ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00019751

Parties:

Complaint(s):

Date of Adjudication Hearing: 29/08/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and 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 from a Russia National refers to an alleged breach of underpayment of wages as set out in a Sectoral Employment Order (SEO) related to the construction industry; a complaint of unfair dismissal; and a complaint for non-payment of minimum notice when the Complainant’s employment terminated.

The Respondent maintained the Complainant was not entitled to minimum rates of pay as set out in an SEO, that he resigned his position and accordingly was not unfairly dismissed and therefore was not entitled to minimum notice.

Summary of Complainant’s Case:

CA-00026230-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015

The Complainant stated he commenced work on 13th January 2015 as a Scaffolder, Telly Porter Driver, Digger Driver and Labourer, where he would have worked on various sites around the country. The Complainant maintained he held a number of qualifications relating to certificate and telescopic handling operations, construction skills certificate, a scaffolder registration card which expired on 12th March 2017, an excavator training course, a construction skills certificate scheme for experienced operator regarding telescopic handling, and a construction skills certificate as an experienced operator in scaffolding basic which expires in March 2022.

The Complainant submitted a document dated 13th January 2015 referring to his employment which indicated that he started on that date and the gross wage was €500, to be paid weekly. A contract of employment issued to him referred to his job title as a Scaffolder and Apprentice Stone Mason/Blocklayer. The Complainant submitted thst he was involved in general operative duties including building of walls.

The Complainant maintained that during the last week of September 2018, he had been admitted to Hospital following a non-work related incident where he had almost choked on a piece of food and was on sick leave for approximately 1 week. He stated this situation put him under financial pressure as he was not paid for the week he was absent from work. The Complainant submitted that when he returned to work on 1st October 2018, he explained to a manager that he was stressed with the financial situation where he had to pay insurance, hospital bills, mortgage etc but that the Manager was totally dismissive and had no sympathy for him. He maintained that the Manager laughed in his face saying “hospitals are free”. The Complainant submitted that he felt overwhelmed by this reaction and lack of empathy and he decided it might be best that he resign. The Complainant advised that when he finished on site that day, he drove to the office and he spoke to a member of office staff and he asked her for a letter of resignation. He maintained the office staff had printed off a standard letter putting in the date and his name and gave him the letter which he took home. The Complainant retained the original copy of that letter.

The Complainant submitted in or around early October 2018 he subsequently became aware through enquiries with his Trade Union that he was being underpaid since a Sectoral Employment Order (SEO) came into effect on 19th October 2017. The Complainant submitted that he was being paid €12.50 per hour at that time but that under terms the SEO a General Operative worker was entitled to a rate of pay of €17.04 per hour.

The Complainant advised that his Trade Union wrote to the Respondent on 30th October 2018 regarding the underpayment of wages and that he also informed the Respondent of the underpayment seeking for it to be paid, and for back payments.

The Complainant submitted that the Respondent offered to raise his pay to €120 per day (€13.50 per hour) but this was a sum that was still below the minimum pay. The Complainant also maintained that nothing was done about the back payment dating from October of 2017. The Complainant submitted copies of payslips for 2017 and 2018, as well as email dated on 16th November 2018 setting out pay discrepancies from the 7th October 2017 to 2nd November 2018. He maintained his Trade Union Representative also emailed correspondence on 14th November 2018 which estimated that he had been underpaid €7,128.27 before tax, based on a 39 hour week and the correct SEO rate.

The Complainant maintained on 1st November 2018 he was asked by the Office Administrator to sign a one page document headed “Amendments to Terms and Conditions of Employment” and he was told this was a new contract. The Complainant said he did not sign the document as he wanted to take advice from his Trade Union. He asked for a copy of the document and when he received a fully copy, he noted that it was dated 15th October 2018 and the job title was described as Yard Operative/Van Driver at a rate of €13.50 per hour. The Complainant did not sign the document.

The Complainant continued to pursue his entitlements to be paid the SEO rate and he met a manager on 5th November 2018 who allegedly told him that his old contract was dead and if he didn’t sign a new agreement he could not work and that he would have big problems if he did not sign the new agreement. The Complainant said he rang his Union where he was advised to write on the contract that it was signed under duress. The Complainant also maintained that he was informed by the manager that if the contract was not signed his old contract would be terminated and he would have no more work with the company.

The Complainant submitted he was asked to come to a meeting on 6th November 2018 and as he did not have good English he brought his son to the meeting. At the meeting the Complainant was told by the Respondent that he had been advised wrongly the previous day about the rate of pay. The Complainant also contended that the Respondent stated it could not have letters coming from the Union. The Respondent told the Complainant it was agreeable to pay the him €600.00 per week or €120.00 per day going forward on the proviso that the Complainant would tell the Union the matter had been resolved. The Complainant advised the Respondent that he needed to talk to the Union and his wife and he would come back to the Respondent. The Complainant maintained that he was told he had to come back the following morning with a decision.

The Complainant hurt his back at work that day and subsequently after speaking to his wife and the Union he text the Respondent that the hourly rate of pay was still an underpayment, and he advised the Respondent to contact the Union. The Complainant submitted that he had received a text back form the Respondent advising that the Respondent was accepting his resignation (see complaint 002 below). The Complainant then sent a text to the Respondent advising that due to back pain he would be taking sick leave and would forward a medical certificate to verify he was unfit to work from 7th November to 9th November and from 12th November to 26th November 2018.

The Complainant submitted at a further meeting held on 14th November 2018 the offer of €120.00 per day was made again without any reference to the hourly rate of pay as set out in the SEO of €17.04 per hour. The Complainant maintained the Respondent made it clear to him that he either accept the offer or that he would be issued with a P45. The Complainant maintained that he told the Respondent the offer was unacceptable and he was seeking back pay dating from the commencement of the SEO, and the pay going forward should be €17.04 per hour, otherwise he would have to proceed with his complaint through the Union.

The Complainant submitted that he was never paid the correct payment as laid out in the SEO. He submitted his loss of earnings as a result of the underpayment amounted to €15,389.33.

CA-00026230-002Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Complainant submitted that after a discussion with a manager in early October 2018 about his hospital bills he felt the manager was unempathetic so at the end of that day’s work he called into the office spoke to the Administrator about a letter of resignation. The Complainant maintained that he did not submit that letter of resignation. He maintained the administrator had printed off a standard letter putting in the date and his name and gave him the letter which he took home to discuss the matter with his wife.

The Complainant advised that he discussed the matter with his wife and explained to her what had happened and advised she was alarmed that he had planned to resign pointing out the family had to pay bills etc. The Complainant’s wife gave evidence at the hearing verifying this conversation tool place and tha the Complainant had decided not to submit his letter of resignation. The Complainant said that having calmed down he decided not to hand in the letter of resignation and he continues to hold the said letter, which he submitted to the hearing. The Complainant maintained from 1st October 2018 to 1st November 2018 he continued to work as normal apart from taking some holiday time, and that there was no mention of his alleged resignation as he had not resigned during that period.

The Complainant submitted that he continued to pursue the payment of the SEO and on the 5th November 2018 a manager told him that his old contract was dead and if he didn’t sign a new agreement for €600 per week he could not work and that he would have big problems if he didn’t sign the new agreement. The Complainant stated that he was informed by the Manager that if the contract was not signed his old contract would be terminated and he would have no more work with the company. The Complainant contacted his Union who advised him to write on the contract that it was signed under duress.

The Complainant advised that he was asked to attend an early morning meeting on 6th November 2018. He attended that meeting with his son as the Complainant has poor English. The Complainant submitted that at this meeting he was told by the Respondent that the he had been wrongly advised about the rate of pay that he should be getting and that the Respondent could not have letters coming from the Union. The Complainant submitted that the Respondent was agreeable to pay the Complainant €600 per week going forward on the proviso that the Complainant would tell his Union that the matter had been resolved. The Complainant advised the Respondent that he needed to talk to the union and his wife, and he would come back to the Respondent. The Complainant maintained that he was told he had to come back the following morning with a decision. The Complainant contended that at no point during that meeting was there any suggestion or mention made to him by the Respondent that he had resigned. The Complainant’s son provided evidence at the meeting to confirm this version of events. During work that day the Complainant developed back pain, but he worked on. However, the back pain worsened later that night and he attended his GP on 7th November 2018 where he was provided with medical certificates.

The Complainant maintained when he spoke to his Union he was advised what he was offered was €13.33 per hour which was a substantial underpayment under the Sectoral Employment Order 2017. The Complainant sent the Respondent a text message stating that he had talked to his wife and the Union, and that the €120 a day amounted to an underpayment, and where he advised the Respondent to contact the Union if it had any queries. The Complainant maintained that the Respondent sent him back a text stating it accepted the Complainant’s resignation. The Complainant said he was shocked at the response and replied by text asking, “what was the resignation about”.

The Complainant subsequently forwarded a text message to the Respondent informing him that due to back pain he would be unable to report for work the following day. Medical certificates were submitted to verify he was unfit to work from 7th November to 9th November, and from 12th November to 26th November 2018.

The Complainant said he was subsequently invited to attend a meeting by the Respondent on 14th November 2018, and he attended with his son. He submitted that at the meeting the offer of €120 per day was made again without any reference to the hourly rate of pay as set out in the SEO of €17.04 per hour. The Complainant maintained the Respondent made it clear to him that he either accept the offer or that he would be issued with a P45. The Complainant submitted that he told the Respondent the offer was unacceptable, and he was also seeking back pay dating from the commencement of the SEO, and the correct rate of pay of €17.04 per hour going forward, otherwise he would have to proceed with his complaint through the Union. The Complainant submitted the Respondent advised that if that was his position there would be no further negotiation and he would be issued with his P45 in accordance with his resignation.

The Complainant maintained that he had never resigned and requested that he be shown the letter of resignation where the Respondent called the Office Administrator into the meeting who confirmed that the Complainant had handed in his resignation. The Complainant sought to seek the letter of resignation, but the Respondent refused to show him the letter saying it would be shown to a solicitor in due course. The Complainant submitted that the minutes of that meeting which was subsequently provided was not accurate and was misleading. He advised that the company had never been willing to pay him the €17.04 per hour going forward. He stated the meeting ended normally and he would have finished by saying “see you, goodbye”.

The Complainant submitted that on 16th November 2018, he received an email from the Respondent attaching a P45 and payslip where the P45 was dated 6th November 2018.

The Complainant maintained that he continued working for over a month after asking for the letter of resignation, and he was in the process of negotiating with his employer about his wages but he was not in agreement with the rate of pay that was being offered. As agreement could not be made the Complainant submitted that he was seeking to progress his claim through his Union and during these discussions the Respondent referred to his letter of resignation and dismissed the Complainant. The Complainant therefore submitted that he had been unfairly dismissed as he never issued a letter of resignation, and at the time of his dismissal he was still in the process of negotiating his rate of pay with the Respondent.

The Complainant submitted that his weekly loss of earnings amounted to €15,389 gross. Taking into account of the the work the Complainant has had since 1st April 2019, the Respondent submitted that the Complainant’s future loss of earnings amounted to €14,698.00 and therefore its overall gross loss of earnings would amount of €30,087.

CA-00026230-003Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Complainant advised that he was dismissed without notice and having worked with the employer since 13th January 2015, he was entitled to net payment in lieu of notice of 2 weeks’ pay.

Summary of Respondent’s Case:

CA-00026230-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

The Respondent submitted that the Complainant was employed as a Yard Operative/Driver and this position does not qualify as a category 1 construction worker as claimed by the Complainant and therefore the SEO rates were not applicable. The Respondent contended that the Complainant was no longer employed as a scaffolder and that his skills were not sufficient to be employed as a General Operative. It submitted the Complainant did not build walls, could not be deployed as an excavator digger due to his skills, and acted as a Yard Operative and Driver bringing materials to and from sites.

The Respondent maintained that the Complainant submitted a letter of resignation on 1st October 2018 giving two weeks’ notice. It acknowledged that it subsequently met with the Complainant on 10th October 2018 and offered him a new rate of pay of €13.50 per hour. The Respondent submitted that the Complainant was then granted holidays at short notice from 19th October to 26th October 2018 and on 31st October 2018 his Trade Union met with management in relation to the Complainant’s pay claim.

The Respondent advised that on 6th November 2018 it met with the Complainant again and at this stage the Complainant was seeking €15.00 per hour. After some consideration, management agreed to offer him this rate. The Respondent submitted that the Complainant stated he would speak to his wife that evening and sign a new contract the following day. The Respondent submitted that the Complainant continued working for the rest of the day and did not report any back injuries. It advised that later that evening it received a text from the Complainant advising he had spoken to his wife and his Trade Union and told management that the €120 per day was an underpayment. At that point, the Respondent advised that it would accept the Complainant’s resignation as a rate of pay could not be agreed upon.

The Respondent advised that on 7th November 2018, it received a text from the Complainant stating he was suffering from back pain and a medical certificate was presented to the Office Administrator on 12th November 2018 covering the period 7th to 9th November 2018. On 12th November 2018, the Respondent met with the Union to discuss the Complainant’s complaint, and on 14th November 2018 subsequent to a meeting with the Complainant’s Union, management requested a meeting with the Complainant to make a renewed offer of €17.04 per hour. The Respondent submitted that shortly after agreeing to come in for that meeting, an email was received with further medical certs from 12th November to 26th November 2018. On 14th November the Complainant arrived for a meeting accompanied with his son and agreement was not met with regards to the offer of €17.04 per hour. As a consequence, the Respondent submitted a P45 to the Complainant in response to his earlier letter of resignation maintaining that no agreement could be made about keeping the Complainant in the company.

CA-00026230-002Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Respondent denied that it dismissed the Complainant. It submitted that the Complainant issued his resignation letter on 1st October 2018, and as no agreement could be made with regards to a rate of pay, even after offering the Complainant €17.04, that the Respondent decided to accept the letter of resignation on 14th November 2018 and wrote to the Complainant on 16th November 2018 issuing a P45 and accepting the Complainant resignation.

The Respondent submitted a copy of what it advised was the letter of resignation dated 1st October 2018 where the Complainant had signed the letter stating that he wished to terminate his contract of employment with the company on 15th October 2018. The Office Administrator in her evidence said that she completed the resignation letter with the Complainant who handed it in on 1st October 2018. She submitted that on 10th October 2018 her manager had a meeting with the Complainant where she understood a new rate of pay was agreed, and on 12th October 2018 the Complainant came back to her office asking for the letter of resignation which she returned to him but kept a copy on the file.

The Respondent also submitted records of minutes of a meeting of 14th November 2018 which it had with the Complainant. It advised that at this meeting the Complainant was offered €17.04 per hour but that it would not be backdated, and the Complainant stormed out. The Respondent contended it was not provided with an opportunity to ask the Complainant to sign the meeting records. Notwithstanding, the Respondent did not forward these meeting notes to the Complainant.

The Respondent also submitted a statement of the terms of employment for the Complainant stating that the Complainant was employed as a Yard Operative/Van Driver and where these terms and conditions are dated 15th October 2018, but are not signed by either party.

The Respondent also submitted a series of text messages between management and the Complainant which on 19th October 2018 the Complainant thanked a Director for his good wages, and he was asking about his holiday pay. It advised that it received a further text from the Complainant advising that he had talked to his wife and the Union and that he stated the €120 per day that was offered is an underpayment and if Respondent has any queries the matter should be directed to the Union. This text is followed by a text from the Director which states “I accept your resignation” and where the Complainant replies “Sorry, may I ask what resignation you are about (sic)”. The string of text messages submitted by the Respondent also indicated that on 16th November 2018, the Complainant had sent a text to the Respondent’s Director querying why he got an email with a payslip and a P45 dated 6th November 2018. In this text the Complainant had submitted that he had continued to work past 6th November 2018.

The Respondent also submitted that photographs of its Director’s house being built had been sent to the Director by the Complainant who inferred to the Director that the photos would be sent to the County Council for breach of planning.  

The Respondent contended that the figure of compensation being sought by the Complainant represents the gross earnings the Complainant would have earned from 12th November 2018 up to the date of the hearing, and that as the Complainant is in employment elsewhere that the losses are overstated.

CA-00026230-003Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Respondent submitted that as the Com presigned he had not been dismissed and therefore it was not in breach of the Minimum Notice & Terms of Employment Act, 1973.

Findings and Conclusions:

CA-00026230-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

Having reviewed the evidence, I am satisfied the Complainant commenced employment on 13th January 2015 and was paid a rate of €12.50 per hour for a 40 hour week. The unsigned contract of employment stated he was employed as a Scaffolder/Apprentice Bricklayer and where the rates of pay is cognate to that as laid out in the contract for Trainee Stonemason rate. The rate for a Yard Operative/ Driver is stated as €8.65 per hour which is a much lower a rate of pay than the Complainant was in receipt of.

The evidence provided further supports that no changes relating to the Complainant’s pay or position occurred prior to him asking for an increase as per the Sectoral Employment Order.   For all intents and purposes, I am satisfied the evidence supports that the Complainant was in fact employed as a General Operative with more than 1 years’ experience. The Complainant provided evidence of his worksheets which indicated he was working on sites involved in general operative type duties in addition to wall building. It is noted the Respondent disputes that the Complainant was deployed on General Operative duties, nevertheless it is clear he was always paid in excess of the Yard Operative/ Driver rate of pay, and no evidence was presented to corroborate the Complainant had agreed to any change in his work practices or that there was a change in his job title, other than a contested revised contracted of employment that was issued to the Complainant during the time the Complainant was seeking to be paid the SEO rate of pay for General Operative.

The Respondent argued that the Complainant was not entitled to be paid in accordance with the SEO as the Complainant was a Driver/Yard Operative and when he sought an increase in his pay in October 2018 it offered him an increase to €13.50 per hour. The Respondent acknowledged representations were made by the Complainant’s Trade Union and where €15 per hour was discussed by Respondent with the Complainant, and ultimately the Respondent maintains it offered the Complainant €17.04per, but that the Complainant left a meeting on 14th November 2017 when this was offered. I find that this offer being made by the Respondent, after it had discussions with the Trade Union, is an acknowledgement that the Complainant was in fact employed as a General Operative with over 1 years’ experience. I am also satisfied that the dispute continued at this time as the Respondent was not in a position to agree a back payment to the Complainant.

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 therefore find that with effect from 19th October 2017 the Complainant was entitled to be paid as a Category 1 Worker (General Operative with more than 1 years’ experience) which is €17.04 per hour. I therefore uphold the complaint, and in accordance with the Act I find that the Complainant was entitled to receive this pay on commencement of the SEO.

CA-00026230-002Complaint seeking adjudication by the Workplace Relations Commission 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 presented, I am satisfied that the Complainant was in dispute with the Respondent with regards to his rate of pay from the start of October 2018, and where the Complainant would have sought a rate of pay for General Operative in accordance with an SEO that provided for €17.04 per hour for General Operatives with over one years’ experience.

The evidence supports that following a period of hospitalisation and sick leave in September 2018 due to a non-work related incident, the Complainant was discussing his financial situation with a Manager on 1st October 2018 and where he felt the Manager was not empathetic to his situation. This was upsetting for the Complainant who acknowledged he went to the office and spoke to the Office Administrator and asked for a letter of resignation. The parties contend the evidence in relation to the letter of resignation.

The Complainant advised he did not sign the resignation letter that day but took a template of the letter home to discuss the situation with his wife. Having had that discussion, he decided not to submit the letter of resignation. He also spoke to his Trade Union who subsequently entered discussions with the Respondent regarding an increase in the Complainant’s rate of pay.

For its part the Respondent contended that a draft letter of resignation that was given to the Complainant on 1st October 2019 by the Office Administrator was signed on that day by the Complainant with a resignation date of 15th October 2015 being stated, and this letter was put on file.

Two versions of the resignation letter were presented at the hearing. They are slightly different. One version, which the Complainant maintains was provided to him as a template, has a space for an applicant to add their name and the resignation date by hand, and a space to sign and date the document. The second version has the Complainant’s name and the date of resignation typed with a signature purporting to be that of the Complainant’s, and a handwritten date of when the notice of resignation was submitted. The Respondent submitted that the second version was the actual letter of resignation it held on file. The Complainant maintained it was the first letter that was given to him was the document in contention, but that he did not return it.

In her evidence the Office Administrator advised she would have typed the resignation letter and it was signed by the Complainant, and she would have copied it before the Complainant left her office on 1st October 2018. The Respondent could not account for the other version of the letter presented by the Complainant.  

Having compared both versions, the version presented by Complainant contains a signature that is representative of the signature more consistently used in documents the Complainant would have signed. I therefore prefer the version of events provided by the Complainant and find that he did not confirm his resignation on 1st October 2018 as maintained by the Respondent. He made an inquiry, took a template of the letter home and on the balance of probabilities he never saw or signed the typed version of the resignation letter that was presented in evidence by the Respondent.

Notwithstanding, even if the Complainant did return a signed letter indicating his resignation on 15th October 2018, he did not resign on that date. He continued working with the Complainant, albeit he took some leave over that period, and returned to work after the 15th October 2018 following his period of annual leave. He was also involved in negotiations with the Respondent for a pay rise from early November 2018, up to 14th November 2018. The Complainant contends that the Respondent was only prepared to offer him €13.50 per hour and would not pay any back payments from October 2017 to meet the shortfall in his rate of pay which he believed he was due as per the SEO. As an agreement could not be made over this time it is noted that the Respondent advised the Complainant by text that they were accepting his resignation. The Complainant responded by text asking what resignation the Respondent was referring to as the Complainant maintained he had not issued his letter of resignation. Nevertheless, the Respondent was issued his P45 on 14th November 2018 where th date of termination was stated as 6th November 2018.

I am satisfied that the Respondent decided to dismiss the Complainant on 14th November 2018 by advising him he would be issued a P45. The Complainant received his P45 on 16th November 2018 when he was on sick leave, and it was dated 6th November 2018. The 6th November 2018 was the date the Complainant had a meeting with the Respondent and where no agreement was reached on his pay increase at that time. The Complainant went sick the following day with a sore back.

The decision to tell the Complainant that his resignation was being accepted occurred some six weeks after it was supposed to have been submitted, and some eight days after the actual date of termination stated on the P45. Whilst the Complainant was on sick leave during this period, there was no indication prior to 16th November 2018 that the Respondent was accepting the Complainant’s resignation.

The evidence suggest that the Respondent had become frustrated with the negotiations and decided to dismiss him on 14th November 2018 on the basis that a resignation letter issued some 6 weeks earlier was still relevant.

In particular I note that as a Russian national the Complainant needed his son to assist him in interpreting meetings he attended with the Respondent. As such an onus was on the Respondent to ensure the Complainant fully understood that the Respondent wished to rely upon a discussion the Complainant had with the Office Administrator about his resignation. There is no evidence to corroborate that the Respondent discussed the Complainant’s resignation prior to 14th November 2018, nor did it outline to the Complainant that it would rely on his alleged intention to resign ont he 15th October 2018 despite the fact the Complainant remained employed and was working up to his sick leave on 7th November 2018, and continued in negotiations with the Respondent about his pay entitlements for a further week.

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 Unfair Dismissals Act. I therefore find the decision to dismiss the Complainant amounted to an unfair dismissal. I further find 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.

CA-00026230-003Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

Section 4 (b) 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. if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks.

I find that the Complainant received summary notice of the termination of employment by text 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.

Decision:

CA-00026230-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

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. In accordance with Section 23(2) of the Industrial Relations (Amendment) Act 2015, I have upheld the complaint and found that the Complainant was entitled to be paid €4.54 extra per hour for a 40 hour week over 56 weeks.

Accordingly, I award the Complainant compensation of €10,170 which is the amount owed for his entitlements under the SEO from 19th October 2017 until his dismissal, and where I consider this amount as being just and equitable having regard to all the circumstances.

CA-00026230-002Complaint seeking adjudication by the Workplace Relations Commission 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 this case I find that the Complainant, a Russian National was dismissed on the premise he had issued a letter of resignation some six week earlier, but had not resigned on the date of the supposed resignation and continued in service for some six weeks. He remained in employment without the Respondent having any meaningful discussions with the Complainant about the resignation.

I prefer the Complainant’s evidence regarding the letter of resignation compared to the Respondent’s evidence. Whilst the Complainant may have expressed an interest to resign, I do not find that he did in fact resign, or that the Respondent treated the Complainant as having resigned until it decided the Complainant’s persistence in seeking payments under the SEO was not going to be resolved internally. It was at that time the Respondent dismissed the Complainant on the premise that he had tendered his resignation. The Respondent did not adhere to any reasonable procedure in relation to dismissing the Complainant.

Having found that the Complainant was unfairly dismissed I must consider the evidence in relation to his mitigation of losses. His pay entitlement from 19th October 2017 was €17.04 per hour. The Complainant submitted that he had found alternative employment from 23rd November 2018 to 29th March 2018, with no work available to him during for five weeks during this period.   His average rate of pay per week between 23rd November 2018 and 1st April was €357. The Complainant found full time employment on 1st April 2019 where his ongoing loss of earnings amounts to approximately €147 per week.    

Therefore, I consider it just and equitable in all the circumstances to award the Complainant €25,000 compensation (subject to any lawful deductions) reflecting the actual losses, and the potential losses.

CA-00026230-003Complaint seeking adjudication by the Workplace Relations Commission 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 two weeks’ pay where his standard week was 40 hours per week at €17.04 per hour, which represents his statutory notice, and amounts to €1,363.20.

Dated: 11th March, 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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