ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029012
Parties:
| Complainant | Respondent |
Anonymised Parties | An Apprentice Mechanic | A Garage owner |
Representatives | Terry Gorry Terry Gorry & Co Solicitors | none |
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-00038490-001 | 02/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00038490-002 | 02/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00038490-003 | 02/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00038490-004 | 02/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038490-005 | 02/07/2020 |
Date of Adjudication Hearing: 17/02/2021
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following 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 commenced employment with the respondent as an apprentice mechanic on 16 December 2016. His employment ended on 16 June 2020. His gross weekly pay was €389.05. He worked an average of 40 hours per week. A Complaint Form was received by the WRC on 2 July 2020. A remote hearing took place on 17 February 2021. The fact of dismissal is in dispute. |
CA-00038490-001, Complaint under the Unfair Dismissals Act, 1977
Summary of Complainant’s Case:
The complainant provided a detailed written submission. The complainant submits that he commenced a four-year mechanic apprenticeship through Solas, with the respondent on 16 December 2016. On 16 June 2020 the complainant was approached by his employer, the respondent, who told him that his employment was no longer available, and he would be effectively dismissed from the position as of 16 June 2020. At this time the complainant had completed most of his apprenticeship. On the day he was dismissed the complainant was told by the respondent that his position was no longer available, however, the complainant has since discovered that two new apprentices have started and have been carrying out the complainant’s work. In direct evidence at the hearing the complainant stated that he received a phone call from the respondent on 16 June 2020. During this phone call the complainant was told by the respondent that he had no position for him. This call had been preceded by several calls over the previous weeks during which the respondent had indicated to the complainant that there was no work for the complainant. The complainant also stated that he was told by the respondent that the garage was closing. Subsequently, the complainant stated, he found out the garage had not closed. The complainant stated he had taken the PUP as his employer, the respondent told him he should; however, if he had been given the option he would have stayed in work. The complainant’s representative wrote to the respondent on 30 June 2020, alleging he had been unfairly dismissed and seeking compensation. The respondent did not reply to this letter. The complainant submits that he was entitled to fair procedures and natural justice in respect of any decision to terminate his employment. The complainant submits that (i) there were no grounds to justify the dismissal and (ii) the complainant was not afforded fair procedures and due process before he was dismissed. |
Summary of Respondent’s Case:
The respondent submits that the complainant commenced working with him in May 2016 as part of a job seeker programme. The complainant was added to the payroll in September 2020. In December 2016 the complainant commenced a Solas apprenticeship. The respondent submits that the complainant was not dismissed but asked to leave his employment of his own volition. The respondent submits that he was disappointed when the complainant asked to leave his job as the garage was still open for business. The respondent submits that the complainant decided to leave because of his concerns of contracting Covid 19. The respondent submits that the complainant told him that he would go on the PUP payment. A witness for the respondent, another employee, gave evidence at the hearing. He stated that the respondent had given all employees, including the complainant, the option to stay on in employment and that he did not force anyone to sign onto the PUP. This witness recalled that the complainant had suggested that he would go on PUP. In response to a question put to him during cross examination, the witness stated that he had never heard the complainant say he was leaving or quitting. |
Findings and Conclusions:
There is a clear conflict of evidence here between what the complainant says happened in or around 16 June 2020. The complainant submits that he was told by the respondent that he was being let go as work had dried up; the respondent on the other hand submits that the complainant requested to end his employment. It is difficult to decide on which side lies the truth. However, the respondent did provide one witness who stated that the respondent gave all the employees the option of staying on or leaving to go on the PUP. This witness also stated that he had heard the complainant saying he would go on the PUP. In the absence of any other evidence, on the balance of probabilities, I find the complainant was dismissed but rather decided to leave his job of his own volition. |
Decision:
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.
I find the complaint is not well founded. |
CA-00038490-002, Complaint under the Minimum Notice & Terms of Employment Act, 1973.
Summary of Complainant’s Case:
The complainant submits that he was employed by the respondent for some four years or thereabouts. On 16 June 2020 the respondent terminated the complainant’s employment effective from the date of communication. The complainant submits that this is a clear contravention of the Act. As the complainant has worked for more than two years but less than four years, he is entitled to two weeks’ notice payment. |
Summary of Respondent’s Case:
The respondent submits that the complainant was not dismissed but asked to leave of his own volition to go on the PUP payment due to concerns of contracting Covid 19. The respondent submits that he was disappointed the complainant asked to leave as the workplace remained open, but he had no choice but to grant the complainant’s request. |
Findings and Conclusions:
I find that the complainant asked to leave his job of his own volition and is therefore the matter of employer’s notice does not arise. |
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.
The complaint is not well founded. |
CA-00038490-003, Complaint under the Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
The complainant submits that since commencing employment with the respondent in 2016 the complainant has not received a written copy of his terms of employment with the respondent company in clear contravention of the requirements of the Act.
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Summary of Respondent’s Case:
The respondent submits that he believed the complainant’s terms of employment were covered under the Solas Code of Practice for Employees and Employers signed by both parties when the complainant was registered with Solas in December 2016. If this is not the case the respondent accepts that there was no formal contract in place. |
Findings and Conclusions:
I conclude the complainant did not receive written terms of employment as required by the legislation. In these circumstances I find this complaint is well founded and award redress of four week’s pay; which is €1,556.20. |
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.
The complaint is well founded and award redress of four week’s pay; which is €1,556.20. |
CA-00038490-004, Complainant under the Payment of Wages Act, 1991.
Summary of Complainant’s Case:
The complainant submits that the respondent terminated the complainant’s employment without any due regard for the required notice period. Further to this the respondent failed to pay the complainant in lieu of notice and this payment is still outstanding. |
Summary of Respondent’s Case:
The respondent submits that the complainant left of his own volition and is not therefore entitled to payment in lieu of notice. |
Findings and Conclusions:
I find the complainant left his employment of his own volition and therefore not entitled to payment in lieu of notice. |
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.
The complaint is not well founded. |
CA-00038490-005, Complaint under the Organisation of Working Time Act, 1997.
Summary of Complainant’s Case:
The complainant submits that the respondent has not paid him for accrued but untaken annual leave. The complainant submits that he took some leave in 2019, perhaps five or six days, but he had not taken any leave in 2020. The complainant submits that he was deprived of holiday pay to which he was entitled to by law. |
Summary of Respondent’s Case:
The respondent submits that the complainant was only with him for one month of the 2020 leave year. |
Findings and Conclusions:
The respondent has failed in his obligation to maintain records and as such he must bear the burden of rebutting the complainant’s evidence. In this case I find the respondent has not rebutted the evidence to my satisfaction. Allowing for 15 days in leave year 2019 and five days for leave year 2020, I find the complainant is owed 20 days’ pay in lieu of holidays. |
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.
The complaint is well founded. I order the respondent to pay the complainant €1,556.20.
Dated: 16th July 2021
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Own volition, Covid-19, records |