ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028215
Parties:
| Complainant | Respondent |
Anonymised Parties | A Supervisor | A Retailer |
|
|
|
Representatives | None | None |
Complaints:
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-00036219-005 | 03/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00038211-001 | 20/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00038211-002 | 20/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038211-003 | 20/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038211-004 | 20/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00038211-006 | 20/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00038211-007 | 20/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00038211-008 | 20/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 | CA-00038211-009 | 20/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038211-010 | 20/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038211-011 | 20/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00036219-001 | 13/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00036219-002 | 13/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00036219-003 | 13/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00036219-004 | 13/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00036260-001 | 08/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00036260-002 | 08/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00036260-003 | 08/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00036260-004 | 08/05/2020 |
Date of Adjudication Hearing: 09/03/2021
Workplace Relations Commission Adjudication Officer: Una Glazier-Farmer
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, andSection 13 of the Industrial Relations Acts 1969following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints
Background:
The Complainant filed a number of complaints on three different dates of 06 (by email) and 13 May (by post) and 20 June 2020 which were all heard on the same day. Both parties represented themselves. The Complainant filed an outline submission prior to the hearing. The Respondent filed a written submission in advance of the hearing. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. I carefully read all the documentation relating to this case and listened to the evidence presented. The following is a summary of the evidence only. The Complainant confirmed he earned a sum of €420 per week gross and €397.99 per week net and worked 30 hours per week. In a letter to the Respondent dated 10 July 2020, the Workplace Relations Commission sought his position as to the investigation of the trade disputes pursuant to s. 13 of the Industrial Relations Act 1969. No formal objection was received from the Respondent within the time frame of 21 day allowed for in the legislation. Consequently, the disputes were investigated. |
Summary of Complainant’s Case:
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00036219-005 This claim was withdraw as it is a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00038211-001 The Complainant states that he should have receive the sum of €5,032.46 in wages not received as of 2 June 2020. This includes holiday and sick pay. A contract of employment was later produced dated 15 January 2010 which provided for sick leave on the following terms: “Incapacity for Work: First 10 working days at full pay followed by 4 weeks at half pay and subsequent 8 weeks at one third of normal pay” He states he was on certified sick leave from 1 May – 1 June 2020. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00038211-002 The Complainant states that he should have receive the sum of €5,460.00 in notice not received as of 2 June 2020. He claims that his contract allows for a period of three months’ notice which was not paid to him. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-003 The Complainant states he did not receive his Public Holiday entitlements. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-004 The Complainant states he wishes to be compensated for loss of his Public Holiday entitlement on leaving his employment. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00038211-006 It is the Complainant’s case that he was not provided with a contract of employment. He later filed a copy of a contract of employment signed by him on 15 January 2010. On 25 April 2017 he emailed the Respondent following a discussion around a reduction in his wages with a reply from the Respondent on the same date. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00038211-007 The Complainant filed a complaint stating he received a statement of his core terms which deliberately contained false or mis leading information. On 28 June 2020 the Complainant filed a further submission stating that he agreed in 2017 to work with less responsibility as a Clerk at a rate of €14.00 per hour from Tuesday to Friday and an occasionally Saturday. On 25 April 2017 he emailed the Respondent following a discussion around a reduction in his wages with a reply from the Respondent on the same date. At the hearing the Complainant stated the following that he was not consulted as regards a change in the terms and conditions of his employment around a reduction in income. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00038211-008 The Complainant stated he was summarily dismissed on 2 June 2020 following a complaint made to the WRC in May 2020. He gave evidence there was no disciplinary procedures applied, no notice, no attempt to mediate and no right of appeal. He described been escorted from the premises by members of An Garda Síochana. On this date the Complainant had returned from certified sick leave and was told by the Respondent that his employment had been terminated on 15 May 2020. The Respondent handed him a letter setting this out on his return. He stated he refused to leave the premises and it was at this point An Garda Síochana were called. The Complainant commented that the time in which the Gardaí attended was very “rapid” and as it was “pre planned”. The Garda ask him to leave advising that if he failed to do so it would be arrested for trespass. The Gardaí demanded that he had over his keys and security device which he did so. There was a question from the Complainant as to whether it was a civil matter and should they be involved? Over a period of 2 hours the Gardaí , a period which he described as feeling intimidated. A Garda Sargent arrived at the premises who assured him he would not be arrested. The Complainant accepted that he ran into the safe room and was advised by the Respondent he was not allowed into that room as the safe was open. The Complainant noted he was a key holder for almost 15 years. He describes feeling humiliated. The Complainant left the premises after he was refused use of the bathroom. The Complainant gave evidence of having a clean disciplinary record and never took sick leave until May 2020. Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 CA-00038211-009 The Complainant stated that he was dismissed from his employment on 2 June 2020 because he invoked his rights pursuant to the 2015 Act. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-010 The Complainant claims he was penalised or threated with penalisation by the Respondent for invoking his rights under the 1997 Act. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-011 The Complainant claimed on the WRC claim form submitted on 20 June 2020 that he was penalised or threated with penalisation for giving evidence in any proceedings or giving notice of his intention of doing so under the 1997 Act. No further evidence or details of any proceedings in which he was involved in to further his claim. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00036219-001 This claim is withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036219-002 This claim is withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036219-003 This claim is withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00036219-004 The Complainant made claims that he was subjected to bullying by the Respondent. He outlined in his statement that the Respondent became abusive towards him and as he was the sole employee he had no avenue of complaint. He also stated he brought it to the attention of the Respondent on numerous occasions and that he promised to rectify it but to date no action has been taken. The Complainant outlined that in May and June 2015, he emailed himself a note of the abuse as a method of recording it. The diary entries were presented in evidence. On 25 April 2017 he emailed the Respondent following a discussion around a reduction in his wages with a reply from the Respondent on the same date. He described a situation in February 2019 when his wife was required to attend hospital and requested two days leave. Email correspondence was exchanged between the parties and presented at the hearing. One of the days was covered by a colleague and when he told the Respondent that he was unable to get cover for the second day he was told that he was no longer needed on Saturdays. The Complainant stated he was treated in an abusive manner which caused him stress for which he attended his doctor. The next complaint arose in March 2020 wherein he states he wrote to the Respondent when he was put on sick leave by his doctor. A copy of the undated letter addressed to the Respondent was presented as evidence with reference to a medical certificate for the period of 1 May 2020 to 14 May 2020. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00036260-001 This claim was withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036260-002 This claim was withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036260-003 This claim was withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00036260-004 This claim was withdrawn as it was a duplicate claim |
Summary of Respondent’s Case:
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00036219-005 This claim was withdrawn as it was a duplicate claim Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00038211-001 The Respondent produced a contract of employment which is neither signed nor dated. This contract was enclosed in his letter to the Complainant dated 30 May 2020 following a request for same. In this contract there is no provision for sick pay and the Respondent denied that the Complainant was owed payment while he was on sick leave. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00038211-002 In the contract of employment produced by the Respondent in his letter of 30 May 2020 minimum notice is provided for in accordance with the Minimum Notice and Terms of Employment Act 1973. The Respondent did not produce any evidence of payment or underpayment of this notice period. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-003 The Respondent stated there were no outstanding Public Holidays when his employment terminated. He states that he did not normally work on a Monday and got paid 1/5 of his normal working week as per the statutory entitlement. The following list of 2020 Public Holiday was presented: · Wednesday, 1 Jan 2020 – office was closed, and Complainant was paid in full. · Tuesday, 17 March 2020 – office was closed, and Complainant was paid in full. · Friday, 10 April 2020 – Good Friday which is not a Public Holiday. · Monday, 13 April 2020 – error in payroll which was rectified on 27 April 2020. A pay slip was submitted in evidence dated 29 April 2020 with 6 hours Public Holidays in the sum of €84. The Respondent stated that there was no written contract in effect at the time. There was a verbal agreement and the statutory illness benefit applied. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-004 The Respondent repeated his evidence that the Complainant was paid for the Public Holiday of 29 April 2020. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00038211-006 The Respondent stated he did not provide a contract of employment to the Complainant in 2010. Having explained the circumstances around the change in his business in 2017 the Respondent agreed orally with the Complainant that he would receive €14 per hour, his normal working week would be Tuesday to Friday with Saturdays when he was required to cover leave. Annual leave was agreed at 22 days per year with Public Holidays to be paid 1/5 of 30 hours as he did not normally work on a Monday. The Respondent stated they agreed verbally on 29 April 2017 following a series of emails and continued to work on this basis without issue until the termination of the Complainant’s employment. He did produce an unsigned and undated contract of employment which he provided to the Complainant, following his request, in a letter dated 30 May 2020. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00038211-007 Following a change in the terms of employment on 27 April 2017 the Respondent gave evidence that the parties met and agreed a reduced rate of pay for reduced workload. The Complainant was to carry out Supervisor duties only. The parties carried on their working relationship under these terms with a copy of a payslip attached to the Respondent’s submissions evidencing this rate of pay. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00038211-008 The Respondent outlined in detail the days before the Complainant’s termination and in particular around the 29 April 2020 when there was a disagreement between the parties about the closing time process. On the same day the Complainant stated he wanted to take his next bank holiday off on Tuesday 5 May 2020 and told the Respondent he didn’t care who would cover his shift. There was an exchange of words and foul language used by the Complainant. The following day the Complainant requested time off to attend his doctor following the argument stating that he felt stressed and had raised blood pressure. The Complainant was advised to go home and take the following day off. A medical certificate was sent to the Respondent for the period 1-14 May 2020 along with a letter outlining his grievances. The Respondents gave evidence that this was the first time he was notified of the grievances and responded in writing by letter dated 5 May 2020. The letter addressed complaints around Covid19 measures, the issue of the public holiday pay for Easter 2020, Respondent leaving early on two occasions and a colleague, the argument on 29 April 2020, annual leave requests, doctor’s appointment and stress at work. The letter also acknowledged their 15-year working relationship. There was a reference to a contract where the Respondent admitted there was no written contract but undertook to provide him with a written contract to reflect the terms they agreed on 29 April 2017. The Respondent wrote a letter dated 30 May 2020 to the Complainant setting out the timeline of events from 30 April to 15 May 2020, the date of termination. The Complainant was rostered for 15 May 2020 the day after his medical certificate. The Complainant did not return to work on 15 May and the Respondent states “I took it that you had left your position. I then had to put other staff in place to cover my business. It was 2.53pm on May 15th when you sent a message with a cert dated May 12th that had not details of the period for which it covered.” The letter continues to note that a medical certificate was sent on 29 May 2020 which was dated 15 May to 1 June 2020. The Respondent summaries the positions; “I am surprised. Given your departure and the blame you place on me and my business for causing you stress, I think it impossible that you could return without a meeting and signing a contract. Particularly as you so vehemently requested a contract knowing that we had an oral agreement up to then. Anyhow, I feel this is all a moot point. I took it that you left your position when you made no contact as to your status for work for Friday 15th May.” The letter concludes; “Now that you have made contact, I wish to confirm that I have sent your final payment details to revenue with cessation date 15/5/2020. Please return my office keys and hand-held alarm at your earliest convenience.” The Respondent outlined the events of 1 June 2020 when the Gardaí were called to the retail premises after the Complainant refused to leave the workplace. The Respondent denied the allegation that it was pre-planned to have the Gardaí at the premises and stated they were called for his protection. The Respondent concludes that the Complainant “employment when he gave no notice that he was extending his sick cert and he did not show up for work when rostered on May 15th.” Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 CA-00038211-009
The Respondent denies penalising the Complainant. The Respondent stated upon investigation at the hearing that there was no grievance raised with him by the Complainant. There was an angry exchange of words on 29 April 2020 when the Complainant threated to “sue” him but no specific reference as to the claims or forum he intended to pursue. A letter sent by registered post on 30 May 2020 advising the Complainant of the termination of his employment. Evidence was provided of a grievance procedure given to the Complainant on 30 May 2020. He did not become aware of the nature and details of the complaint until after the Complainant was dismissed from his employment. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-010 The Respondent denies penalising the Complainant. He did not become aware of the nature and details of the complaint until after the Complainant was dismissed from his employment. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-011 The Respondent denies penalising the Complainant.He did not become aware of the nature and details of the complaint until after the Complainant was dismissed from his employment. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00036219-001 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036219-002 This claim was withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036219-003 This claim was withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00036219-004 The Respondent presented a contract of employment together with a grievance and disciplinary procedure which was presented to the Complainant on 30 May 2020. The contract is not signed nor is it dated. He gave evidence that he never victimised, bullied or harassed the Complainant. The reference to a diary of events in the Complainant’s submission was the first time he had heard of such allegations. The Respondent was of the view they had a good working relationship, he had helped him get his own retail outlet and continued to employ him. He said it was the Complainant who became “extremely aggressive and I was the one victimised and harassed” towards the end of the Complainant’s employment. The Respondent wrote to the Complainant on 30 May 2020 with a timeline of events from April 2020. The letter concluded with the confirmation of the Complainant’s termination of his employment. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00036260-001 This claim was withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036260-002 This claim was withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036260-003 This claim was withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00036260-004 This claim was withdrawn as it was a duplicate claim. |
Findings and Conclusions:
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00036219-005 This claim was withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00038211-001 The contract signed and dated by both parties on 15 January 2010 clearly provides for sick leave payment at full pay for the first 10 working days and half pay for the following 4 weeks. The contract produced by the Respondent at the hearing is neither signed nor dated and was not accepted by the Complainant. Consequently, I find that the Complainant’s claim is well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00038211-002 S. 6 of the Payment of Wages Act 1991 provides redress where there has been illegal deductions from an employee’s wages by an employer. These wages include any sum payable to the employee upon the termination by the employer of a contract of employment without having given the appropriate prior notice of the termination, i.e. any sum paid in lieu of the giving of such notice. In this case, the Complainant states he was not paid any sum of his contractual notice. This would be a complaint under the Minimum Notice and Terms of Employment Act, 1973 which was not complained of by the Complainant. Consequently, the claim is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-003 The Respondent presented a payslip which clearly demonstrated payment of 6 hours for a Public Holidays dated 29 April 2020. The Complainant did not dispute this payslip. The Respondent admitted the payment was late as there was a mistake, but it was rectified in the next payroll. Consequently, the complaint is not well found. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-004 Where the Public Holiday entitled was paid the Complainant is not entitled to compensation for loss of the entitlement. Therefore, the complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00038211-006 This claim was withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00038211-007 The parties both agreed that there was a change in the duties, rate of pay and hours worked in April 2017 and email correspondence was produced. There was no updated contract of employment but email correspondence reflected the change in terms. From April 2017 until the date of dismissal the Complainant did not raise any issue with the terms and conditions of employment. The Complainant accepted the terms of employment without question. It is again noted that he was previously responsible for HR and payroll and therefore, could not be considered as not having the appropriate knowledge of such matters. While this is not a defence for an employer having carefully heard the evidence and reviewed the documents before me , I find no basis for this claim. Consequently, the Complainant’s claim that the false and deliberate statement is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00038211-008 Where an employee is found to have been dismissed from his employment there is an obligation on the employer to comply with the principles of natural justice to ensure that dismissal is procedurally fair and secondly that the reason for dismissal is fair as prescribed by s. 6 of the Unfair Dismissal Acts 1977- 2015: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” Noonan J. in Bank of Ireland –v- O’Reilly [2015] 26 E.L.R. 229 held: “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. “. It is clear from the Respondent’s own evidence that there was a clear disregard for the principles of natural justice, the decision to terminate the Complainant’s employment was made without having any regard for fair procedures. It was a unilateral decision made by the Respondent without any investigation or consultation with the Complainant. The Complainant was not provided with the allegations made against him, the right to be represented, the right to be heard nor was he given an opportunity to appeal the decision. The Respondent’s conduct was particularly aggrievance where the Complainant was on certified sick leave. He failed consult with the Complainant to enquiry as to how the Complainant was nor was he medically able to return to work on 15 May 2020 instead he unilaterally decided to terminate his employment. While there is no doubt there was heated exchanges between the parties prior to the Complainant going on sick leave but this cannot be nor failure to submit a medical certificate on the day the previous certificate expired, this falls significantly short of what is expected of the reasonable employer. The Complainant’s action on 2 June 2020 and the unnecessary waste of An Garda Síochana’s time do not reflect well on the Complainant however, these events came after the Complainant was dismissed from his employment. Financial Loss Financial loss, is defined in s.7(3) of the Unfair Dismissals Act 1977 as: “… any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Act 1967-1991 or in relation to superannuation. “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.” There is an onus on a Complainant to mitigate his loss and not simply wait for the hearing of the claim. The EAT discussed the duty to mitigate in Sheehan v Continental Administration Co Ltd (UD858/1999)wherein it stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”. I find that the appropriate redress in this case is compensation despite the Complainant’s request for reinstatement. Having carefully considered the interaction between the parties on 2 June 2020 and the fact An Garda Síochana were called to deal with the situation, reinstatement does not appear to be practical resolution for either party. He did not provide any evidence of his actual financial loss at the hearing but claims it was a loss of €420 per week, the sum he would have earned with the Respondent. It is noted that the Complainant has continued to work in his own premises. The Complainant’s own evidence is of particular note when he said he contacted two retail outlets and this was the extent of his efforts to seek alternative employment and that he “expected” to get his job back. This does not reach even the lowest threshold of an effort to mitigate his loss. Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 CA-00038211-009 There were numerous claims made on several separate complaint forms. This complaint that he was penalised for invoking his rights under the Industrial Relations (Amendment) Act 2015. The Respondent stated the Complainant did threaten to “sue” him at the end of April 2020 but gave no details. There is no evidence that a grievance was raised with the Respondent in April 2020 nor did the Complainant ever share any of his diary entries with the Respondent. There is evidence of an exchange between the parties but there is no follow up by the Complainant following the Respondent’s reply. All issues arose in 2017 and 2019 with the termination occurring in 2020. There is nothing before me to suggest that there was any link between the Complainant’s issues and the termination. Furthermore, it is the Complainant’s own case that he was dismissed from his employment while on sick leave on 15 May 2020 but did become aware until he returned to work on 2 June 2020. This complaint was filed by email on 20 June 2020. Having carefully reviewed the file, the first time the Respondent received notification from the Workplace Relations Commission was on 10 July 2020, after the submission of this claim and all other claims made by the Complainant. Consequently, the Complainant was not penalised or threated to be penalised as a result of seeking to invoke his rights under the 2015 Act. The claim is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-010 It was the Complainant’s case that as a result of filing a complaint to the WRC under the Organisation of Working Time Act, 1997 he was penalised in the form of dismissal. The Respondent stated the Complainant did threaten to “sue” him at the end of April 2020 but gave no details of any specific issue. This complaint was filed by email on 20 June 2020. Having carefully reviewed the file it does appear the Respondent did not receive any details of the claim from the WRC until by letter dated 10 July 2020 sent to his email address. It is clear from the evidence presented before me together with review of the file and applying the balance of probabilities test, the Respondent was not aware of the complaints and/or details of the complaint under the Organisation of Working Time Act 1997 on 20 June 2020 when the Complainant submitted his complaint form. Consequently, the Complainant was not penalised or threated to be penalised as a result of seeking to invoke his rights under the 1997 Act. The claim is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-011 The Complainant did not give any detail or evidence of his claim that he was penalised or threated for giving evidence in any proceedings or his intention to do so under the 1997 Act. Consequently, the claim is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00036219-001 This is a duplicate claim and was dealt with under CA-00038211-001 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036219-002 The Complainant by his own admission did receive a contract of employment. Consequently, the claim is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036219-003 The Complainant by his own admission agreed to the change of terms and conditions of employment. This was verified by the Respondent. It was accepted upon investigation by the Complainant that he was responsible for the HR matters for the first 7 years he was with the Respondent. He did not raise and issue at any stage between 2017 and 2020 as regards his terms and conditions changing. Consequently, I must find the complaint is not well founded based on the evidence before me. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of theIndustrial Relations Act, 1969 CA-00036219-004 There were no grievance procedures in place between the parties until the Respondent provide a procedure upon the request of the Complainant on 30 May 2020. It is noted that the Complainant was responsible for all HR related issues when he first began working for the Respondent. He confirmed at the hearing that he had relevant employment law knowledge. There was a series of emails produced by the Complainant together with responses from the Respondent. There was no reference to a grievance or notification that the Complainant was unhappy with these responses. There was a number of diary entries produced by the Complainant with complaints against the Respondent. He confirmed these were not previously shared with the Respondent. Gregory Geoghegan T/A TAPS v A Worker, Labour Court , INT1014 is clear when it comes to cases where there has been no attempt to resolve grievances internally:- “The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”. It appears the first indication that the Respondent was given of the Complainant’s grievances was from the WRC Complaint Form when he received notification on 10 July 2020. There is no evidence of any attempt to resolve the disputes internally. Consequently, the claim in not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00036260-001 This claim was withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036260-002 This claim was withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036260-003 This claim was withdrawn as it was a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act 1969 CA-00036260-004 This claim was withdrawn as it was a duplicate claim |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00036219-005 The Complaint was not unfairly dismissed under this complaint as it is a duplicate claim. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00038211-001 The Complainant’s claim is well founded. The Complainant was on leave for a period from 1 May – 1 June 2020. His working days for that period based on his normal working weeks of Tuesday – Friday amount to 10 days at the full rate of pay and 7 days at a half day rate of pay as provided for in his contract. There was no notice of a deduction by the Respondent. Consequently, I order that the Respondent pay the Complainant is entitled to the net amount of 10 days full pay and 7 days half pay (net after all lawful deductions are made). Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00038211-002 The complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-003 The complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-004 The complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00038211-006 The complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00038211-007 The complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00038211-008 I find the Complainant was unfairly dismissed by the Respondent within the meaning of s. 6 of the Unfair Dismissal Acts 1977- 2015. Accordingly, I make an award in the sum of €1,680 representing four weeks renumeration. The reason for this award is based on the Complainant’s own evidence of the poor efforts made to seek alternative employment, his expectation of be reinstated and the fact he continued to work in his own business during the time he waited for his claim to be heard. Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 CA-00038211-009 The dispute is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-010 The complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00038211-011 The complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00036219-001 This complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036219-002 The complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036219-003 The complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00036219-004 This dispute is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00036260-001 The complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036260-002 The complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00036260-003 The complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00036260-004 This dispute was not well founded |
Dated: 27th July 2021
Workplace Relations Commission Adjudication Officer: Una Glazier-Farmer
Key Words:
Unfair dismissal-payment of wages- industrial relations- terms of employment- organisation of working time act. |