Complainant

Respondent

Anonymised Parties

A worker

A factory

Representatives

Citizens Information Centre

VP McMullin Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030556-001

29/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030556-002

29/08/2019

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

CA-00030556-003

29/08/2019

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

CA-00030556-004

29/08/2019

The complainant believed himself to have been dismissed without notice following a meeting with the respondent. He did not receive statutory notice entitlements and did not get a copy of his terms of employment.

The complainant worked for the respondent from 17th June 2016 until 4th July 2019.   On that date he was summoned to a meeting with the owners of the company without any prior notification of the purpose. There was no translator present. The complainant was informed that he had a new supervisor and that due to his relationship with that new supervisor he was being ‘fired’. The following week he received his holiday pay. He wrote to the respondent on 22nd July 2019 requesting written notification of the reason for the dismissal but received no reply. He received no notice and was dismissed with immediate effect. The complainant did not receive a copy of his terms of employment as required under the Terms of Employment (Information) Act.

In October 2019 the respondent claimed that the complainant resigned. Where an employee resigns in haste he or she should be asked formally to resign.

The respondent accepts that the complainant was not give a copy of his terms of employment.

The complainant was employed with the respondent for approximately three years. It became necessary to appoint a supervisor to enable more efficient working without the need to constantly refer to the manager (Mr P). The respondent decided to appoint Mr A to the position, an employee with 13 years’ experience, on a trial basis, for two months. The complainant was asked to come to the office and he was informed of the appointment. He responded ‘NO NO NO’ and refused to work as requested saying he would work on his own.   He was told this was not possible and that his work would not change. He immediately left the meeting, went to the canteen to collect his personal effects and left the premises. He did not give any reason for leaving and did not return. His letter of 22nd July was not responded to because he had not been dismissed.

Terms and Conditions:

The respondent acknowledges that the complainant was not given a copy of his terms of employment and therefore this complaint is well founded.

Unfair dismissal;

Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as follows;

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6 (6) of the Act states;

(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 other substantial grounds justifying the dismissal

The burden is therefore on the employer to demonstrate that the dismissal is fair.

There is considerable difference in the evidence of both parties regarding the events of the meeting on 4th July 2019. It is clear that the complainant was distressed at the news of who his new supervisor was to be. As English is not his native language it is also possible that he misunderstood what was being communicated to him at the meeting. It was incumbent on the respondent to ensure that there was no such misunderstanding. If the respondent was in any doubt as to whether the complainant had resigned or believed himself to have been dismissed, the letter of 22nd July   - 18 days after the meeting – was evidence that the complainant believed himself to be dismissed. It was open to the respondent to clarify matters at that stage and to take the complainant back. He did not do so and chose not to respond to that letter.   The complainant therefore at that point was entitled to consider that he had been dismissed without due process.   The complaint of unfair dismissal is therefore well founded.

Compensation:

Compensation is defined in Section 7(1)( c) of the Act as ;

(i) 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, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

The complainant in this case commenced work for another organisation less than 4 months after his contract with the respondent was terminated and his remuneration in his new job was 70 euros per week less than he had been earning. There were considerable discrepancies in the evidence he gave regarding his availability for work in the period of time between leaving the respondent and taking up a new position, and in particular, in relation to the amount of work he was undertaking as a security person and the consequences that this might have for his availability to look for or take up employment. In considering what compensation is appropriate I have taken into consideration the complainant’s behaviour as a significant contribution to the dismissal and therefore believe that the sum of €3,000 is just and equitable.

Minimum Notice

The complainant is entitled to two weeks’ notice and this complaint is well founded.

I find the complaint in relation breaches of the Unfair Dismissals Acts1977 - 2015 is well founded and I order the respondent to pay the complainant €3000 in compensation.

I find the complaint in relation to breaches of the Minimum Notice & Terms of Employment Act, 1973 is well founded and I order the respondent to pay the complainant €940.

I find the complaint in relation breaches of the Terms of Employment (Information) Act, 1994 is well founded and I order the respondent to pay the complainant €200.

Unfair dismissal, minimum notice,