ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Shop Assistant | A Shop Owner |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00022932-001 | ||
CA-00022932-004 | ||
CA-00022932-005 | ||
CA-00022932-006 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The complainant commenced employment with the respondent in February 2005 as a shop assistant. His employment ended on 16th September 2018. At the time his employment ended he worked 5.5 hours per week and was paid €55.00 gross per week. The complainant lodged a complaint with the WRC on 30th October 2018. The respondent did not attend the hearing. |
CA-00022932-001 Complaint under the Unfair Dismissals Act, 1977.
Summary of Complainant’s Case:
The complainant submits that up to the beginning of 2018 he worked 24 hours per week in the respondent’s shop at a rate of €10.00 per hour. He normally worked Sundays and Public Holidays. From the start of 2018 his working hours were reduced and by the time his employment ended he was only working 5.5 hours per week. The complainant submits that at 4.00pm on Sunday 16th September 2018, he arrived at the shop to start his rostered hours. He was due to work with Mr A, who was his supervisor. Mr A told the complainant he was not feeling well and that he was going to the office. At 8.00pm Mr A came out of the office and told the complainant that he had been instructed by Mr B (the owner of the shop) to tell the complainant that he was to clean the shop windows. The complainant explained to Mr A that he had lots of other tasks to finish before his shift finished at 10.00pm and he would therefore be unable to clean the windows for lack of time. Some short time later Mr A came back to the complainant and told him that Mr B had said that if he, the complainant, was unable to clean the windows, he should go home immediately and not come back. The complainant reported to work on the following Monday to speak with Mr B directly. Mr B was not available, but Mr A told the complainant that he was fired. The complainant wanted to continue his shift, but Mr A made it clear to him that his employment had been terminated. The complainant went back to the shop on the following Thursday to speak with Mr B, but he was told Mr B was not in the shop and that he would send the complainant a message when he had time to speak with him. The complainant submits that he waited one week but he heard nothing from Mr B. The complainant again visited the shop and was again told by Mr A, his supervisor, that he had been fired and that he would be sending the complainant a letter and his P45. The complainant submits that he was later told he had been suspended however, at no time when he visited the shop after 16th September did anyone mention a suspension. The complainant subsequently received his pay for his work up to 16th September, but there was a deduction for the two hours which he had not worked after 8.00pm. The following week, his outstanding holiday pay was paid to the complainant, confirming to him that he had in fact been fired. In direct evidence at the hearing the complainant stated that he was working Sundays but was being given too much work for one person; washing floors, cleaning toilets, etc plus he had to man the till. The complainant stated that when he went to the shop on Monday 17th September, he was told he would be getting his P45 within a week. When he had not received his P45 two weeks later the complainant sought advice on the matter. He stated that he had still not received his P45 but was getting payslips from the respondent; but no pay. The complainant stated that he had received text messages from the respondent after 17th September, telling him that he had not been sacked and that he should come back to work. The advice the complainant got was that he should not go back to work. The complainant stated that he only started getting the text messages from Mr B, after his advisor had contacted the owner. The complainant stated that during his employment with the respondent he also worked as a window cleaner with a professional window cleaning company. However, he also worked 16 hours per week with the respondent and had done so for 14 years. He still works as a window cleaner.
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Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
The complainant submits that he was told on several occasions that he had been fired. He was also told his P45 was about to be sent to him. He was paid his outstanding holiday pay. No disciplinary procedures were initiated at any stage before the complainant was told he had been dismissed. I find the complainant to be a credible witness and on his uncontested evidence I find that he was unfairly dismissed. |
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.
The complaint is well founded, and I order the respondent to pay the complainant €2,860.00. |
CA-00022932-004 Complaint under the Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
The complainant submits that he was never given a statement in writing on his terms of employment. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
On the uncontested evidence of the complainant I find there was a breach of the Act as alleged. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded, and I order the respondent to pay the complainant €500.00. |
CA-00022932-005 Complaint under the Payment of Wages Act, 1991.
Summary of Complainant’s Case:
The complainant submits that he did not receive any notice of the termination of his employment or any payment in lieu of notice. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
On the uncontested evidence of the complainant I find there was a breach of the Act as alleged. I find the complainant had worked for the respondent for more than 13 years and is therefore entitled to a notice payment of six week’s pay in lieu of notice. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded, and I order the respondent to pay the complainant €330.00. |
CA-00022932-006 Complaint under the Employment Equality Act, 1998.
Summary of Complainant’s Case:
The complainant submits he was discriminated against by reason of his race and the respondent s treated him unlawfully in his conditions of employment. The complainant submits that since the respondent took over the shop, he has gradually reduced the complainant’s hours of work and employed several new employees who come from the same ethnic background as the respondent. The complainant submits that the respondent is seeking to replace all staff with staff from his own ethnic background. In response to a question the complainant stated that two of the current staff are Irish. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of race, in terms of section 6 of the Acts and contrary to section 8 of those Acts in relation to dismissal. Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...". Having considered the evidence adduced at the hearing I find that the complainant has not established facts from which discrimination may be inferred. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The complaint is not well founded. |
Workplace Relations Commission Adjudication Officer:
Key Words:
No procedures, no warning, P45, non-payment of notice, contract of employment, burden of proof |