ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027769
Parties:
| Complainant | Respondent |
Anonymised Parties | A Port Worker | A Port Facility Company. |
Representatives | Self-Represented | Did not appear at Hearing. |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00035527-001 | ||
CA-00035527-002 | ||
CA-00035527-003 | ||
CA-00035527-004 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015;Section 8 of the Unfair Dismissals Acts, 1977 – 2015;Section 12 of the Minimum Notice & Terms of Employment Act, 1973 and section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaints / disputes 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 complaints/ disputes.
Notification of Hearing.
The Respondent had agreed to e mail notification of WRC correspondence on the 5th June 2020. A standard ordinary Notification letter by e-mail had issued to him on the 10th of August 2020.
Background:
The issues in contention concern the ending of employment, (Redundancy, Minimum Notice, Employment information and Unfair Dismissal) of the Complainant, a Dock side worker, by a Dock Services Company. The employment began on the 17th June 2016 and ended on the 26 of March 2020. |
1: Summary of Complainant’s Case: (Based on Written Evidence presented and supporting Oral Evidence given at the Hearing.)
1:1 CA-00035527-001 Unfair Dismissals Act,1977 The Respondent Employer had proposed a weekly wage cut of €70 for the Complainant. He had refused to accept this and had suggested an alternative proposal following the voluntary resignation of a colleague. A considerable volume of Text messages between the parties was presented. Discussions/Texting with the Respondent had not achieved a result and the Complainant was effectively dismissed without any procedures being followed. 1:2 CA-00035527-002 Redundancy Payments Act, 1967 The Complainant received no Redundancy payment on his termination of employment. It was alleged that the Respondent had stated that he was unaware of any “rights” the Complainant might have and refused to discuss Redundancy. 1:3 CA-00035527-003 Minimum Notice & Terms of Employment Act, 1973 The Complainant alleged that he had received only four days’ notice pay - leaving him short 6 days Minimum Notice pay based on a statutory entitlement to two weeks’ pay. 1:4 CA-00035527-004 Terms of Employment (Information) Act, 1994 The Complainant alleged that he never received any written employment contract documents as required by the Act. |
2: Summary of Respondent’s Case:
2:1 Opening Position – all Complaints - CA-00035527- 001,002,003,004. The Respondent did not attend the Oral Hearing and accordingly there was no opportunity for the Adjudicator or the Complainant to question any evidence submitted or query his point of view. Accordingly, I had to take it that no Respondent evidence had been presented to the Adjudication Hearing. A lengthy e mail had been submitted by the Respondent on the 9th July outlining his case. As stated above in the opening Procedures Section of this Adjudication I was satisfied that the Respondent had received proper notice of the date, time and place of the Hearing. |
3: Findings and Conclusions:
3:1 Complainant/ Respondent Evidence – Written and Oral. The Complainant attended the Oral Hearing and presented relevant and available employment documentation such as PAYE records plus copies of Text messages. His Oral evidence was, I found straightforward and unembellished. As Adjudication Officer I carefully questioned him on his evidence. Having read his written material and listened to his Oral presentation evidence and replies to Adjudicator questions, together with his general demeanour, I attached good value to his evidence. The Respondent had submitted an email on the 9th of July 2020 basically maintaining that the Complainant had effectively “walked out” on the 23rd March as they could not agree a way forward. The Respondent Company was experiencing, as a result of Brexit and Covid 19, very challenging trading conditions and very serious cuts had to be made if the business was to survive. The Respondent stated in his e-mail that it was most unfortunate that the Complainant, who was a good worker, choose to leave of his own volition. The Complainant had issued a detailed reply to this email on the 15th of July 2020. No formal procedures were followed in this case but a considerable volume of text messages between the Parties was presented. The complete absence of Respondent direct evidence was problematic as in a standard UD,1977 Act case the onus to justify a Dismissal rest with the Respondent. 3:1:1 CA-00035527 –001- Unfair Dismissals Act, 1977 The Relevant Law The relevant Law is the Unfair Dismissals Act, 1977 supported by SI 146 of 2000 - Code of Practice on Grievance and Disciplinary Procedures. The Legislation and SI 146 of 2000 sets out standard and well know rules and procedures governing a Dismissal situation. No Respondent evidence was presented and as far as I could ascertain from Complainant evidence no legally required formalities were observed in this case. However, and nonetheless in the Oral evidence given by the Complainant and supported by the text Messages supplied it was clear that the actual employment position in question could possibly have been retained albeit on reduced wages and with little certainty as to when the wage cut might be restored if at all. It was not clear at all if the Complainant had actually been dismissed as opposed to being made redundant. The absence of Respondent direct evidence to support the-mail of the 9th July 2020 was most unhelpful. Even hypothetically accepting the Redundancy argument it was clear that no formal selection criteria was employed and that it was very unclear as to what criteria if any were employed to select those employees facing varying levels of wage cuts and how any suggestion of length of service had an influence. Section 6(4) of the UD Act,1977 states 4) Without prejudice to the generality of subsection (1) of this section, 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: ( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, ( b) the conduct of the employee, ( c) the redundancy of the employee, and
To avail of this defence an Employer has to show fair procedures particularly in the case of sub section c - Redundancy. No evidence was presented of any procedures, consultations etc, in regard to the Redundancy defence other than the inter party text messages alleging a major down turn in Port traffic. Accordingly, and taking into account all the evidence presented and the apparent complete absence of any recognised procedures the Dismissal is deemed to be Unfair. Redress will be considered in the Decision section below. 3:1:2 CA-00035527-002 Redundancy Payments Act, 1967 The Complainant commenced employment on the 17/06/2016 and ended on the 26/03/2020 (dates from Revenue Documents supplied) He worked an average of 30 hours per week at a weekly wage of € 452.46 per week. I have deemed that an Unfair Dismissal took place. Legal practice is that it is not possible to avail of remedies for the same circumstances albeit under different pieces of legislation. It is also completely unclear, in the absence of suitable evidence, particularly Respondent evidence, how the Provisions of Section 9 ,11 and 12 of the Redundancy Act could apply in this case. Accordingly, I am deeming the Redundancy complaint CA -00035527-002 as, technically, not legally well founded. 3:1:3 CA-00035527-003 Minimum Notice & Terms of Employment Act, 1973 The Revenue documentation provided by the Complainant established a period of service from 17/06/2016 and ending on the 26/03/2020 – 3.78 years. Under the Act this equates to a Statutory Minimum notice period of two weeks’ pay – 10 days. Accepting the statement from the Complainant that he had received 4 days’ notice this leaves a shortfall of 6 days. From the supplied PAYE documents a weekly wage of €452.46/5 = €90.492 x 6 = €542.95. Accordingly, a Statutory Notice payment of € 542.95 is legally due to the Complainant. 3:1:4 CA-00035527-004 Terms of Employment (Information) Act, 1994 From the uncontested Oral and written evidence supplied by the Complainant it appeared that no written employment Contracts or Documents of Terms and Conditions had ever been supplied to the Complainant by the Respondent. Under Section 7:2(d) of the Terms of Employment (Information) Act, 1994 I deem that a Compensation lump sum of €250 is “just and equitable having regard to all the circumstances”. Accordingly, I direct that the Compensation Lump Sum of €250 be paid to the Complainant. |
4: Decision:
Section 41 of the Workplace Relations Act 2015; Section 8 of the Unfair Dismissals Acts, 1977 – 2015;Section 12 of the Minimum Notice & Terms of Employment Act, 1973 and section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under 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.
4:1 CA-00035527 –001- Unfair Dismissals Act, 1977 / Section 8
Under Section 8 of the UD Act,1977 I deem the Dismissal to have been Unfair.
In considering appropriate Redress that is “just and equitable” the facts are that the Complainant was out of work until the 12th June 2020 when he secured a higher paid position.
Redress of € 4,524 (being approximately 10 weeks’ pay) is ordered in favour of the Complainant.
The question of Re-Instatement or Re-engagement was, following discussion with the Complainant, not deemed appropriate in view of all the circumstances.
4:2 CA-00035527-002 Redundancy Payments Act, 1967 / Section 39
On technical grounds I deem that this complaint is not well founded. No award is made.
4:3 CA-00035527-003 Minimum Notice & Terms of Employment Act, 1973
6 days Statutory Notice pay is outstanding to the value of €542.95. I direct that this be paid to the Complainant.
4:4 CA-00035527-004 Terms of Employment (Information) Act, 1994
As Compensation (with no Renumeration element included) for the breach of a statutory duty by the Respondent I award the sum of €250 to the Complainant.
4:5 Taxation of Awards
The advice of the Revenue Commissioners should be sought in this regard.
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Dated: October 29th 2020
Workplace Relations Commission Adjudication Officer:
Key Words:
Redundancy, Minimum Notice, Unfair Dismissal, Section Three Information, Non-Appearance of Respondent employer. |