ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027160
Parties:
| Complainant | Respondent |
Anonymised Parties | Horse yard Groom | Horse yard owner |
Representatives | Nicola Dowling Williams Solicitors | Did not attend |
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-00034751-001 | 20/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00034751-002 | 20/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00034751-003 | 20/02/2020 |
Date of Adjudication Hearing: 04/09/2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a 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 other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form her place of employment wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 20th of February 2020) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
In addition to the Complaint brought under the Unfair Dismissals legislation above, the Complainant has made further allegations that the Employer herein has contravened provisions and/or enactments of Acts (generally protective employment Acts) which have been specified in Schedule 5 of the Workplace Relations Act of 2015. As the Adjudicator assigned to deal with these matters, my obligation is to hear these further complaints in accordance with the mechanism set out in part 4 (and in particular, section 41) of the 2015 Act. Having heard the complaints in the manner so prescribed I am entitled to consider redress in accordance with the Redress Provisions outlined in Schedule 6 of the Workplace Relations Act of 2015.
Background:
The parties were both notified of today’s hearing date on the 4th of August 2020. I am satisfied that the correct Respondent has been named and that the letter inviting the said Respondent to the hearing was sent to the nominated Registered Office and marked for the attention of the Director (KA), which person was at all times the person from whom the Complainant received day to day instruction regarding her employment. Having allowed for a bit of time for the Respondent to appear I proceeded to hear the Complainant’s evidence. In this regard I was also provided with a very helpful submission prepared by the Complainant’s representative. |
Summary of Complainant’s Case:
The Complainant gave evidence in person and her personal account was in line with what had been set out in the submission received. |
Summary of Respondent’s Case:
The Respondent did not attend and so I cannot comment on what case might have been made on behalf of the Employer. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant was engaged by KA to work as a Groom in his stables and had worked in this position from May of 2018. The Complainant was one of two Grooms in the yard and worked about 40 hours a week for a gross salary of €480.00. The Complainant was not provided with a Contract of Employment and I accept her evidence that she was never provided with a statement of her Terms and Conditions of Employment. The Complainant had an unfortunate riding accident in the course of her employment, injuring her knee. The Complainant was required to stay out of work for three weeks to recover and on her return to work was only able to engage in light duties. It is noted that the Complainant was continued to be paid during her recuperation period and I am advised that there is no sickness scheme applicable to the Complainant in the workplace. I accept that KA had indicated that he would make a financial contribution towards the expense which might be incurred if and when the Complainant was to proceed to have the advised knee surgery performed. I understand that KA told the Complainant that he had been in touch with his insurance in this regard. At the end of the summer, the Complainant told her employer that she would be going for surgery on the 3rd of October. When asked by KA, she stated that it was her intention to return to work when she was fit to do so but could not put a timeframe on recovery. For reasons which remain unexplained, KA appears to have opted to terminate the employment at his time. The Complainant only came to realise this when she was handed a letter by the Financial Controller on the 1st of October which commenced with the words: “As this is your final day of work with us….” The letter had been handed to the Complainant in the context of having asked the Financial Controller what the situation was with her Holiday pay. The fact that her employment had been summarily ended came as a shock to the Complainant who had fully intended returning to the workplace as soon as she was fit to do so after the operation. The Complainant asked the Financial Controller what was going on, but she could not throw light on the situation. It is noted that the Complainant had no Notice of the decision to terminate her employment. It is further noted that Employer considered the Complainant’s request for Holiday pay was refused in light of the fact that she had already been paid while off sick and any further payment would not be reasonable, and this was set out on the Financial Controller’s letter handed to the Complainant on her last day of work. On balance I am satisfied that the Complainant was Unfairly dismissed. The Complainant’s performance was not at issue and the decision to terminate was taken unilaterally and without consultation and/or without having consideration of the fact that the Complainant fully intended a return to work post operation. The Complainant has additionally referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
The Complainant herein has also referred a matter for adjudication as provided for under Section 11 of the Minimum Notice and Terms of Employment Act, 1973 and I accept that the Complainant having worked in excess of thirteen weeks was entitled to one week’s Notice or pay in lieu.
The final issue before me relates to a failure on the part of the Employer to recognise accrued Annual Leave as recognised in the the Organisation of Working Time Act 1997. I note that whilst this Complaint is indicated in the narrative a specific complaint has not been made under the said Act. On balance and having read the letter of the 1st of October 2019 I am satisfied that the Complainant had accrued Annual Leave entitlements of 15 days at the termination of her employment. These days cannot be retrospectively designated to run concurrently with a period of time when the Complainant was clearly unavailable for work by reason of a well-documented injury. Annual leave is a Statutory right built up through hard labour.
In assessing remunerative loss under the Unfair Dismissal legislation I am taking into account the Holiday pay which was her entitlement. I must also take into account the fact that from late October 2019 to the start of August 2020 the Complainant was unavailable for work by reason of being on illness benefit. Since that time the Complainant has been looking for work in what has become a very difficult market.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00034751-001 I find that the Complainant was Unfairly Dismissed and award redress in the form of compensation for financial loss (attributable to the dismissal) in the amount of €10,752.00 Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00034751-002 I accept that the Complainant having worked in excess of thirteen weeks was entitled to one week’s Notice and now direct payment in lieu in the sum of €480.00. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00034751-003 I consider the complaint to be well founded and I direct a payment of compensation in the sum of €250.00 as being just and equitable in all the circumstances. |
Dated: 6th October 2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath