondent

Anonymised Parties

A Furniture Fitter

A Furniture Business

Representatives

DaithiO'Donnabhain,Barry C. Gavlin and Son Solicitor

 No Appearance by or on behalf of the Respondent

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00026256-001

04/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00026256-002

04/02/2019

This case arose as a complaint submitted by the Complainant, a Furniture Fitter in respect of

1.       Statement of Terms and Conditions

2.       Unfair Dismissal

On 4 February 2019.

The Complainant was represented by Daithi O Donnabhain, Solicitor who made an oral submission to the hearing.

The Respondent runs a Furniture Business of 78 employees and 5 Furniture Fitters. There was no engagement by the Respondent at any stage in this claim. There was no appearance by or on behalf of the Respondent at hearing or subsequently.

The Complainants Solicitor submitted a Revenue statement for the complainant dated February , 2019 post hearing , this was copied to the Respondent .Details for 2018 were outstanding .

Mr O Donabhain, for the complainant outlined the facts of the case. He submitted that the complainant had been employed as a Furniture Fitter with the Respondent from May 2014 to the day of his summary dismissal on 13 October 2018. His nett pay was €450 for a 40-hour week with provision for over time. He did not have the benefit of pay slips. The Respondent business was joint owned and run.

CA -00026256-001 Terms of Employment

The Complainant submitted that he had not been provide by a Statement of His Terms of Employment at any time during his 4 years of employment.

CA -00026256-002 Claim for Unfair Dismissal

It was the complainant’s case that in the context of seeking a €20 payment in outstanding overtime payment, the Complainant was physically assaulted by one of the owners and summarily dismissed on 13 October 2018.

The Complainant had a brief conversation with the other joint owner who expressed the opinion that his business partner knew the action against the complainant was wrong, but he would never be able to get him to admit to it.

The complainant representative exhibited copies of 4 letters submitted to the Respondent in the aftermath of that date.

1.       26 October 2018. Identified that the Complainant had been unfairly dismissed and an application for compensation. He sought P60 and P45 within 14 day.

2.       23 November 2018. Urgent Re-iteration of the request for P60 and P45.

3.       6 December 2018. Reference to a delay in securing P45 due to a period of illness. Still not furnished.

4.       14 December 2018: A re-affirmation of the first letter on 26 October 2018.

The Complainant submitted that these letters had remained unanswered. The Complainant found new work on 3 December 2018.

Complainant Evidence:

The Complainant addressed the hearing. He had done overtime at work and had received a partial payment for it. The owner told him that payment would follow. He was short €20. He had been booked for over time.

At the 10 am break, he requested the €20 payment from the owner, who also worked as Workshop Foreman. He was informed that the owner did not have the money. The Complainant responded by stating that he wasn’t going to work for free. Almost immediately, he felt that he was caught by the throat by the owner and informed that “I don’t ever want to see you over here again “. He stated that he was directed out of the business via expletives.

A few hours later, the other owner phoned him and told him that his business partner realised that he had been wrong, but he could not get him to admit it. The employment ended there, without notice or a recall to work.

The Complainant recounted being shocked by his treatment at the hands of his employer. It had wrecked his confidence as well as leaving him with no earnings and uncertainty in employment. He had not involved the gardai.

He had been unable to secure a P45 to anchor contingency until he found work. He had to make an emergency approach to Revenue for this. He had never received a written statement of terms of employment.

The Complainant confirmed that he had found new work in early December and gave evidence of Mitigation.

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

CA -00026256-001 Terms of Employment

I have listened to the complainant’s case and I have considered the evidence adduced. A written statement of Terms of Employment as provided by Section 3 of the 1994 Act should be a foundation document in all employments. It provides a documentary linkage between an employer and employee and its omission in this case is keenly felt by the complainant. I did not have the benefit of hearing a response from the Respondent. I am satisfied that they were notified of the status of the claim in addition to the hearing details. I must conclude that the Respondent made a conscious decision not to attend the hearing.

I have established, based on the complainants uncontested evidence, that the complainant was not provided with a written statement of his terms of employment within the statutory time frame of two months post his commencement date. I have identified this contravention of Section 3 as continuous and grave.

The claim is well founded.

CA -00026256 -002 Claim for Unfair Dismissal

I have listened carefully to the Complainants outline of the facts of the case. I have considered the complainants evidence. I have had regard for the Complainants Representatives attempts to engage with the respondent in the aftermath of the events of 13 October 2018. All of which appear to have proved fruitless. I am struck by the 4 years of recorded employment in this case. The Complainant was not a novice. In any interpretation of the basic facts of this case, I could not establish just where the employers Duty of care towards a long-standing employee was demonstrated.

I understand that the workplace can sometimes be home to verbal and physical altercations. However, I would expect a health and safety driven intervention from somebody who was in charge.  The fact that the alleged protagonist was the Foreman in this case and  owner may have complicated things as it seemed that the other owner did not hold an influencing force over him. I would have liked to have heard from the Respondent in this case to expand on this point.

The fact that there were no apparent contract of  employment or  procedures and policies available to the complainant is another important consideration for me. This workforce is 80 strong, I would have expected Policies and Procedures to at least support a ground of appeal for what appeared to me at least to be “moment in time “event.

A careful examination of the Law of Unfair Dismissal is found in Section 6 of the 1977Act:

Unfair dismissal.   

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.

I have been unable to hear from the Respondent on whom the burden of proof in this case rests. I have not received any counter arguments under S.6(4) of the Act.

Having the considered the facts as presented and the inquiries I made at hearing, I am clear that the complainant was sent home on 13 October 2018. The respondent did not engage in any “reflection “on the extraordinary turn of events in a workplace setting and the apparent clear abuse of power. The Respondent appears to have acknowledged a wrong via the phone call from the joint owner but did nothing outside comment. I would have expected much more from this party.

The Complainant is entitled to consider himself dismissed because of the events he experienced in his workplace on 13 October 2018.

I found that he was quite disturbed by these events and his perceived abandonment to unemployment without notice or the requested P45.or P60.

Section 6(7) of the Act allows me to consider the reasonableness of the actions of the employer in this case. Based on the uncontested evidence of the complainant, I have found that the Respondent was unreasonable on several counts in their interaction with the complainant.

1.       The Complainant states that he was assaulted at work, not by a colleague, but by the owner of the business.

2.       There was no evidence of where the Employer duty of care to an employee was practiced

3.       There was no assistance given to complainant in recovering from this altercation

4.       He was dismissed from his employment without recourse to any procedural framework of Investigation, natural justice or due process.

If the Respondent had an issue with the Complainant, it may be timely to reflect on the comprehensive approach taken by the High Court in Frizzell V New Ross Credit Union [1997] IEHC 137 in the case of an allegation of misconduct

1 Is there a Bona Fide complaint unrelated to ulterior motive or agenda?

2 The Complaint was presented clearly, factually and without conclusion

3 The Complainant and response were presented simultaneously to the decision maker without comment.

4 A decision to dismiss took account of whether dismissal would be disproportionate response relative to the complaint the effect of the dismissal on the alleged wrong doer.

In the instant case, the complainant missed out on any procedures governing his dismissal.

This was also reflected in the Labour Court Case of instant dismissal in Pottle Pig Farm and Valery Panasov  UDD 1735.

I must conclude, that based on the uncontested evidence before me, the complainant was unfairly dismissed both on substantive and procedural grounds. The Respondent did not take the opportunity to engage in any discussions in the aftermath of the event and crucially, did not set out any reasons for the complainant’s dismissal or come to explain their version of events at hearing.

The claim for unfair dismissal is well founded.

Decision:

CA -00026256-001 Terms of Employment

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.

Section 7 of the Terms of Employment (Information) Act, 1994, requires me to make a decision in the case in accordance with Section 3 of the Act.

I have found the claim to be well founded and in accordance with Section 7 of the 1994 Act, (as amended) I order the Respondent to pay the complainant 4 weeks gross pay @ €550.00 per week as just and equitable compensation.

CA -00026256-002 claim for Unfair Dismissal 

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found the claim for Unfair Dismissal to be well founded and find that compensation is the only viable remedy open to me given the reported circumstances of the conclusion of the employment.

I order the Respondent to pay the complainant €11,000 in compensation and to include notice pay, actual and provision for prospective loss .

Unfair Dismissal, terms of employment, no appearance by the respondent.