Complainant

Respondent

Anonymised Parties

A Head Chef

A Hotel

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00024945-001

11/01/2019

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

CA-00024945-002

11/01/2019

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

CA-00024945-003

11/01/2019

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

CA-00024945-004

11/01/2019

These claims under section 27 of the Organisation of Working Time Act, 1997 and Section 8 of the Unfair Dismissals Act, 1977 were received on the 11th of January 2019 thus cognisable period for these claims’ dates from the 12th of July 2018 to the 11th of January 2019.

I proceeded to a hearing of these matters on 23rd of September 2019.

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

CA-00024945-001

11/01/2019

The complainant submits that

He did not get a daily rest period.

He did not receive his statutory rest breaks during his employment and deductions were made from his wages for these rest breaks.

The respondent submits that

The complainant was employed by them as a Head Chef,

The complainant did receive his breaks and in addition was permitted to take vaping breaks as often as he wished,

The complainant resigned his employment on the 12th of July 2018 via text message and voicemail stating that he would not be back to work, the complainant did not show up for work after that date,

The complainant following his resignation submitted two sick certs covering the period from 13th of July to 27th of July and did not show up for work or communicate with the respondent any further after that date.

Section 11 contains the relevant provision in relation to the entitlement to daily rest breaks.

These claims were received on the 11th of January 2019 thus the cognisable period for these claims dates from the 12th of July 2018 to the 11th of January 2019. The complainant in the present case did not return to work after the 12th of July 2018.

Request to extend the time limit

The Complainant when asked about the reason for the delay in submitting his claim stated that he was unaware of time limits and had taken advice from Citizens Information.

Decision on extension to the time limit

In deciding whether to allow an extension of time I refer to the Labour Court in the Cementation Skanska V Carroll DWT0342 which stated, “ in considering if reasonable cause exists it is for the complainant to show that there are reasons which both explains the delay and afford an excuse for the delay…In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and the circumstances known to the complainant at the material time”

I find that the Complainant in the present case has not put forward any convincing case to convince me extend the time limit.   Accordingly, I have decided not to grant the extension to the time limit. The period that may be investigated dates from the 12th of July 2018 to the 11th of January 2019.

The complainant in the present case did not return to work after the 12th of July 2018 and accordingly did not work any hours during the cognisable period of the complaint between the 12th of July 2018 to the 11th of January 2019.

Accordingly, I find that this part of the claim was out of time and that I do not have jurisdiction to hear this claim.

Accordingly, I find that this part of the claim is out of time and that I do not have jurisdiction to hear this claim.

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

CA-00024945-002

11/01/2019

The complainant submits that

He was required to work more than the maximum permitted number of hours and that he worked in excess of 48 hrs per week during his employment.

The respondent submits that the complainant

Did not work in excess of 48 hours per week,

The complainant resigned his employment on the 12th of July 2018 via text message and voicemail stating that he would not be back to work, the complainant did not show up for work after that date,

The complainant following his resignation submitted two sick certs covering the period from 13th of July to 27th of July and did not show up for work or communicate with the respondent any further after that date.

Section 15 contains the relevant provision in relation to working more the prescribed number of weekly working hours.

These claims were received on the 11th of January 2019 thus the cognisable period for these claims dates from the 12th of July 2018 to the 11th of January 2019.   The complainant in the present case did not return to work after the 12th of July 2018.

Request to extend the time limit

The Complainant when asked about the reason for the delay in submitting his claim stated that he was unaware of time limits and had taken advice from Citizens Information.

Decision on extension to the time limit

In deciding whether to allow an extension of time I refer to the Labour Court in the Cementation Skanska V Carroll DWT0342 which stated, “ in considering if reasonable cause exists it is for the complainant to show that there are reasons which both explains the delay and afford an excuse for the delay…In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and the circumstances known to the complainant at the material time”

I find that the Complainant in the present case has not put forward any convincing case to convince me extend the time limit.   Accordingly, I have decided not to grant the extension to the time limit. The period that may be investigated dates from the 12th of July 2018 to the 11th of January 2019.

The complainant in the present case did not return to work after the 12th of July 2018 and accordingly did not work any hours during the cognisable period of the complaint between the 12th of July 2018 to the 11th of January 2019.

Accordingly, I find that this part of the claim was out of time and that I do not have jurisdiction to hear this claim.

Accordingly, I find that this part of the claim is out of time and that I do not have jurisdiction to hear this claim.

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

CA-00024945-003

11/01/2019

The complainant submits that

He did not receive his paid holiday/annual leave entitlement

He states that during his employment his pre-requested annual leave was granted but was then rescinded due to staff shortages and that the payment was made to him for this leave without any break given.

The respondent submits that

The complainant received all of his annual leave entitlements.

The complainant resigned his employment on the 12th of July 2018 via text message and voicemail stating that he would not be back to work, the complainant did not show up for work after that date,

The complainant following his resignation submitted two sick certs covering the period from 13th of July to 27th of July and did not show up for work or communicate with the respondent any further after that date.

Section 19 is the relevant provision in relation to Annual Leave entitlements.

These claims were received on the 11th of January 2019 thus the cognisable period for these claims dates from the 12th of July 2018 to the 11th of January 2019.

The complainant in the present case did not return to work after the 12th of July 2018 and accordingly did not work any hours during the cognisable period of the complaint between the 12th of July 2018 to the 11th of January 2019.

In relation to Annual Leave entitlements, the cognisable period of the complaint (12th of July 2018 to the 11th of January 2019) encompasses the 2018 and 2019 annual leave year.

The complainant at the hearing did not provide any specifics in respect of his claim for annual leave.

The respondent advised the hearing that the complainant had received all of his annual leave entitlements and provided documentary evidence of same to the hearing.   The respondent added that the complainant had in fact been overpaid in respect of his annual leave entitlements and gave a breakdown of annual leave and holidays accrued in respect of his working hours as well as holidays taken by the complainant and payment made in lieu of annual leave.   The complainant advised the hearing that he did not have specifics or records of hours worked but he knew that he had worked excess hours which were not recorded.  

The complainant stated that the respondents records did not reflect the true position as regards hours worked but he could not provide any specifics in this regard. The complainant denied that the respondent had overpaid him.

On the basis of the information submitted, I am satisfied that the complainant did receive his annual leave entitlements

Accordingly based on the totality of the evidence adduced here I find this claim to be not well founded.

I find this claim to be not well founded.

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

CA-00024945-004

11/01/2019

The complainant submits that

He was dismissed while on certified sick leave from work

The respondent issued him with his P45 on 3rd of August 2018.

The respondent submits s that the complainant

The complainant resigned his employment on the 12th of July 2018 via text message and voicemail to the respondent stating that he would not be back to work, the complainant did not show up for work after that date,

The complainant following his resignation submitted two sick certs covering the period from 13th of July to 27th of July and did not show up for work or communicate with the respondent any further after that date.

The Relevant Law

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(1)   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 to all the circumstances, there were substantial grounds justifying the dismissal.

The complainant in the present case advised the hearing that he was dismissed by the respondent while on certified sick leave. The complainant told the hearing that he had submitted sick certs to the respondent from 13th of July to 20th of July 20th to 27th of July and further certs up to 29th of August 2018.

The respondent advised the hearing that the complainant had been intoxicated in the bar on its premises on the night of 11th of July 2018 and that he was removed from the premises by the manager Mr. F.   The respondent told the hearing that the complainant via voicemail and text message later that night and the next morning had notified the respondent that he would not be back to work.   Copies of the text messages from the complainant which stated that he would not be back to work were provided to the hearing.   The respondents replying text message stated that the respondent would arrange the necessary documents and the complainants p45 for the next payroll.   Following this the complainant sent another message stating that he would not be going anywhere for now but that he would be off for the next week with his back and would leave in a sick cert the next day.   The respondent advised the hearing that following this exchange of text messages the complainant did submit a sick cert the next day for the period up to 20th of July and another one up to the 27th of July 2018.     The sick certs were presented to the hearing and stated that the complainant was unfit for work as he was suffering from work-related stress. The respondent advised the hearing that after that date the complainant did not provide any certs and did not show up for work. The respondent advised the hearing that it had then issued the complainant with his p45 on the 3rd of August 2018.

The complainant disputes this and states that he provided 5 sick certs up to the end of August. The complainant stated that he had handed these certs in to reception in an envelope.   The respondent provided copies of two certs to the hearing which it states are the only certs it received from the complainant, these are dated 13th and 20th of July and certify complainants absence up to 27th of July 2018.

The respondent told the hearing that the complainant did not show up for work after the end of his certified sick leave and made no contact to explain his absence. The respondent stated that they then issued the complainants p45 on the 3rd of August 2018 and did not hear anything from the complainant until the 16th of October when he acknowledged receipt of the p45.

Section 4 of the Act goes on to state

(4) Without prejudice to the generality of subsection (1) of this section, 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.

……..

(6) In determining for the purposes of this Act, whether the 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 more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) 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 or the Labour Court, as the case may be, 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 referred to in section 14(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.”

At this point I am also mindful of the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 [S.I. No. 146/2000] which sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures and they include that:

1.       the details of the allegations or complaints be put to the employee concerned;

2.       the employee concerned be given the opportunity to respond fully to any such allegations or complaints;

3.       the employee concerned is given the opportunity to avail of representation; and

4.       the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints against him or her, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.

The complainant on the one hand advised the hearing that he had submitted a number of sick certs certifying him as unfit for work up to the end of August but on the other hand he also advised the hearing that he stopped sending in sick certs after he received his p45. The complainant told the hearing that he received the p45 by post and email and that it was dated 3rd of August 2018.   The complainant also stated that he had submitted sick certs up to 29th of August 2018 and provided a letter for his doctor stating that he had been absent form work due to work related stress from the 13th of July 2018 to the 29th of August 2018.

It is not disputed that that the complainant submitted two sick certs from 13th of July up to 27th of July 2018 and it is accepted that the respondent issued his p45 on the 3rd of August 2018.   Even if it is the case that the respondent had not received another sick cert from the complainant after the 27th of July 2018 the respondent did not make any contact with the complainant to ascertain his state of health or to engage with him in respect of his absence which up to the 27th of July had been certified as being absent due to work related stress.

It is also clear that the respondent made no contact with the complainant before issuing him with his p45 on the 3rd of August and that no procedures were followed in this regard.    

The respondent in this case is submitting that the complainant did not show up for work between the 27th of July and the 3rd of August and did not provide a sick cert to cover this period of absence.   Taking the respondents case at its height and even if the complainant had not submitted an additional sick cert to cover the period from 27th of July to the 3rd of August it is clear that the respondent proceed to dismiss the complainant without engaging with him and without seeking to ascertain the reason for his absence or providing him with any opportunity to respond to the respondents allegation that he had not shown up for work and had not provided any sick cert or reason for this absence.   This calls into question the reasonableness of the respondents actions.

The respondent provided a copy of its Company handbook to the hearing.   This Handbook sets out the disciplinary rules and procedures.    It is quite clear that the Respondent in the present case did not follow its own procedures as set out in the Disciplinary Procedure. The disciplinary procedure sets out the various stages of the Disciplinary procedure and also sets out the procedure to be followed in cases of dismissal following a series of warnings. It also sets out what happens in cases where an employee is subjected to summary dismissal following gross misconduct and sets out that a hearing will take place and that the employee will be given the opportunity to be accompanied to this hearing and to respond and state their case and will be provided with written reasons for dismissal following investigation. In the present case there was no investigation meeting; no disciplinary meeting; there was no hearing at all; the Complainant was dismissed without notice and without procedure.

I note the decision of the Employment Appeals Tribunal in Hennessy V Read & Write Shop Ltd UD192/1978 where it states that, “In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to: (i) the nature and extent of the enquiry carried out by the Respondent prior to the decision to dismiss the claimant; and (ii) the conclusion arrived at by the Respondent, that on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

Having examined the Respondent’s Grievance and Disciplinary Procedures it is clear that the Respondent in this case has not followed its own procedure at all.   The respondent at the hearing stated that the reason for issuing the complainants p45 was that the complainant had not shown up for work and had not provided a reason for his absence. I also note that this failure to show up for work happened at the end of a period where the complainant had submitted sick certs stating that he was unfit for work due to work related stress. The respondent in this case did not follow its own procedures in dealing with this matter and simply dismissed the Complainant without engaging without engaging with him.

Having said that, I note that the complainant prior to going on sick leave on 13th of July 2018 initially told the respondent via text message that he would not be back. He then followed this text message with another message stating that he was not going anywhere but would be off the following week with his back.   However, the sick certs which were provided by the complainant for the period 13th to 27th of July 2018 stated that he was unfit for work due to ‘work related stress’.   I am satisfied that the complainant by these actions may have caused the respondent to question whether or not he actually intended returning to work for them and by doing so did to some degree contribute to his own dismissal.

On balance, however I am satisfied that the respondent in this case failed to follow its own disciplinary procedures and failed to comply with fair procedures and natural justice before issuing the complainant with his p45.    In the circumstances, I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Act is well founded.

As regards mitigation of loss, the Complainant advised the hearing that he was unfit for work until the 29th of August 2018 having been certified as unfit for work by his doctor.

In addition, the complainant advised the hearing that he had since started up his own business and in doing so commenced preparations in support of setting up this business at the start of November 2018. The complainant when questioned was unable to provide any evidence of applications for or efforts to seek or secure alternative employment.     He states that he began preparations for starting his own business at the start of November 2018 and that he is now employed in that business since December 2018.  

In considering whether the complainant has mitigated his loss I note the decision of the Employment Appeals Tribunal in the case Sheehan v Continental Administration Co Ltd (UD858/1999) where it stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

It is clear that there is a legal duty to mitigate financial loss by taking diligent steps to secure comparable alternative employment. I also note the decision in Burke v. Superior Express limited UD 1227/2014 where the EAT held that the standard required is a high one.

Taking all of this into consideration, I am not convinced that the complainant’s has made sufficient efforts to mitigate his loss.  

While I find that the complaint is well founded, the complainant was unable to provide any evidence that he had attempted to mitigate his losses by seeking alternative employment elsewhere. In circumstances where the complainant has failed to mitigate his loss, the maximum compensation payable to the complainant is four weeks gross pay.  In addition, I am satisfied that any award should reflect my finding that the complainant by his actions did to some degree contribute to his own dismissal.

On the basis of my findings above I declare the complaint to be well founded.

I direct the Respondent to pay the Complainant compensation of €2,500 (the equivalent of three weeks’ pay) which I determine to be just and equitable having regard to all of the circumstances of this case.

This award of compensation takes into account the complainants contribution to his own dismissal as well as his failure to mitigate his loss.