Complainant

Respondent

Parties

Mariusz  Rudy

Staropolska Ltd

Representatives

Aine Curran of  O'Mara Geraghty McCourt Solicitors

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-00041297-001

28/11/2020

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

CA-00041297-002

28/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041297-004

28/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041297-005

28/11/2020

At the start of the hearing I explained the implications of a recent Supreme Court judgement in Zalewski v Adjudication Officer and WRC. This meant hearings are now held in public and decisions will not be anonymised. I also clarified that evidence should be taken on oath where there is a serious and direct conflict in that evidence. I told the parties I would be prepared to continue with the hearing without evidence being taken but I would consider what to do if a serious and direct conflict arose. Both parties confirmed they understood what I had said and that they were happy to continue with the hearing.

Summary of Respondent’s Case: the respondent submits the complainant was employed by them as a delivery driver from 1 August 2016 to 10 July 2020. He was involved in an accident whilst carrying out his duties on 26 February 2019. He submitted medical certificates until 5 November 2019. After this no further medical certificates were submitted and the complainant made no contact with the Director or anyone else in the respondent company.

The Director wrote to the complainant on 15 March 2020 requesting a medical certificate for the period from 5 November 2019. When he did not get a reply the Director wrote again on 15 May 2020 asking for medical certificates or any information as to when he would be returning to work. The Director wrote again on 25 June 2020 when he got no reply. He pointed out the complainant had not replied to his previous letters, he had not submitted medical certificates and given no indication when he might be returning to work. In these circumstances the Director said he had no choice but to let the complainant go from his position with the respondent. In these circumstances the respondent submits the complainant’s dismissal was not unfair.

The complainant wrote to the Director on 10 November 2020 saying he had only just found out he was let go since 10 July 2020.

It was only when the respondent received the WRC complaint form that the Director realised the complainant had moved. The complainant did not notify the respondent of his change of address and ask them to update their records.

The respondent submits that the complainant has indicated he was on Illness Benefit from the 26 February 2019 until January 2021. They submit the complainant has suffered no financial loss and rely on ADJ-00017942 in which the Adjudication Officer found that where the complainant is unfit for work due to ill health no loss accrues under the Unfair Dismissals Act, and in accordance with section 7(1)(c)(ii) of the Unfair Dismissals Act, where no loss accrues, the maximum compensation payable to the complainant is four weeks gross pay.

Summary of Complainant’s Case: the complainant submits he had an accident at work on 26 February 2019 and has been on Illness Benefit since then.  On 10 November 2020 he found out by accident, on the Revenue website, that he had been dismissed on 10 July 2020, without any proper notice from the respondent. He then sent a letter to the Director requesting payment for outstanding annual leave and Bank Holidays but he heard nothing. He submits the dismissal was unfair as he was not notified of the respondent’s intention to dismiss him.

Findings and Conclusions: the complainant went on sick leave on 26 February 2019, and he supplied medical certificates to cover the period up to 5 November 2019. No more certificates were provided and the complainant did not contact the respondent, so the respondent wrote to him in March, May and June 2020 but got no response. The complainant was dismissed because he made no contact. However, the complainant did not receive the letters from the respondent. He had moved in July 2017 and the letters were sent to his former address.

The complainant said the Director would have known he had moved because the respondent helped him buy the house and the Director lived nearby, and had visited the house when he left hospital after the accident. The Director said the respondent completed a standard mortgage earnings record form and their houses were more than 500 metres apart. When writing the letters to the complainant he used the address from payroll data. He says the complainant never formally informed the respondent of his change of address.

In deciding whether the dismissal was fair or unfair I have to assess if the behaviour of the respondent was reasonable. The letters writing in March, May and June 2020 were appropriate. If the complainant had received those letters and not responded then their decision to decision would have been reasonable. So, I have to understand if it was reasonable for the respondent to write to the complainant’s former address. The complainant did not formally notify the respondent of the change of address. It would not be enough to expect the respondent to change their records when they completed the earnings form for the mortgage application. It would be reasonable to expect the complainant to continue to submit medical certificates. However, there is an expectation on all respondents to contact staff who have been off work through illness for a long period to find out their progress and if they are likely to return to work in the future. The respondent undertook this process but to the wrong address. I conclude the complainant should have formally notified the respondent of his change of address. This would have ensured the company records were amended and correspondence sent to the correct address.

In these circumstances I conclude the respondent’s behaviour was reasonable and the dismissal was not unfair.

Summary of Complainant’s Case: the complainant submits he did not receive a statement in writing of his terms of employment.

Summary of Respondent’s Case: the respondent submits they issued the complainant during the summer of 2018.

Findings and Conclusions: the complainant started his employment on 1 August 2018. The respondent supplied a copy of an undated Statement of Main Terms of Employment which they say was issued during the summer of 2018. The complainant acknowledged this during hearing. The respondent contravened the legislation by not issuing the complainant with a statement setting out his main terms if employment within the time limits required by the legislation. However, the complainant gave no evidence that he suffered any detriment as a result. I find the complaint is well founded and in the circumstances I award one weeks salary; €475.

Summary of Complainant’s Case: the complainant submits that when he was dismissed he was not paid for overdue annual leave and Bank Holidays. This includes two weeks when he was due to be on leave but was on sickness benefit.

Summary of Respondent’s Case: the respondent submits in relation to annual leave that, in accordance with section 19(1A), payment for annual leave during illness is contingent upon an employee providing his employer with a certificate of a Registered Medical Practitioner in respect of that illness. The complainant provided certificates for the period up to 5 November 2019 but no more until his dismissal on 10 July 2020. The respondent accepts the complainant should have been paid for 5 days leave; €475. They further accept he should been paid for 6 Public Holidays during this period; €570.

Findings and Conclusions: I have assessed all the evidence in accordance with the OWTA and find the two claims are well founded. I accept the evidence of the respondent and award the complainant a total of €1,045.

CA-00042197-001: for the reasons given above I find the complainant was not unfairly dismissed.

CA-00042197-002: for the reasons given above I conclude the respondent contravened the Terms of Employment (Information) Act and find this complaint is well founded and I award the complainant €475.

CA-00042197-004: for the reasons given above I find this complaint is well founded and I award the complainant €475 for unpaid annual leave.

CA-00042197-005: for the reasons given above I find this complaint is well founded and I award the complainant €570 for unpaid Public Holidays.

Unfair dismissal