Complainant

Respondent

Anonymised Parties

A Lorry Driver

A Logistics Company

Representatives

MichelleCorcoran,R. Neville & Co.

No Appearance by or on behalf of the Respondent 

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-00027575-001

04/04/2019

A Complaint of Unfair Dismissal was lodge on behalf of the Complainant, a Polish national on 4 April 2019.

Prior to this, the Complainants Solicitor had filed a complaint of Unfair Dismissal directly with the Respondent, seeking engagement within 14 days. There was no response to this request.

On May 3, 2019, the WRC invited the Respondent to file a replying submission to the claim. There was no response. There was no appearance by or on behalf of the Respondent on the day of hearing.

At the end of the hearing, the complainant was requested to provide a P60 to asset in confirming his salary. This was presented for the year 2017 and was accompanied by pay slips for 2017 and 2018. I am grateful to the Complainant for furnishing these documents.

The WRC has no received any contact from the Respondent despite three contacts, through sharing the complaint, invitation to submit a response and invitation to hearing.

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

The Complainants Solicitor outlined that he had commenced full time work with the Respondent Logistics Company on 25 August 2017. His nett wage was €555.00. He had not been given a contract of employment.

He was not assigned to a fixed route. The Complainant gave his evidence with the assistance of an Interpreter.

The Complainant stated that he was dismissed on his return from leave on January 6, 2019. He obtained new work on 17 July 2019. There were some variances in pay in the new work.  

The Complainant is a Polish National and one of 9-10 Lorry Drivers in a staff of 15 employees. He applied for leave at Christmas time and signed the Holiday card before he left for three weeks leave (17 December -7 January ,2019) on 16 December 2018. He surrendered his Tachograph as normal.

This was his first Christmas off and he understood that it was approved leave. He received a €50 Christmas Bonus.

The Complainant submitted that he returned to work to be told that “there was no work for him for the moment” He was informed that an external body had said that he was late on the run. He had not received any details of a complaint and refuted this statement.

The Complainant was confused and sought clarification by text and when this was ignored he instructed a Solicitor to challenge the unanticipated treatment. The sole equipment he retained were his work boots.

The Complainant outlined that his Dismissal conducted in the way it happened had a detrimental affect on him. His training record ran out and he was compelled to live on social welfare and rent allowance until he found new work on lesser pay in July 2019.  

The Complainants Solicitor concluded that she had sought a direct engagement on the reasons for dismissal with the Respondent, but no engagement followed. She submitted that he had been treated shabbily, was at a loss as to why he was dismissed and denied notice payments. She sought a maximum award of compensation, mindful of the differential in the pay in both positions.

I have considered the facts raised by the complainant in this case. I did not have the benefit of a response of any kind from the Respondent in the case, which is regrettable given that the burden of proof rests with the respondent to prove that the Dismissal was fair.

 I am satisfied that the Respondent was properly notified of the claim and what was expected in terms of eliciting both a written and oral response. I must now accept that the respondent has waivered this right in the case as I have not heard from them. I also took the step of delaying the commencement of the hearing to allow for any logistical delay.

The law in Unfair Dismissals in contained in Section 6(1) of the Act

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 for all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(7) of the Act permits me to have regard for:

(a)    The reasonableness of the employer in relation to the dismissal

And

       (b) to extent (if any) or the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in Section 14 of the Act.

It is of note that the Respondent has ignored its obligations as set down in Section 14(4) of the Act.

A person’s employment is their livelihood and both parties, Employer and Employee contract on a basis of mutual trust and confidence. This is the fundamental cornerstone of employment.

This cornerstone  requires the Employer to have regard for fair procedures , natural justice and due process in terminating employment prematurely .In Redmond on Dismissal Law : Des Ryan BL outlines that “ Termination of employment without notice will constitute a lawful dismissal only where there are grounds which the law regards as sufficient to justify the dismissal “ If these grounds were not to exist , an employer will be held to be in breach of contract .

The failure by the Employer to engage in explaining or outlining at least the circumstances they have chosen to rely on in dismissing the claimant taken together with the uncontested evidence of the complainant is bound to render this an Unfair Dismissal as provided for in 6(1) of the Act. The Respondent did not respond to the Complainant within the terms of Section 14(4) of the Act. This renders the actions of the Employer unreasonable. I note that the same address was used on all communique by both the Complainant and the WRC.

I am very disappointed that the Respondent has ignore the Offices of the WRC .It is important to have respect for bodies such as the WRC who are merely operating under the “ Rule of Law “.

In conclusion , in finding that the Dismissal of the Complainant, a Polish National with limited English , was an Unfair Dismissal , I wish to re-affirm that everyone is entitled to their character, reputation and  financial wellbeing in a world of work .By  the Respondents arbitrary actions of dismissal coupled with a “ veil of silence “ on the reasons supporting this , I find that I must recommend compensation at the higher end of the scale .

I would also urge the Respondent to issue contracts and staff handbooks to its employees in accordance with Statutory Instrument 146/2000 on Grievance and Disciplinary Procedures .

I have found the claim to be well founded.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision 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 that the Complainant was unfairly dismissed, and I order the Respondent to pay €20,000 compensation to the complainant to include actual and prospective loss and payment in lieu of notice.

Unfair Dismissal