Complainant

Respondent

Anonymised Parties

Tiler

Parquet Floors Provider

Representatives

Adrian Carley MKS - Michael Kelleher Solicitors

Catherine MacGinley MacGinley Quinn, Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033771-001

14/01/2020

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

CA-00033771-003

14/01/2020

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

CA-00033771-004

14/01/2020

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

CA-00033771-005

14/01/2020

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

CA-00033771-006

14/01/2020

The Complainant was employed by the Respondent as a tiler. It is agreed that he commenced employment on 15/10/04 and that his rate of pay at the time of termination was €455 gross and €429.50 net. It is agreed that the Respondent issued a letter dated 19/09/19 stating that the Complainant “ceased employment with our company 16th August 2019”. Thereafter there is no agreement between the parties on what occurred in relation to an alleged disputed dismissal which led to the claim for unfair dismissal together with a related claim for minimum notice under the Payment of Wages Act 1991. There is one complaint under the Terms of Employment (Information) Act 1994 as amended that the Complainant did not receive a statement of his terms of employment in accordance with section 3 of that legislation. Whether or not the Complainant received such a statement and sought such a statement on several occasions is also disputed. There was an additional reference under section 11 of the Minimum Notice and Terms of Employment Act 1973.

The Decisions in this matter are issued in respect of:

CA-00033771-001-the claim for minimum notice decided under the Payment of Wages Act 1991.

CA-00033771-005- the complaint [under section 8 of the Unfair Dismissals Act 1977 as amended.

CA-00033771-003, section 7 of the Terms of Employment (Information) Act 1994.

Note:

CA-0003371-002 was a request for an investigation by an inspector under the National Minimum Wage Act 2000 and is not for consideration by the Adjudication Officer.

CA-0003371-004 is a duplicate of the complaint under section 7 of the Terms of Employment (Information) Act 1994.

CA-00033771-006 refers to section 11 of the Minimum Notice and Terms of Employment Act 1973 which was repealed by the Workplace Relations Act 2015 (16/2015), subject to transitional provisions in sub ss. (2), (5).

By agreement of the parties, hearing of the complaints was held remotely on December 2nd, 2020.

A written statement was provided on behalf of the Complainant prior to the hearing. The following is a summary based on the submission as presented together with verbal evidence at the hearing.

Terms of Employment Information Act,1994

The Complainant contends that he never received a statement of employment throughout the period 15th October 2004 and the date on which he received a letter on the 19th September 2019 stating his employment had terminated on 16th August 2019. It is further contended that the Complainant sought such a statement on several occasions during his employment. He denied he had received a copy of the statement submitted to the Adjudication Officer by the Respondent. And furthermore, he denied that it was his signature at the end of that document.

Section 8 Unfair Dismissals Act 1977 to 2018

The Complainant submitted that in or around May 2019 a labourer employed by the company who worked with the Complainant left and the Complainant was left to work on his own. He contended that this extra work triggered back problems and a painful elbow with restricted movement. He submitted that he had notified the Respondent on a number of occasions of the difficulties he was experiencing due to an excessive workload and the absence of necessary assistance when lifting heavy loads and carrying out manual labour without proper assistance. The Respondent failed or refused to employ a labourer or to adjust work practices so as to prevent injury to the Complainant. In mid-July, the Complainant took annual leave and on returning on the 6th of August he informed the Respondent that he was unable to work due to severe pain in his elbow and an inability to extend his arm due to a workplace injury. He was certified as unfit to return to work for a number of weeks. In the submission he stated that he had attended at his employer’s premises on 19th September 2019 while still on sick leave to discuss renewal of insurance on his van which he used for work with the Respondent. At the hearing it emerged that there was an unusual payment arrangement in relation to the van between the Respondent and the Complainant whereby money was deducted from the Complainant’s wages. It was submitted that on the 19th of September the Complainant and his son met with the Respondent who handed him a letter stating: ‘to whom it may concern that the Complainant ceased employment with our company on 16th August 2019. Any further details contact me’. The Complainant was shocked and unbeknownst to him he had been dismissed on 16th August 2019 without any proper procedures or notice to him of dismissal.

The Complainant has since commenced employment on a self-employed basis, working with his son. At the hearing it emerged that the Complainant had attended his GP on the 6th of August. He contended that he told the employer that he could not work due to his injury and that he was told on the day that he did not need to submit any certificates. He was still sick when he attended the employment on the 19th of September and continued to claim sick benefit until the end of September. He could not give the exact date when he informed the employer of his sick leave but said that when he offered sick certificates, he was told he did not need to submit them. He was adamant that there was no discussion with him about ending his employment and leaving the company as contended by the Respondent. He could not recall when the insurance was due on the van which he stated was one of the reasons he went to the site. At the hearing he agreed that his daughter (together with his wife) had attended at the site on another occasion seeking payslips for the Complainant and had dealt directly with the Respondent’s daughter. The significance of this point is that the Respondent contends that the letter containing his termination date was provided to the complainant’s daughter and not the complainant as claimed.

Terms of Employment Information Act,1994,as amended.

The Respondent provided a written statement in advance of the hearing. The summary below is based on that submission to the hearing together with verbal evidence.

The Respondent provided a statement of terms of employment which they contended were provided to the Complainant and signed by him and on behalf of the Respondent which complied with the legislation. The Respondent rejected the assertion that the Complainant had sought such a statement several times during his employment. He said that he had put his house in order following a visit by the Labour Inspectorate in or around 2005.

Unfair Dismissals Act,1977,as amended.

Dismissal was denied as a matter of fact. A manager for the Respondent stated that he had received a call from the Complainant that he was going to the doctor and that he subsequently attended the site on the 6th of August at which time he said that he was leaving the job to go and work on his own with his son. He said he would be leaving in a couple of weeks. The manager was shocked. The manager did notice that there was something wrong with his arm and the Complainant referred to his elbow and that he had been to a doctor in Lithuania. The manager saw the Complainant twice on the site subsequently meeting with the Respondent. 

The Respondent stated that he had never received any medical certificates, and none were offered. Having stated that he intended to resign his employment on 16th August 2019 to commence his own business working with his son, subsequently a member of the Complainant’s family but not the Complainant himself attended at the Respondent’s premises seeking confirmation of the termination of his employment which information the Respondent understood was required by the Complainant’s daughter for reasons associated with her own education. The letter of the 19th of September was provided in response to that request. The allegation that the Complainant had raised issues regarding injuries caused by working on his own in the period prior to his holidays was rejected. A labourer was not always provided for jobs. It was accepted that the Complainant did attend the site regarding his insurance/van, but no date could be provided for this discussion. The Complainant had asked how the money would be deducted: would it be taken out of his wages or in cash, and it was agreed that the payments would be made by cash which is the reason he attended the site for a third time, i.e., to drop the cash to the site. Asked at the hearing whether the Complainant was replaced, the Respondent stated that casual part-time employees were engaged to replace him and that there was no fulltime replacement available. The Respondent stated that there were no difficulties at any stage with the Complainant’s work, his attendance or sick leave at any time. The various conversations and disputed evidence cannot be extrapolated into a finding of dismissal.

Terms of Information Act 1994,as amended.

The document presented by the Respondent was disputed by the Complainant on the basis it was contended that it was not his signature on the document, that it was not dated and that the address given for the employment was not the address known to the Complainant. The Complainant provided no evidence to dispute the signature by way of an alternative example of the Complainant’s signature. The Respondent contended that was the correct address in the period 2005 and 2006 when the statements were drawn up for employees.

On the balance of probabilities, given that the document was not dated and, as was pointed out to the Respondent at the hearing, the rate of pay inserted on the document was a current rate of pay (€11.40 per hour) and could not therefore have been the rate of pay in 2005, it is reasonable to conclude that the extent to which the Respondent complied with section 3 of the Terms of Employment (Information) Act 1994 to 2020 was to obtain a signature from the Complainant to a document which did not contain his rate of pay, was not dated and a copy of which was not provided to the Complainant. Section 3 of the Act as amended in March 2019 states as follows:

“3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say— “.

The most likely scenario is that the Complainant was asked to sign a document in or around 2005 for the purposes of providing the Respondent with the necessary paperwork following the intervention of an Inspector. Equally, it is considered unlikely that the Complainant made several requests for such a document and, in any event, whether or not he sought the statement is immaterial. The Complainant is entitled to compensation for the failure of the Respondent to give him a statement of his terms of employment in accordance with section 3 of the Act of 1994, as amended.

Section 8 Unfair Dismissals Act 1977 to 2018

In circumstances where dismissal is denied by the Respondent there is a significant onus on the Complainant to prove that the employment was terminated without their consent. To prefer the evidence of the Complainant would require a conclusion effectively that he was dismissed while out sick having reported his illness to his employer, that the Respondent refused sick certificates. It would require acceptance that the employer had some motive related to issues around the employment or nonemployment of a labourer to such an extent that he decided to terminate the Complainant’s employment after 14 years during which time there was no evidence of any other difficulty with the Complainants work or dispute of any kind and when he could not be easily replaced. It would require a concrete reason for selecting August 16th as the date of termination when none is obvious or even apparent. It would require acceptance that the Respondent waited until the 19th of September to retrospectively dismiss the Complainant when the Complainant happened to attend at the site on that date for an unrelated reason. The Complainant did not refer to his daughter attending at the site at any stage in his submission until this aspect was raised by the Respondent. The Complainant failed to mention his discussion with the manager who gave evidence at the hearing of being the first person to be told that the Complainant did not intend to return to work. It would require acceptance that a Complainant who up to that point had no dispute with his employer sent his daughter to seek his payslips when there is no evidence of him raising any issue around payslips until he made a report to the Inspectorate at the same time as making the complaint of unfair dismissal.

While it is possible that there were some misunderstandings in the earliest conversations between the Complainant and the Respondent manager or managers due to the Complainants poor English (referenced at the hearing). However, the absence of any contact between the Complainant and the Respondent concerning a return to work or the provision of sick certs and the fact that he subsequently did exactly what the Respondent claimed he had said he would do, which was to set up a business with his son, undermine the Complainant’s case that he was in fact dismissed. It would be unreasonable to extrapolate the various conversations and disputed dates and events into a finding of dismissal, unfair or otherwise. the conversations into a finding of unfair dismissal.  In effect, the Complainant has failed to meet the standard of evidence that would be required to establish that it was the Respondent who terminated the employment rather than the Complainant, and for this reason the complaint of unfair dismissal fails.

Terms of Employment Information Act,1994,as amended.

The complaint by the Complainant under this legislation is well founded. In accordance with the terms of Section 7 of the Act, I decide that the Respondent is to pay the Complainant three weeks pay by way of compensation, amounting to €1365.

Unfair Dismissals Act,1977,as amended.

I decide that the complaint by the Complainant under this legislation, is not well founded.

Statement of Terms of Employment/Alleged Unfair Dismissal.