Complainant

Respondent

Anonymised Parties

{A Machine Operator}

{An Engineering Company}

Representatives

Simon McElwee Farrell McElwee Solicitors

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-00028939-001

10/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00028939-002

10/06/2019

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

CA-00028939-003

10/06/2019

The Complainant was employed as a machine operator from 17th October 2016 to 15th April 2019.

CA-00028939-001, CA-00028939-002,

The Complainant was dismissed without sufficient reason and in the absence of fair procedures.

The Complainant says he has been working in the construction industry since he was 19 years old and has never been dismissed. He worked Monday to Friday and was paid 750 euro gross every Friday. 5 weeks earlier in March 2019, he did not receive his pay in his bank account until Saturday or the following Monday. He raised the delay in receiving his money and he was told he can “F …. Off”. He lives outside Dublin and worked in a site in Dublin. He was then moved to another site which was more difficult to access due to his location.

He was given 1 week’s notice only. He was made redundant in response to his queries regarding delays in payment. He received his P45 and no redundancy monies. He was unfairly dismissed, there was no selection procedure used by the Respondent.

He received a letter from the company confirming his dates of employment on 15th April 2019 saying “It is with regret we no longer have a position available to the Complainant but should something arise we will contact him immediately. “

He was dismissed on 15th April 2019 and was out of work for a number of months. The Complainant has specific ongoing costs. There were other jobs advertised by the employer in July 2019. The Complainant obtained employment as a machine driver on 1st July 2019 at 700 euro per week gross.

CA-00028939-003

The Complainant never received the contract of employment produced by the employer, which is not signed or dated.

CA-00028939-001, CA-00028939-002,

The Respondent claims the Complainant was not made redundant but handed in his notice. The witness says the Complainant notified them he was moving to another company on 5th April 2019. The Complainant worked out the week. The Complainant then rang to say there was no position and the Respondent allowed him to work 1 more week. The site he worked on was finishing up. The Complainant received his minimum notice of 2 weeks.

The employer declined to extend employment when the Complainant sought to extend this by another week. There was no dismissal.

CA-00028939-003

The Respondent says they provided a contract of employment to the Complainant. The foreman gave this to the Complainant. The foreman did not attend the hearing.

I have listened carefully to the evidence of the parties at the hearing and considered the written submissions.

The Complainant worked with the company for around 2 and half years as a machine operator. The fact of dismissal is disputed by the parties. The Complainant claims he was dismissed. A letter issued by the company on 15th April 2019 confirmed there was no longer a position for the Complainant. No reason is given for dismissal. The Complainant subsequently suffered financial loss for a number of months until he was re-employed in July 2019.

The Respondent claims the Complainant handed in his notice and was to move to another company, which job fell through. There was no evidence adduced to substantiate this claim. The Respondent on the other hand, also claims that 2 weeks minimum notice was given to the Complainant. A machine operator position was advertised by the Respondent in July 2019.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. The onus lies on an employer to discharge this burden.

Section 6 (1) (7) of the Act provides without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal regard may be had, if the Adjudication Officer as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (whether by act or omission) of the employer in relation to the dismissal and,

(b)    to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee with the procedure referred to in S14 (1) of this Act, or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals Amendment Act 1993) of section 7 (2) of this Act.

The employer has not discharged the burden of proof required. I find the Complainant was unfairly dismissed procedurally and substantively.

The Complainant has mitigated his losses since 1 July 2019. It is just and equitable that he be awarded compensation for financial loss of 10 weeks of 7,500 euro.

CA-00028939-002

I accept the Complainant’s version of events. I find the complaint is well founded and award the Complainant 1 week’s loss of earnings of 750 euro.

CA-00028939-003

The Complainant denies receiving the contract of employment. Respondent has not adduced evidence the contract of employment was provided to the Complainant. This is a continuing breach of S7 of the Terms of Employment (Information) Act 1994. I find the complaint is well founded and award the Complainant 4 weeks compensation of 3,000 euro for the breach.

CA-00028939-001

I find the Complainant was unfairly dismissed procedurally and substantively. The Complainant has mitigated his losses since 1 July 2019. It is just and equitable that he be awarded compensation for financial loss of 10 weeks of 7,500 euro.

CA-00028939-002

I find the complaint is well founded and award the Complainant 1 week’s loss of earnings of 750 euro.

CA-00028939-003

I find the complaint is well founded and award the Complainant 4 weeks compensation of 3,000 euro for the breach.

Dismissal in dispute, dismissal procedurally and substantively unfair.