ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00024248
Parties:
| Complainant | Respondent |
Anonymised Parties | Deli Assistant | Butcher shop |
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-00030992-001 | 19/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00030992-002 | 19/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00030992-003 | 19/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00030992-006 | 19/09/2019 |
Date of Adjudication Hearing: 19/11/2019
Workplace Relations Commission Adjudication Officer: Patricia Owens
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant was employed as a Deli Assistant by the Respondent from 1st May 2009 up to the date of her dismissal on 27th April 2019. The Complainant alleges that she was summarily dismissed by the Respondent due to a personal relationship, that she did not receive payment of her notice entitlements under Section 11 of the Minimum Notice & Terms of Employment Act 1973, that throughout her employment the Respondent failed to provide her with a statement of the terms and conditions of employment under Section 7 of the Terms of Employment Act and that the Respondent did not pay her for annual leave outstanding at the time of her dismissal. The Respondent did not attend the scheduled hearing. |
Summary of Complainant’s Case:
CA- 00030992-001 – Complaint of Unfair Dismissal under Section 8 of the Unfair Dismissals Act, 1977 The Complainant submits that she was on annual leave to celebrate her birthday and that at those celebrations an altercation took place between her partner and the Respondent. She submits that she apologised for the incident and that her partner did so also and replaced goods damaged during the altercation. While still on annual leave she attended the workplace on 27th April 2019 to collect her wages where the respondent advised her that she would not be getting paid. She submits that he further advised her that “As long as you are with him there is no job here for you.” The Complainant submits that the respondent grabbed her by the shoulders and pushed her out the door. She submits that she notified the garda of this incident, but they were unable to prosecute due to lack of evidence. She submits that the Respondent attended her home and returned the replacement goods which had been given to him by her partner. She submits that the Respondent was aggressive and shouting during this encounter. The Complainant submits that the respondent did not hold any investigation into matters which gave rise to the dismissal nor did he convene any disciplinary hearing. This failure to follow due process and the alleged aggressive and intimidating behaviour of the Respondent, she submits, demonstrates an unfair dismissal within the meaning of the Act. CA- 00030992-002 – Complaint that the Respondent failed to provide the Complainant with a statement of her terms and conditions under Section 7 of the Terms of Employment (Information) Act, 1994 The Complainant submits that she never received a statement of terms and conditions or a contract of employment. CA- 00030092-003 – Complaint that the Respondent did not pay the Complainant her notice entitlement in accordance with Section 11 of the Minimum Notice & Terms of Employment Act,1973 The Complainant submits that the manner of her dismissal did not allow her to work her notice period and that the respondent did not issue her with any pay following the date of her dismissal. She submits that based on her years of service she is entitled to 6 weeks pay in lieu of notice. CA – 00030092-006 - Complaint that the respondent failed to pay her for annual leave outstanding at the time of termination of her employment in accordance with Section 27 of the Organisation of Working Time Act, 1997. The Complainant submits that she attended the workplace on 27TH April 2019 to collect her pay for that week. This was a week of pre-approved annual leave. The Complainant is seeking one weeks pay for annual leave outstanding. |
Summary of Respondent’s Case:
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Findings and Conclusions:
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.
CA- 00030992-001 – Complaint of Unfair Dismissal under Section 8 of the Unfair Dismissals Act, 1977 The Respondent did not attend the scheduled hearing. I am satisfied that the said Respondent was informed in writing of the date, time and place at which the hearing to investigate the complaint would be held. In these circumstances and in the absence of any evidence to the contrary having been adduced before me, I must conclude that the within complaint is well-founded and I decide accordingly. I note that the Complainant commenced new employment the week of 17th November 2019 and I commend her on her efforts to mitigate her loss. In all these circumstances it is my decision to award the Complainant the sum of €11,000 as compensation for the unfair dismissal and her loss up to the date of new employment. CA- 00030992-002 – Complaint that the Respondent failed to provide the Complainant with a statement of her terms and conditions under Section 7 of the Terms of Employment (Information) Act, 1994 The Respondent did not attend the scheduled hearing. I am satisfied that the said Respondent was informed in writing of the date, time and place at which the hearing to investigate the complaint would be held. In these circumstances and in the absence of any evidence to the contrary having been adduced before me, I must conclude that the within complaint is well-founded and I decide accordingly. In these circumstances it is my decision to award the Complainant the sum of €1600 as compensation in this matter. CA- 00030092-003 – Complaint that the Respondent did not pay the Complainant her notice entitlement in accordance with Section 11 of the Minimum Notice & Terms of Employment Act,1973 The Respondent did not attend the scheduled hearing. I am satisfied that the said Respondent was informed in writing of the date, time and place at which the hearing to investigate the complaint would be held. In these circumstances and in the absence of any evidence to the contrary having been adduced before me, I must conclude that the within complaint is well-founded and I decide accordingly. In these circumstances it is my decision to award the Complainant the sum of €2400 as payment in lieu of notice at termination of employment. CA – 00030092-006 - Complaint that the Respondent failed to pay her for annual leave outstanding at the time of termination of her employment in accordance with Section 27 of the Organisation of Working Time Act, 1997. The Respondent did not attend the scheduled hearing. I am satisfied that the said Respondent was informed in writing of the date, time and place at which the hearing to investigate the complaint would be held. In these circumstances and in the absence of any evidence to the contrary having been adduced before me, I must conclude that the within complaint is well-founded and I decide accordingly. In these circumstances it is my decision to award the Complainant the sum of €400 as payment for annual leave outstanding at termination of employment.
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Dated: 23-03-2020
Workplace Relations Commission Adjudication Officer: Patricia Owens
Key Words:
Unfair Dismissal, No statement of Terms and Conditions of Employment, Terms of Employment Information Act, Minimum Notice, annual leave |