ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016445

Parties:

	Complainant	Respondent
Anonymised Parties	Account Sales Manager	Wifi Solutions and Services provider

Representatives

Oliver Costello BL Kenneth Smyth Ken Smyth & Co Solicitors

Complaint(s):

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-00021311-001	24/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00021311-002	24/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00021311-003	24/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021311-004	24/08/2018

Date of Adjudication Hearing: 10/05/2019

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.

The evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.

Also, an Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).

In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 24th of August 2018) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter

Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.

Other complaints have been brought under the Payment of Wages Act and the Organisation of working Time Act.

Background:

The Complainant was employed with the Respondent Company as an Accounts Manager. The Complainant was solely responsible for a number of large clients. The Complainant was made redundant in and around March of 2018 and the Complainant is challenging the legitimacy of this Redundancy. The Complaint is brought under the Unfair Dismissals legislation and is set out in the Workplace Relations Complaint Form dated the 24th of August 2018.

Summary of Complainant’s Case:

The Complainant gave evidence on his own behalf and I was provided with some documentary evidence substantiating his evidence.

Summary of Respondent’s Case:

The Respondent did not attend.

Findings and Conclusions:

I have carefully listened to the evidence adduced in the course of this hearing.

At the outset I note that these exact complaints (contained in ADJ 16445) came before another Adjudicator of the WRC on the 19th of November 2018. At that time the Respondent had engaged a reputable firm of Solicitors to act on its behalf. The documentation shows that the parties reached an agreement in Good Faith on that day and that a proposed format for implementation was agreed though it should be noted I have not sought nor been given the detail thereof. I rely on what I have been told.

I note that it was agreed that the WRC would be notified if the settlement was not implemented and that this would be done on or before the 8th of March 2019.

I am satisfied that this matter has been re-entered for the purpose of a full hearing in circumstances where the Respondent has not kept its side of the agreement reached. No blame is attached to the Solicitor then acting for the Respondent who have since come off record.

It must be further noted that the Respondent did not attend the hearing listed on the 10th of May 2019 which was the new date assigned to the hearing of these within complaints and as a consequence of which this decision is made. I am satisfied that the Respondent has been notified of this hearing date and a letter was sent out to the Respondent on the 16th of April confirming this fact.

Finally, I would also note that the Complaints herein, are the exact same as the Complaints set out in ADJ 20549. These two ADJ files were linked from the outset (at the request of the parties) and the only difference is the name of the Respondent. The Complainant is satisfied that only one of the two Respondents is the Employer. The Respondent did not present to clarify which was the appropriate employer though subsequent Correspondence from the Director of this Respondent appears to confirm that this is the correct Respondent.

The Complainant gave evidence on his own behalf. On balance I am accepting the veracity and accuracy of the Complainant’s evidence in circumstances where no witness attended on behalf of the Respondent to rebut or otherwise contradict the Complainant ‘s version of events.

The Complainant worked with the Respondent for upward of 13 years and was at a highly skilled management level.

In early 2018 the Complainant was told he was going to be made Redundant without any warning or consultation or discussion. The Complainant was given no explanation. The work the Complainant had been doing continues to be done within the company. No alternative work was discussed. The Complainant was provided with no Redundancy payment on his departure and had received no Holiday Pay.

In his original complaint form, the Complainant had included a claim for Statutory Redundancy. I accept that the Complainant did this where he had not (at that time) received any such payment despite the Respondent contention that he had been made Redundant. I accept that at all times the Complainant has challenged the fairness of the purported decision to make him redundant. I understand that circa €15,000.00 was forwarded to the Complainant in piecemeal manner after he had initiated these proceedings. It is appropriate that this amount be offset against any compensation awarded for an Unfair Dismissal.

The Complainant was out of work for three months and when he secured alternative employment the Complainant only earned half what he was being paid with the Respondent company. The Complainant had been earning €10,500.00 per month gross in the employ of the Respondent. The Complainant has mitigated his losses.

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.

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.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00021311-001

I find that the Complainant was unfairly dismissed in all the circumstances. The Complainant succeeds under the Unfair dismissals legislation. I award the sum of €50,000.00 compensation for loss of earnings. There is an offset of €15,000.00 already paid. I therefore award the sum of €35,000.00.

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 - CA-00021311-002

The Complainant’s position was not made Redundant.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00021311-003

The claim is not being proceeded with and is withdrawn

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00021311-004

The Complaint of not getting paid appropriate Holiday Pay is well founded and I require the employer to pay to the employee compensation in the amount of €5,000.00 as is just and equitable having regard to all the circumstances.

Dated: 12th February 2020

Workplace Relations Commission Adjudication Officer: Penelope McGrath