ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022694
Parties:
| Complainant | Respondent |
Anonymised Parties | An Operative | A Construction Company (now in liquidation) |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00029285-001 | 25/06/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00029285-002 | 25/06/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029285-003 | 25/06/2019 |
Date of Adjudication Hearing: 26/02/2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 27 of the Organisation of Working Time Act, 1997 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 issues in contention concern the alleged Unfair Dismissal with associated Terms and Conditions and Annual Leave complaints of an Operative by a Construction Company. |
1: Summary of Complainant’s Case:
Act | Complaint/Dispute Reference No. | Summary Complaint |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00029285-001 | The Complainant alleged that he had not received a proper Statement of Terms and Conditions of Employment. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00029285-002 | The Complainant alleged that on the weekend of the June Bank Holiday 2019 he had complained about non-payment of wages during June. He was informed by the Principal /Managing Director, Mr Xw “Don’t bother coming back after Tuesday”. The Office Administrator was informed to give him his outstanding Notice, Wages and Holiday Pay. After some considerable delay these were eventually paid. Holiday Pay remains outstanding. No HR procedures were followed at the time of the Dismissal and No proper Appeal was offered. His Legal representative pointed out that SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures had been completely ignored. The Complainant had a solid case for Unfair Dismissal. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029285-003 | While some Holiday Pay had been paid a portion remains outstanding. |
2: Summary of Respondent’s Case:
The Respondent did not attend the hearing. However, a detailed E mail had been received on the 25th July 2019 outlining the Respondent position in relation to the three Complaints. In regard to the Contract claim a proper Contract had been given in July 2017, the alleged Unfair Dismissal was without foundation – the Employer had run into severe financial difficulties and the Complainant was let go on this basis. The third complaint of outstanding Holiday and other pay was without foundation. All monies due had been paid. The Liquidator of the Company, Mr. Michael Leydon of Outlook Accountants, had been properly notified of the date, place and time of the Adjudication Hearing. |
3: Findings and Conclusions:
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Act | Complaint/Dispute Reference No. | Adjudication findings. |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00029285-001 Statement of Terms and Conditions of Employment | Written evidence was presented of a Contract and Statement of Terms and Conditions. It was dated the 10th of July 2017. The Respondent indicted that the correct stating date was the 22nd June 2017. From the Respondent written evidence given the complaint CA -00029285-001 has to fail. I deem it Not Well Founded. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00029285-002 Unfair Dismissal. | The relevant Legislation is the Unfair Dismissal Act ,1977 supported by SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures. In addition, the role of Natural Justice has to be paramount. The landmark case here would be Frizelle v New Ross Credit Union Ltd, [1997] IEHC in which Flood J. stated that where a question of unfair dismissal is in issue “Natural Justice must be paramount”. However, all cases rest on their own evidence and I will consider this now. From the Complainant uncontested evidence, it was apparent that he had been “Let Go” on the June Bank Holiday weekend of 2019. The Respondent e mail of the 25th July had made the point that the Principal Mr Xw had explained, at the time, the financial situation of the Company to the Complainant. He was being Let Go due to no monies being in the Company to pay his wages. The Company went into Liquidation shortly afterwards. The evidence of the Complainant was uncontested by the Liquidator who was not in attendance despite being notified. From the Oral evidence it was clear that no proper Unfair Dismissal or Redundancy procedures had been followed by the Respondent. No detailed Financial briefing was given, and No Appeal allowed. Accordingly, a finding of Unfair Dismissal has to be made. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029285-003 Holiday Pay. | Detailed wage sheets were presented in evidence. In the absence of the Liquidator it was impossible to establish exactly what had been or not been actually paid. The Complainant accepted that some Holiday Pay had been paid later in the year. On balance and accepting that the Liquidator is a most reputable professional practice I am prepared to accept the Respondent position that all monies due have been paid. Accordingly, I deem that Complaint CA -00029285-003 Holiday Pay is Not Well Founded. It is set aside. |
4: Decision:
Section 41 of the Workplace Relations Act 2015; Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under the cited Acts.
As Complaints CA-00029285-001 (Information) and CA-00029285-003 (Holiday Pay) have been deemed to be Not Well Founded the only remaining case for consideration is CA-00029285-002 – Unfair Dismissal.
The Options of Re Instatement or Re Engagement do not apply and Compensation is the only option.
Section 7 (1) (c) of the Unfair Dismissals Act, 1977 requires a redress that is “just and equitablehaving regard to all the circumstances”.
The Complainant had been on illness benefit from the 18th December 2019. The period of loss was from 12/06/2019 to the 18th December 2019.
Having considered and weighed all the circumstances I deem an Award of € 8,000 (-being approximately 10 weeks’ pay) is appropriate.
Naturally and as provided for in Legislation any Redundancy Lump Sum, that has been or is being paid for the same ending of employment, must be off set against this award.
Taxation of the Award, if any, to be considered in conjunction with the Revenue Commissioners.
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Dated: 15/05/2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
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