ADJ-00021325

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00021325

Parties:

Complaints:

Date of Adjudication Hearing: 20/09/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

Date of Adjudication Hearing: 20/09/2019

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:

The Complainant was employed as an Industrial Cleaner from 15th July 2015 until 29th October 2018. The Complainant raised a number of complaints with regards to payment of wages, receipt of Sunday premium, minimum rates of pay as set out in Employment Regulation Order, failure to receive terms and conditions of employment, and complaint of unfair dismissal.

Summary of Complainant’s Case:

CA-00028090-001 Complaint under section 24 of the National Minimum Wage Act, 2000

The Complainant submitted that he did not receive an increase in the minimum wage since 2017and until his employment terminated on 29th October 2018. The Complainant submitted that he was paid €9.55 per hour during 2018. He acknowledged he had received the correct rate of pay but was not paid a premium for Sunday work- see complaint 002 below.

CA-00028090-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

The Complainant advised that he would have worked on weekends where he was required on the main to clean chicken sheds. He maintained when he worked on weekends, he did not receive a Sunday Premium for working on the Sunday. The Complainant maintained that he would have received a minimum of €9.55 per hour but there was no differential between the rates per hour he received on a Sunday to that of any other day of the week. He acknowledged at the hearing that he only worked two Sundays over the period referenced. 

CA-00028090-005 Complaint under section 6 of the Payment of Wages Act, 1991

The Complainant maintained he did not receive payment of his wages in lieu of his notice. The Complainant submitted that he had been unfairly dismissed without notice on 29th October 2018. He therefore maintained that the Respondent unlawfully deduced his payment in lieu of notice.                                                                                                                     

CA-00028090-007 Complaint under Section 45A of the Industrial Relations Act, 1946

This complaint was withdrawn by the Complainant at the hearing.             

CA-00028090-008 Complaint under Section 45A of the Industrial Relations Act, 1946

This Complainant submitted that he did not receive written information of his terms and conditions of employment as required under the Employment Regulation Order which states all employers will, on request or within two months of the commencement of employment, provide each employee with a written statement of the employee’s terms of employment in compliance with the Terms of Employment (Information) Act, 1994.                                                                                                                    

CA-00028090-009 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant maintained that he was unfairly dismissed on 29th October 2018. He believed two issues led to his dismissal. The Complainant submitted that the first issue referred to an invoice the Respondent received after the Complainant had stayed in a hotel overnight for work that was being completed at a client’s site.   The Hotel bill included at €200 charge for smoking in the room. The Complainant maintained he did not smoke in the room and therefore he did not pay the bill. However, he submitted that when the Respondent received the bill the Respondent advised him that this would have to be paid for out of his wages. Following this issue, the Complainant advised that on 29th October 2018 whilst he was in the process of selling a mobile home that was located on the premises of the Respondent, that the Complainant and Respondent had an altercation. The altercation related to the sale of the mobile home where the Respondent had outlined defects to a potential purchaser because the Respondent had a concern that after the sale the purchaser may come back to him rather than to the Complainant as the mobile home was sold from his site. During the altercation the Complainant objected to the fact that the Respondent had highlighted defects to the mobile home. In the course of the discussions the Complainant maintains that he was told by the Respondent that he would be receiving his P45. Following this incident the Complainant maintained he received no further work and subsequently received his P45. He therefore maintained he was unfairly dismissed. The Complainant in his evidence acknowledged that there was an altercation between the parties and where he would have used language towards the Respondent. However, he submitted that the sale of the mobile home was a private matter and was not related to his employment. He submitted that it was the Respondent who said to him “I am taking it that you are quitting. I will organise your P45” and this amounted to a decision to dismiss the Complainant. The Complainant advised that he subsequently text the Respondent seeking clarification on the matter and asking the Respondent what the situation was with his P45, and that he was available to work. The Complainant advised the Respondent that he would not contact the Respondent again by text and he was awaiting a clarification of the matter. The Complainant submitted he received no further correspondence from the Respondent and subsequently received his P45 which included all monies due to him. The €200 for the cleaning of the hotel had not been deducted from his wages. The Complainant maintained that there was no process regarding a decision to dismiss him, and there was no attempt made by the Respondent to resolve matters following the altercation which was not related to a work situation. The Complainant therefore maintained that the decision to dismiss had followed on from the statement by the Respondent on 29th October 2018 that he was taking it the Complainant was quitting and that he was given his P45. The Complainant maintained he had never quit the job and when he contacted the Respondent later on 29th October 2018 and sought further work advising he was available for work that there was no follow on or attempt by the Respondent to address matters. He therefore maintained that he was unfairly dismissed without any process, and the dismissal was unfair. The Complainant submitted that he had been seeking employment since his dismissal where he has been receiving social welfare benefits and has adhered to the procedures in seeking a job but has not been successful. The Complainant advised that he has submitted CVs on a monthly basis without success. He advised that since his dismissal he had moved from his location but was still seeking employment. He denied that he had undertaken any other work.

Summary of Respondent’s Case: 

CA-00028090-001 Complaint under section 24 of the National Minimum Wage Act, 2000             

This Respondent advised that he did pay the Complainant the correct rate of pay of €9.5 per hour. 

CA-00028090-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

The Respondent submitted that the Complainant worked two Sundays during 2018. The Respondent maintained that whilst the Complainant worked 5¾ hours over those two Sundays he would have received 7 ½ to 8 hours pay in total. It maintained that the Complainant enjoyed a lunch break and tea break during the day for which he was paid. On that basis the Respondents submitted that the Complainant did receive extra pay on Sunday. The Respondent further acknowledged that the Complainant would have received paid tea and lunch breaks on other days that he worked, and that Sunday was treated no differently to other working days.                                                                                                                    

CA-00028090-005 Complaint under section 6 of the Payment of Wages Act, 1991

The Respondent maintained that the Complainant resigned on 29th October 2018 following an altercation with the Respondent and where the Complainant using expletives told the Respondent what he could do with his job. As the Complainant had resigned the Respondent maintained he was not obliged to pay the Complainant in lieu of his notice.                                                                                            

CA-00028090-007 Complaint under Section 45A of the Industrial Relations Act, 1946

This Complainant has withdrawn this complaint.                                                                                                                     

CA-00028090-008 Complaint under Section 45A of the Industrial Relations Act, 1946

The Respondent acknowledged he did not provide the Complainant with a written statement of his terms and conditions of employment.

CA-00028090-009 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent maintained that an altercation did occur between the Respondent and the Complainant regarding a sale of the Complainant’s mobile home. The mobile home was on a site owned by the Respondent. The Respondent submitted that during the course of the altercation the complainant told him “F*** you”, “F*** your job”, “F*** off you ****”. The Respondent submitted that that having heard these words he told the Complainant that he took it the Complainant was leaving and the Respondent would therefore organise for the Complainant to receive his P45. The Respondent advised that the P45 was issued within 3 to 4 weeks. The Respondent in his evidence maintained that this altercation took place when the Complainant was getting into his car and where the Respondent leaned over and turned off the ignition of the car to try and reason with the Complainant, but the Complainant behaved in the manner described above. The Respondent advised that he was trying to resolve the matter but in light of the Complainant’s response he submitted that no employer would be expected to accept what was said to him. The Respondent explained what annoyed the Complainant was the fact that the Respondent was being honest in highlighting the defects of the mobile home to a potential purchaser and that the only person shouting at the time was the Complainant. The Respondent further submitted that children were in the area who were unsettled by the behaviour of the Complainant. The Respondent acknowledged that the Complainant sent him two text massages that day. He confirmed that the first text referred to the €200 charge for the hotel room and where the Complainant had outlined that that was a matter for the Respondent to deal with. The second text referred to the fact that the Respondent had told the Complainant he was getting his P45 and where the Complainant had asked the Respondent what was going on, and that he was available for work. The Respondent acknowledged that he did not seek to further resolve the matter regarding the altercation about the mobile home and took it that the Complainant had resigned as a consequence of what happened. The Respondent acknowledged that the dispute about the mobile home did not relate to the employment relationship but related to a private matter of the sale of the Complainant’s mobile home. Notwithstanding the Respondent was of the view that as the Complainant had told a lie to a potential purchaser of the mobile home and due to the attitude and language used by the Complainant during that altercation that it was appropriate to issue the Complainant with his P45. The Respondent acknowledged that there were no further discussions with the Complainant to resolve the matter, or any further discussion with the Complainant following his text on 29th October 2018 following up with Complainant after he advised by text that he was available for work. The Respondent in his evidence maintained that the Complainant had quit his job.

Findings and Conclusions:

CA-00028090-001 Complaint under section 24 of the National Minimum Wage Act, 2000             

Based on the evidence provide I am satisfied the Complainant was in receipt of the correct rate of pay. I therefore do not uphold this complaint.

CA-00028090-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

In accordance with Section 14.(1) of the organisation of Working Time Act, 1997 an employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely— (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or (b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or (c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or (d) by a combination of two or more of the means referred to in the preceding paragraphs. Based on the evidence presented I am satisfied that there was no Sunday provision allowed for when the Complainant worked on Sundays. Although he was paid for his lunch break and intervals at work breaks, he was treated similarly to when he worked other days of the week. He only worked two Sundays over the period.

I therefore find the Respondent is in breach of section 15 of the Organisation of Working Time Act, 1997 and I uphold the complaint.

CA-00028090-005 Complaint under section 6 of the Payment of Wages Act, 1991

Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

• the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

• the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

• in the case of a deduction, the employee has given his prior consent in writing to it.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 for a period of two years or more, but less than five years, two weeks’ notice.                                                                                                                     As this complaint was withdrawn no findings were made.CA-00028090-008 Complaint under Section 45A of the Industrial Relations Act, 1946  CA-00028090-009 Complaint under Section 8 of the Unfair Dismissals Act, 1977S6(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:

1. 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”.             
2. As the Complainant was not provided a written statement of his terms of employment, I find that the Respondent is in breach of his obligations under the Terms of Employment (Information) Act, 1994
3. The Employment regulation Order requires all Employers will, on request or within two months of the commencement of employment, provide each employee with a written statement of the employee’s terms of employment in compliance with the Terms of Employment (Information) Act, 1994.                                                                                                                  
4. CA-00028090-007 Complaint under Section 45A of the Industrial Relations Act, 1946
5. As I have found that the Complainant was unfairly dismissed and where his dismissal occurred without notice on 29th October 2018, I find that the Respondent has unlawfully deducted two weeks wages form the Complainant by not paying him the required notice period, and I uphold this complaint.

• 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 an altercation took place between the Complainant and the Respondent on 29th October 2018. This altercation was not related to the workplace but related to the sale of a mobile home belonging to the Complainant and where the Respondent felt obliged to explain and outline defects of the mobile home to a potential purchaser. I am satisfied based on the evidence provided that the Complainant did have an outburst of inappropriate language towards the Respondent and that the Respondent stated that he took the Complainant was now leaving his work and that he would issue a P45. I am further satisfied that there was no follow up by the Respondent to address the matter and a text sent by the Complainant on the same day seeking clarification on the matter and saying he was available for work was not responded to by the Respondent. Whilst acknowledging that the language and outburst from the Complainant towards the Respondent was inappropriate, I do not find that it related to a workplace matter. Similarly based on the evidence provided by the Respondent I am satisfied the Respondent felt that no employer should take the abuse he had received from the Complainant and therefore he followed up with his decision to issue a P45 to the Complainant. Whereas a difficult interpersonal relationship occurred between the parties it is clear that the Complainant was dismissed by the Respondent following that altercation. Moreover, the Respondent failed to address the matters or explain the decision to dismiss the Complainant when he sought an update and clarification, and advised the Respondent he was available for work. No evidence was presented at the hearing that indicates the Complainant had actually tendered his resignation. Although the Complainant’s verbal abuse was personal in nature towards the Respondent, it did not relate to an employment or a workplace issue, and did not occur during working time. Under the circumstances, where the experience was difficult and emotive for both parties, I find that the Complainant was dismissed by the Respondent without due process and for an incident that had no nexus with the workplace. 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 and 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 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-00028090-001 Complaint under section 24 of the National Minimum Wage Act, 2000

I do not find this complaint to be well founded.

CA-00028090-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

In accordance with Section 24 of the Organisation of Working Time Act 1997, I find the Respondent is in contravention of Section 15 of the Act as the Respondent failed to pay the Complainant a Sunday premium. I therefore require the Respondent to compensate the Complainant for the 13.75 hours worked over two Sundays at a premium of 30% per hour based the Complainant’s hourly rate of pay of €9.55, amounting to €39.39 in total.  

CA-00028090-005 Complaint under section 6 of the Payment of Wages Act, 1991

The Complainant maintained he received no payment in lieu of notice as he was summarily dismissed. As I have found the dismissal to have been unfair and where it was made without payment in lieu of notice, I direct the Respondent to pay the Complainant compensation of two weeks’ pay which based on his average weeks’ pay a the time of his dismissal amounts to a total €577.78.

CA-00028090-007 Complaint under Section 45A of the Industrial Relations Act, 1946

This complaint was withdrawn by the Complainant at the hearing.            

CA-00028090-008 Complaint under Section 45A of the Industrial Relations Act, 1946

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 pay amounting to €577.78.

CA-00028090-009 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 I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent. 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. As I have found the Respondent failed to adhere to any reasonable procedure in deciding to dismiss the Complainant, and where the dismissal was as a result of an issue not related to the Complainant employment, the acts and omissions of the Respondent have been the significant factor in the Complainant losing his job. At the hearing the Complainant provided little evidence of his attempts to mitigate his loss. I therefore must consider this in awarding the Complainant compensation. Taking all of the above into consideration I consider it just and equitable in all the circumstances to award the Complainant €7,500 in compensation (subject to any lawful deductions).

Dated:   May 21st 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney