Complainant

Respondent

Anonymised Parties

A truck helper/general operative.

A transport company.

Representatives

Ronan Killeen, Killeen Solicitors

Company management

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-00033158-001

17/12/2019

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

CA-00033158-002

17/12/2019

The Complainant was employed by the Respondent as a General Operative. Employment commenced in October 2016 and ended on 19th November 2019.

Total remuneration was €430.00 per week.

This complaint was received by the Workplace Relations Commission on 17th December 2019.

The hearing of the complaint took place at the Workplace Relations Commission, Lansdowne House, Dublin on 16th October 2020.

Representative for the Complainant submitted a comprehensive booklet of papers to the hearing.

In addition to the booklet of papers the representative raised the following points:

1.       The Complainant tried on several occasions to contact the Respondent in an attempt to establish when he would return to work having recovered from his injury.

2.       It was only after the Complainant’s solicitor had written to the Respondent that the Respondent started to communicate with the Complainant. Correspondence dated 27th November 2019 was sent to the Respondent by the Complainant’s solicitor.

3.       During the Complainant’s absence from work he was issued with three letters from the Respondent, these letters were as follows:

a.       Letter dated 12th August 2019 – “The Complainant (name redacted) has been in employment with the Respondent (name redacted) since October 2016”.

b.       Letter dated 22nd August 2019 - ………… “he is on indefinite sick leave since 16th August and is not entitled to sick pay”

c.       Letter dated 19th November 2019 “……… we unfortunately had to let him go as we don’t have enough work for him”

It is clear from the letter dated 19th November 2019 that the Respondent dismissed the Complainant.

The Complainant was hired on 17 October 2016 as helper on truck and became a permanent employee on the 17 October 2017. He is a nephew of the owner of the company. The Complainant’s father also worked for the company (approx. 40 years). He retired in January 2020.

The Respondent company is a family business, communication with family members can be on a very casual basis, i.e. when the Complainant broke his arm from a sports injury, his dad advised he would off work for a while.

The Respondent never received any sick notes or any information about a return date from the Complainant. All correspondence was from his father. The Respondent received no communication from the Complainant until 11 November 2019.

When the Complainant informed the Respondent, he was looking for a job in the bank with his girlfriend, they assumed he would not be back to work, the Respondent did not follow the normal formal procedures that would be utilised with any other employee.

The Respondent maintains that they done their best to get him back to work after the Complainant had contacted them on 11th November. They told him initially they would have a few days here and there but advised him to bear with them and they would have him back full time in a matter of weeks.

The Respondent wanted the Complainant back. They claim to have done everything in their power to get him back into the company, not only because he is the owner’s nephew but because he was a valued employee. They never had any issues with his work and he was well liked by all his colleagues.

The Respondent does not pay sick pay for employees as they are a small company and cannot afford to pay sick leave, however when the Complainant broke his arm from a sports injury, the Respondent continued to pay him for an additional 6 days’ pay as he was family and the Respondent wanted to do their best by him.

The Complainant’s legal action against the company has caused so many problems in the family. The owner was very upset that his nephew, was taking a claim against the company.

The Respondent advised the Complainant’s solicitor that there was a full-time

position for the Complainant and would he not return to work. The Solicitor was asked why the Complainant was going down this route when they had advised the Complainant that they had his full-time position back in November and he had declined to take a job in another company.

The Solicitor advised that the Complainant would not be willing to go back to work because of all the ill feeling since the case, the Complainant could not understand as in many of his texts he had said there was no ill feeling on his part.

The Respondent states that it is clear from the text messages received from the Complainant that there was no animosity and he (the Complainant) genuinely wanted to get another job and did not want to come back to work with the Respondent.

The spokesperson for the Respondent called the Complainant a few times to try and sort the matter out as he is the owner’s nephew, but he would not take the calls. The owner tried to call the Complainant also, but he declined his calls.

Summary of events with the Complainant.

The Complainant broke his arm from a sports injury on the 15.08.19. His father advised the Respondent that he would be off for several weeks.

A few weeks after the Complainant broke his arm, his father informed the Respondent that

his son was probably not coming back as he would not be able to lift the bales. His position is very labour intensive.

Around early October, as the Respondent had not heard anything from the Complainant

They asked his father when he was coming back, the father advised the Respondent that he did not believe his son was coming back as he was looking for another job.

assumed then he would not be back

The Respondent did not hear from the Complainant until 11 November 2019 when he sent a text asking if there was still a job for him and that he would be able to return in a week. He was well aware that his father had informed the Respondent that he was looking for a job elsewhere and that’s why he asked was there still a job open for him.

The Respondent manager spoke to the Complainant on the 18/19 November and told him he did not have a full- time position available at that time as he thought he was not coming back. The manager advised that he would have a few days’ work here and there for the Complainant and to bear with him until he could get his full-time position back in a few weeks. The Complainant asked the manager if he could get a letter saying we had no work for him, so he could claim social welfare as Christmas was coming up and he could not afford to work a few days here and there until his full-time position was back. The requested letter was issued to the Complainant.

On the 24th November the Respondent manager sent the Complainant a text to advise they had work for him, the Respondent manager called the Complainant numerous times, the Complainant would not take the calls. When the Respondent manager finally got hold of the Complainant he said he was going for an interview and no hard feelings, the Respondent manager advised the Complainant that there was a fulltime position for him.

The Respondent company received a solicitor’s letter on the 29th November.

A summary of texts exchanged between the Complainant and Respondent was included in the Respondent submission.

Conclusion.

The Respondent done everything in their power to facilitate the Complainant when he broke his arm, they paid him extra days when he was off sick. They never put any pressure on him to come back.

The Respondent asked the Complainant’s father frequently how he was. They never received sick notes from the Complainant or any indication of a return date. All communication was through the Complainant’s father who had advised that he did not think his son would return to the Respondent’s employment as he would be unable to lift the bales with his injury and finally that he was looking for a job elsewhere.

The Respondent believes there only fault was that they assumed the Complainant was not coming back due to the communication from the Complainant’s father.

When the Respondent found out the Complainant wanted to return to work they did everything possible to get him back and were in a position to offer him full-time employment again at the end of November or early December which the Complainant refused and advised he was taking another job and said there was no hard feelings on his behalf.

Finally, the Respondent pointed out that they are a small transportation company going through very difficult times with Covid and trying their best to keep the company going.

90% of their staff have been with them for many years and they pride themselves on treating their employees fairly and this is evidenced from their employee loyalty and staff

retention. The Complainant’s own father worked there for 40 years.

The Respondent company are disappointed that the Complainant chose this route and refused to come and talk to them.

The Respondent company feel a resolution could have been found and the Complainant could have returned to his position on 2nd December 2019. He refused this resolution and instead chose the road of claiming damages from the company.

Complaint CA – 00033158 – 001 – Complaint submitted under section 8 of the Unfair Dismissals Act, 1977.

In hearing this complaint, it becomes obvious that a family relationship and employment relationship are two very different forms of relationship.

The Respondent organisation is run as a family business and the Complainant is the nephew of the owner. The owner’s son and daughter appear to have two important managerial positions in the company, the owner is in the process of retiring and has handed over the reins to his son and daughter. The letter dated Letter dated 19th November 2019 “……… we unfortunately had to let him go as we don’t have enough work for him”. For whatever reason this letter was issued, it is not helpful to the Respondent’s case.

The Respondent company claim to have policies and procedures that all employees should adhere to. It was unfortunate that they did not produce these policies and procedures at the hearing.

The Complainant does not appear to have appealed his dismissal, this was a significant failure on his part. In ADJ – 0000381 the Adjudication Officer commented as follows:

“An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction.”

In coming to a conclusion in this complaint I believe that on the balance of probability the Respondent has unfairly dismissed the Complainant but in failing to utilise an appeals procedure the Complainant has contributed to his own dismissal to an extent of 50%.

The employment ended on 19th November 2019, the Complainant remains unemployed.

In relation to efforts to secure employment the Complainant submitted a printout of positions he has applied for. A total of 31 positions were applied for between June and September 2020, there was no evidence of applications made prior to June 2020.

In Sheehan v Continental Administration Co Ltd (UD 858/1999) the EAT stated …… “The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather [is] to be profitably employed in seeking to mitigate his loss”

In the instant case the Complainant has made some effort to find alternative employment however these efforts are, in my opinion, minimal.

I now order the Respondent to pay compensation of 26 weeks remuneration to the Complainant (reduced by 50%) i.e. €430 x 13 = €5,590 gross.

This payment should be made within 42 days from the date of this decision.

Complaint CA – 00033158 – 002 – Complaint submitted under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The Complainant was entitled to 2 weeks’ notice, this, I calculate amounts to €860.00 gross.

I now order the Respondent to make this gross payment to the Complainant.

This payment should be made within 42 days from the date of this decision. This payment is in addition to the payment awarded under the Unfair Dismissals Act 1977.

Complaint CA – 00033158 – 001 – Complaint submitted under section 8 of the Unfair Dismissals Act, 1977.

In coming to a conclusion in this complaint I believe that on the balance of probability the Respondent has unfairly dismissed the Complainant but in failing to utilise an appeals procedure the Complainant has contributed to his own dismissal to an extent of 50%.

I now order the Respondent to pay compensation of 26 weeks remuneration to the Complainant (reduced by 50%) i.e. €430 x 13 = €5,590 gross.

Complaint CA – 00033158 – 002 – Complaint submitted under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The Complainant was entitled to 2 weeks’ notice, this, I calculate amounts to €860.00 gross.

I now order the Respondent to make this gross payment to the Complainant.

Unfair Dismissals Act 1977; failure to appeal dismissal; mitigation of loss.

Minimum Notice.