Correction Order
Correction Order issued pursuant to Section 39 of the Organisation of Working Time Act, 1977. This Correction Order for AO Decision ADJ-00023016, Complaint CA-00029607-001should be read in conjunction with the Decision issued on 24th August 2020
ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00023016
Parties:
| Complainant | Respondent |
Anonymised Parties | An Electrician | An Electrical Contractor |
Representatives | Sheila Neary North Leinster Citizens Information Service CLG |
|
Complaint(s):
Act | Complaint/Dispute 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-00029607-001 | 11/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 | CA-00029607-002 | 11/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00029607-003 | 11/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00029607-004 | 11/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 | CA-00029607-005 | 11/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00029607-006 | 11/07/2019 |
Date of Adjudication Hearing: 31/10/2019
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following 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:
This complaint by an electrician against an electrical contractor refers to various alleged breaches of employment rights including a complaint of Constructive Dismissal.
Summary of Complainant’s Case:
The Complainant was employed as an electrician from 24th April 2017 until 29th January 2019.
CA-00029607-001Complaint under section 7 of the Terms of Employment (Information) Act, 1994
The Complainant submitted that he worked for The Respondent from 24th April 2017 to 29th January 2019 and during that time he did not receive a statement in writing on his terms of employment.
CA-00029607-002 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015 The Complainant submitted that during his employment with the Respondent he did not receive the terms and condition as laid down by a Sectoral Employment Orders. He submitted that he was interviewed for the job by the Respondent he was advised that he would be starting on a rate of pay of €20 per hour, and that would be reviewed after a trial period of two to three months. The Complainant maintained that he was never paid the full electrical rates as per the SEO. The complainant submitted pay slips which indicated he was paid €18.50 per hour.
The Complainant submitted as he had five years’ experience as an electrician, he was entitled to the rates of pay in accordance with the relevant SEO, but despite seeking this every couple of months it was never paid to him.
CA-00029607-003 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
The Complainant submitted that he was dismissed from his employment without minimum notice where he received a phone call and an email from his employer terminating his employment with immediate effect from the date of the email 29 January 2019.
CA-00029607-004Complaint under section 6 of the Payment of Wages Act, 1991
The Complainant maintained that the Respondent terminated his employment without minimum notice immediately and he did not receive the appropriate pay in lieu of notice on termination of his employment.
CA-00029607-005 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015
The Complainant submitted that he did not receive appropriate rates of pay for a qualified electrical with over 5 years’ experience as set out under a Sectoral Employment Order. The Complainant maintained that the had requested the appropriate pay on numerous occasions from his second month in employment and approximately every two months thereafter but that the Respondent refused to pay him the correct rate of pay.
This complaint is the same complaint as raised under CA-00029607-002 above.
CA-00029607-006 Complaint under Section 8 of the Unfair Dismissals Act, 1977
The Complainant submitted that after a number of months working with the Respondent he had been provided with a van and where he would be required to travel to various sites and locations to do electrical repairs at client sites. However, in the main, he had been employed at one location.
In August 2018 he was asked to use a tracking system which recorded his location and time on site, and to upload the App on his personal phone. He was unhappy to have the App on his personal phone due to data protection concerns and asked for how his personal data would be protected. He received no clarifications from the Respondent. He agreed to use the App but only if it was provided on a company phone. He was told a company phone would not be provided to him.
The Complainant took sick leave on 16th November 2018 to attend to a medical procedure and at that time he advised his supervisor that he would be fit to return to work on second week in January 2019.
The Complainant submitted that his employment was terminated without notice on the 29th January 2019. The Complainant maintained that his dismissal was unfair as he received a phone call followed by an email to advise him that his employment was terminated with immediate effect due to lack of work. The Complainant was not told who else was laid off, and when he requested information as to whether it was a temporary layoff and if he was the only person effected, he received the email advising him that due to the current workload the Respondent had to terminate his employment.
The Complainant submitted that that the Respondent had work available as the work vans were still at work sites after his employment was terminated, and that his work van was sent to the UK for jobs the Respondent was completing there. He maintained he was never asked to go to the UK, and submitted that since his dismissal the Respondent has advertised jobs where it referred to the organisation as a growing team of engineers and technicians.
Summary of Respondent’s Case:
CA-00029607-001Complaint under section 7 of the Terms of Employment (Information) Act, 1994
The Respondent acknowledged the Complainant was not provided with his Terms of Employment in writing.
CA-00029607-002 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015
The Respondent advised it was not aware of the SEO and it had been recently audited by the WRC.
CA-00029607-003 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
The Respondent acknowledged it notified the Complainant of the termination of his employment over the phone and conformed this by email. It did not provide evidence that the Complainant had received pay in lieu of notice.
CA-00029607-004Complaint under section 6 of the Payment of Wages Act, 1991 This complaint is responded to under complaint 003 above.
CA-00029607-005 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015 This complaint is responded to under complaint 002 above.
CA-00029607-006 Complaint under Section 8 of the Unfair Dismissals Act, 1977
The Respondent submitted that when the Complainant was on sick leave the business became quiet, so it contacted the Complainant on the phone to advise him that it had to let him go. The Respondent maintained that work depended on contracts and that impacted on the work that was available. The Respondent advised it had to temporarily lay off workers but did not provide details of this process, or how the Complainant’s role was considered. It denied that the Complainant was unfairly dismissed. The Respondent maintained that it has subsequently taken on an apprentice and denied that work was available for the Complainant.
Findings and Conclusions:
CA-00029607-001Complaint under section 7 of the Terms of Employment (Information) Act, 1994
Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing…particulars of the terms ofthe employee’s employment.
As the Respondent had acknowledged it did not provide the Complainant with a statement in writing with the required particulars of the terms of the Complainant’s employment, I find this complaint to be well founded.
CA-00029607-002 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015
Sectoral Employment Orders were in place throughout the period of employment of the Complainant. As the Complainant had been working as an electrician for five years he was entitled to be paid at the rates as laid out in the SEO for electrical contractors.
The complainant was only paid €18.50 per hour at the time his employment was terminated. The SEO entitled him to be paid €23.12 per hour from 31st March 2018, and €23.70 from 1st September 2018. The Complainant submitted that he had been seeking this payment within a couple of months of starting his employment and had continued to ask for it throughout his employment at regular intervals, but the Respondent never corrected the underpayment.
Section 19(1) of the Industrial Relations (Amendment) Act, 2015 states A sectoral employment order shall apply, for the purposes of this section,to every worker of the class, type or group in the economic sector to which it isexpressed to apply, and his or her employer… Furthermore section 19(2) of the Act requires If a contract between a worker of a class, type or group to which a sectoralemployment order applies and his or her employer provides for the payment of …remuneration at a rate less thanthe rate provided by such order and applicable to such worker, the contract shall, in respect of any period duringwhich the order applies, have effect as if the order rate were substituted for the contract rate.
I find that the Complainant was entitled to be paid the correct amount, and therefore uphold the complaint.
CA-00029607-003 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Section 4 (a) of the Minimum Notice & Terms of Employment Act, 1973 requires that an employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service of his employer for less than two years, one week’s notice.
I find that the Complainant received summary notice of the termination of employment over the and by email on the same day and did not receive one weeks’ notice. I therefore find that this complaint is well founded that the Respondent is in breach of its obligations under section 4 of the Act.
CA-00029607-004Complaint under section 6 of the Payment of Wages Act, 1991
This complaint refers to the non- payment of one weeks’ notice. This matter was considered under complaint 003 above.
CA-00029607-005 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015
As this complaint is refers to the non-payment of entitlements under a Sectoral Employment Order, it has been addressed under complaint 002 above.
CA-00029607-006 Complaint under Section 8 of the Unfair Dismissals Act, 1977
In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.
S6(4) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
- (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
- (b) the conduct of the employee,
- (c) the redundancy of the employee, and
- (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (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 which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.
Having considered the evidence, I do not find there was cause for the Respondent to dismiss the Complainant due to any of the reasons as set out in Section 6(4) (a) to (d) of the Act. I therefore find the decision to dismiss the Complainant amounted to an unfair dismissal. I further find the Respondent was unreasonable in the manner of dismissing the Complainant, where the Complainant was summarily dismissed over the phone which was followed up by an email. The Respondent did not comply with any procedure in which the Respondent is obliged to observe before dismissing the Complainant. I therefore find that the complaint of unfair dismissal is well founded.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00029607-001Complaint under section 7 of the Terms of Employment (Information) Act, 1994
In accordance with Section 7 of the Act I find that the complaint is well founded and that the Respondent has failed to provide the Complainant with written terms of his conditions of employment. I therefore order the Respondent to pay to the Complainant compensation of two weeks earnings based on the his standard week of work which was 39 hours per week, at €23.70 per hour.
CA-00029607-002 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015
In accordance with Section 23(2) of the Industrial Relations Amendment Act 2015, as I have upheld the complaint.
The complaint in his evidence stated that he was aware of the underpayment since shortly after commencing his employment on 24th April 2017, that he had sought the underpayment be addressed on numerous occasions but where the underpayment continued until the date of termination of employment which was 29th January 2019.
Accordingly, as the Respondent was aware of the underpayments and gave commitments to rectify the matter but failed to meets it obligations under the SEO, I award the Complainant €7.966.85 which is the amount claimed for and where I consider this amount as being just and equitable having regard to all the circumstances.
CA-00029607-003 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
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 12 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to a contravention of Section 4 of that Act.
As I have found the Respondent is in Contravention of the Act, I direct that the Respondent pay to the employee compensation of one weeks’ pay where his standard week was 39 hours per week at €23.70 per hour, which represents his statutory notice, and amounts to €924.30.
CA-00029607-004Complaint under section 6 of the Payment of Wages Act, 1991
As this complaint refers to a wrongful deduction for the non-payment of one weeks’ notice, it has been dealt with under complaint 003 above.
CA-00029607-005 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015 As this complaint is refers to the non-payment of entitlements under a Sectoral Employment Order, it has been addressed under complaint 002 above.
CA-00029607-006 Complaint under Section 8 of the Unfair Dismissals Act, 1977
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.
For the aforesaid reasons, pursuant to Section 8 of the Unfair Dismissals Act 1977 I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent.
Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. Relevant to the case within, where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”
Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.
In circumstances that I have found that the Complainant was unfairly dismissed I must consider the evidence in relation to his mitigation of losses. The Complainant submitted that he had made four efforts to find work in 6th February 2019 and he received a three month contract from March to June 2019. He had made a further effort in May 2019 to seek full time employment.
Therefore, I consider it just and equitable in all the circumstances to award the Complainant €7,000 compensation (subject to any lawful deductions) reflecting the actual losses, and the potential losses until full time employment is found.
Dated: 24th August 2020
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Key Words:
Payment of Wages, Notice on Terminating of Employment, Information on Terms and Conditions of Employment in Writing, Sectoral Employment Order, Unfair Dismissal |
ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00023016
Parties:
| Complainant | Respondent |
Anonymised Parties | An Electrician | An Electrical Contractor |
Representatives | Sheila Neary North Leinster Citizens Information Service CLG | Self |
Complaint(s):
Act | Complaint/Dispute 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-00029607-001 | 11/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 | CA-00029607-002 | 11/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00029607-003 | 11/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00029607-004 | 11/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 | CA-00029607-005 | 11/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00029607-006 | 11/07/2019 |
Date of Adjudication Hearing: 31/10/2019
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following 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:
This complaint by an electrician against an electrical contractor refers to various alleged breaches of employment rights including a complaint of Constructive Dismissal.
Summary of Complainant’s Case:
The Complainant was employed as an electrician from 24th April 2017 until 29th January 2019.
CA-00029607-001Complaint under section 7 of the Terms of Employment (Information) Act, 1994
The Complainant submitted that he worked for The Respondent from 24th April 2017 to 29th January 2019 and during that time he did not receive a statement in writing on his terms of employment.
CA-00029607-002 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015 The Complainant submitted that during his employment with the Respondent he did not receive the terms and condition as laid down by a Sectoral Employment Orders. He submitted that he was interviewed for the job by the Respondent he was advised that he would be starting on a rate of pay of €20 per hour, and that would be reviewed after a trial period of two to three months. The Complainant maintained that he was never paid the full electrical rates as per the SEO. The complainant submitted pay slips which indicated he was paid €18.50 per hour.
The Complainant submitted as he had five years’ experience as an electrician, he was entitled to the rates of pay in accordance with the relevant SEO, but despite seeking this every couple of months it was never paid to him.
CA-00029607-003 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
The Complainant submitted that he was dismissed from his employment without minimum notice where he received a phone call and an email from his employer terminating his employment with immediate effect from the date of the email 29 January 2019.
CA-00029607-004Complaint under section 6 of the Payment of Wages Act, 1991
The Complainant maintained that the Respondent terminated his employment without minimum notice immediately and he did not receive the appropriate pay in lieu of notice on termination of his employment.
CA-00029607-005 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015
The Complainant submitted that he did not receive appropriate rates of pay for a qualified electrical with over 5 years’ experience as set out under a Sectoral Employment Order. The Complainant maintained that the had requested the appropriate pay on numerous occasions from his second month in employment and approximately every two months thereafter but that the Respondent refused to pay him the correct rate of pay.
This complaint is the same complaint as raised under CA-00029607-002 above.
CA-00029607-006 Complaint under Section 8 of the Unfair Dismissals Act, 1977
The Complainant submitted that after a number of months working with the Respondent he had been provided with a van and where he would be required to travel to various sites and locations to do electrical repairs at client sites. However, in the main, he had been employed at one location.
In August 2018 he was asked to use a tracking system which recorded his location and time on site, and to upload the App on his personal phone. He was unhappy to have the App on his personal phone due to data protection concerns and asked for how his personal data would be protected. He received no clarifications from the Respondent. He agreed to use the App but only if it was provided on a company phone. He was told a company phone would not be provided to him.
The Complainant took sick leave on 16th November 2018 to attend to a medical procedure and at that time he advised his supervisor that he would be fit to return to work on second week in January 2019.
The Complainant submitted that his employment was terminated without notice on the 29th January 2019. The Complainant maintained that his dismissal was unfair as he received a phone call followed by an email to advise him that his employment was terminated with immediate effect due to lack of work. The Complainant was not told who else was laid off, and when he requested information as to whether it was a temporary layoff and if he was the only person effected, he received the email advising him that due to the current workload the Respondent had to terminate his employment.
The Complainant submitted that that the Respondent had work available as the work vans were still at work sites after his employment was terminated, and that his work van was sent to the UK for jobs the Respondent was completing there. He maintained he was never asked to go to the UK, and submitted that since his dismissal the Respondent has advertised jobs where it referred to the organisation as a growing team of engineers and technicians.
Summary of Respondent’s Case:
CA-00029607-001Complaint under section 7 of the Terms of Employment (Information) Act, 1994
The Respondent acknowledged the Complainant was not provided with his Terms of Employment in writing.
CA-00029607-002 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015
The Respondent advised it was not aware of the SEO and it had been recently audited by the WRC.
CA-00029607-003 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
The Respondent acknowledged it notified the Complainant of the termination of his employment over the phone and conformed this by email. It did not provide evidence that the Complainant had received pay in lieu of notice.
CA-00029607-004Complaint under section 6 of the Payment of Wages Act, 1991 This complaint is responded to under complaint 003 above.
CA-00029607-005 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015 This complaint is responded to under complaint 002 above.
CA-00029607-006 Complaint under Section 8 of the Unfair Dismissals Act, 1977
The Respondent submitted that when the Complainant was on sick leave the business became quiet, so it contacted the Complainant on the phone to advise him that it had to let him go. The Respondent maintained that work depended on contracts and that impacted on the work that was available. The Respondent advised it had to temporarily lay off workers but did not provide details of this process, or how the Complainant’s role was considered. It denied that the Complainant was unfairly dismissed. The Respondent maintained that it has subsequently taken on an apprentice and denied that work was available for the Complainant.
Findings and Conclusions:
CA-00029607-001Complaint under section 7 of the Terms of Employment (Information) Act, 1994
Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing…particulars of the terms ofthe employee’s employment.
As the Respondent had acknowledged it did not provide the Complainant with a statement in writing with the required particulars of the terms of the Complainant’s employment, I find this complaint to be well founded.
CA-00029607-002 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015
Sectoral Employment Orders were in place throughout the period of employment of the Complainant. As the Complainant had been working as an electrician for five years he was entitled to be paid at the rates as laid out in the SEO for electrical contractors.
The complainant was only paid €18.50 per hour at the time his employment was terminated. The SEO entitled him to be paid €23.12 per hour from 31st March 2018, and €23.70 from 1st September 2018. The Complainant submitted that he had been seeking this payment within a couple of months of starting his employment and had continued to ask for it throughout his employment at regular intervals, but the Respondent never corrected the underpayment.
Section 19(1) of the Industrial Relations (Amendment) Act, 2015 states A sectoral employment order shall apply, for the purposes of this section,to every worker of the class, type or group in the economic sector to which it isexpressed to apply, and his or her employer… Furthermore section 19(2) of the Act requires If a contract between a worker of a class, type or group to which a sectoralemployment order applies and his or her employer provides for the payment of …remuneration at a rate less thanthe rate provided by such order and applicable to such worker, the contract shall, in respect of any period duringwhich the order applies, have effect as if the order rate were substituted for the contract rate.
I find that the Complainant was entitled to be paid the correct amount, and therefore uphold the complaint.
CA-00029607-003 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Section 4 (a) of the Minimum Notice & Terms of Employment Act, 1973 requires that an employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service of his employer for less than two years, one week’s notice.
I find that the Complainant received summary notice of the termination of employment over the and by email on the same day and did not receive one weeks’ notice. I therefore find that this complaint is well founded that the Respondent is in breach of its obligations under section 4 of the Act.
CA-00029607-004Complaint under section 6 of the Payment of Wages Act, 1991
This complaint refers to the non- payment of one weeks’ notice. This matter was considered under complaint 003 above.
CA-00029607-005 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015
As this complaint is refers to the non-payment of entitlements under a Sectoral Employment Order, it has been addressed under complaint 002 above.
CA-00029607-006 Complaint under Section 8 of the Unfair Dismissals Act, 1977
In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.
S6(4) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
- the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
- the conduct of the employee,
- the redundancy of the employee, and
- the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (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 which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.
Having considered the evidence, I do not find there was cause for the Respondent to dismiss the Complainant due to any of the reasons as set out in Section 6(4) (a) to (d) of the Act. I therefore find the decision to dismiss the Complainant amounted to an unfair dismissal. I further find the Respondent was unreasonable in the manner of dismissing the Complainant, where the Complainant was summarily dismissed over the phone which was followed up by an email. The Respondent did not comply with any procedure in which the Respondent is obliged to observe before dismissing the Complainant. I therefore find that the complaint of unfair dismissal is well founded.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00029607-001Complaint under section 7 of the Terms of Employment (Information) Act, 1994
In accordance with Section 7 of the Act I find that the complaint is well founded and that the Respondent has failed to provide the Complainant with written terms of her conditions of employment. I therefore order the Respondent to pay to the Complainant compensation of two weeks earnings based on the
CA-00029607-002 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015
In accordance with Section 23(2) of the Industrial Relations Amendment Act 2015, as I have upheld the complaint.
The complaint in his evidence stated that he was aware of the underpayment since shortly after commencing his employment on 24th April 2017, that he had sought the underpayment be addressed on numerous occasions but where the underpayment continued until the date of termination of employment which was 29th January 2019.
Accordingly, as the Respondent was aware of the underpayments and gave commitments to rectify the matter but failed to meets it obligations under the SEO, I award the Complainant €7.966.85 which is the amount claimed for and where I consider this amount as being just and equitable having regard to all the circumstances.
CA-00029607-003 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
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 12 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to a contravention of Section 4 of that Act.
As I have found the Respondent is in Contravention of the Act, I direct that the Respondent pay to the employee compensation of one weeks’ pay where his standard week was 39 hours per week at €23.70 per hour, which represents his statutory notice, and amounts to €924.30.
CA-00029607-004Complaint under section 6 of the Payment of Wages Act, 1991
As this complaint refers to a wrongful deduction for the non-payment of one weeks’ notice, it has been dealt with under complaint 003 above.
CA-00029607-005 Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015 As this complaint is refers to the non-payment of entitlements under a Sectoral Employment Order, it has been addressed under complaint 002 above.
CA-00029607-006 Complaint under Section 8 of the Unfair Dismissals Act, 1977
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.
For the aforesaid reasons, pursuant to Section 8 of the Unfair Dismissals Act 1977 I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent.
Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. Relevant to the case within, where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”
Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.
In circumstances that I have found that the Complainant was unfairly dismissed I must consider the evidence in relation to his mitigation of losses. The Complainant submitted that he had made four efforts to find work in 6th February 2019 and he received a three month contract from March to June 2019. He had made a further effort in May 2019 to seek full time employment.
Therefore, I consider it just and equitable in all the circumstances to award the Complainant €7,000 compensation (subject to any lawful deductions) reflecting the actual losses, and the potential losses until full time employment is found.
Dated: 24/08/2020
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Key Words:
Payment of Wages, Notice on Terminating of Employment, Information on Terms and Conditions of Employment in Writing, Sectoral Employment Order, Unfair Dismissal |