Complainant

Respondent

Parties

Liam  Tuohy

Thomastown Castle Training

Representatives

  No Appearance by or on behalf of the Complainant

Stephanie Power, Maurice Power Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00033906-001

21/01/2020

This matter was heard by way of Remote Public Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 20 January 2020, the Complainant lodged a complaint that he had been unfairly dismissed with the Workplace Relations Commission.

On 30 January 2020, the Respondent Solicitors responded to the WRC expressing an interest in the case. They undertook to investigate the matter and take instructions.

Both parties were invited to attend a hearing in the case scheduled for 30 April 2021 at 09.00hrs.

On 25 March 2021, the Respondents Solicitors recorded that “the fact of dismissal is at issue “.

On 19 April 2021, I wrote to both parties seeking a written submission to guide my inquiry, in accordance with the guidelines set down for remote hearings.

I did not receive the requested documents from either party.

The Complainant filed a complaint of Unfair Dismissal on 21 January 2020. He gave some detail that he had been dismissed on 17 December 2019, following an argument with his Boss.

He provided some details on the context from his contention, outlined above. The Complainant qualified that he had not worked since his dismissal.

Some time passed, through the National Pandemic and on 18 March 2021, the Complainant was invited to attend a hearing in his case, scheduled for 30 April, 2021at 09.00hrs via remote hearing.

I sought to secure an outline submission on the details of the case on 19 March 2021, in preparation for the hearing.

On 29 April, the WRC, in preparation for the remote hearing sought names of attendees expected to join the remote hearing the next day.

The WRC received an email in response from a separate named person attributed to the complainant’s email address, which had accompanied the origin complaint form. The email attributed to the complainant, submitted that he had no awareness of the forthcoming hearing as he had not received any detail. He stated that he would be unable to attend the hearing.

On 29 April 2021 at 16.03 hrs, the WRC Postponements Section informed the Complainant by email that his request for postponement had been unsuccessful and the “Hearing will proceed “

There was no appearance by or on behalf of the Complainant at hearing. There was no subsequent communication from him from that date.

The Respondent has disputed dismissal.

The Respondents Representative entered an expression of interest in the case on 30 January 2020.

On 25 March 2021, the Respondent Solicitors apologised for a delay in response as their client “had not received our previous email correspondence”

The Respondent representative disputed dismissal and submitted that “the Complainant walked off the job”

The Respondent did not reply to my request to furnish a written submission in time for the remote hearing. On 23 April 2021, they submitted the names of 3 witnesses for the Respondent response to the claim.

On the morning of the hearing, I explained the transitionary arrangements which had followed Zalewski v Adjudication Officer and WRC [2021] IESC 24 in terms of the move to Public Hearings and the active preparation being made to introduce facilities for administration of the oath/affirmation.

Counsel for the Respondent responded and submitted that his clients had no issue with a Public Hearing. He affirmed that the Complainant had not attended the hearing. The Respondent had been prepared to address his claim at hearing.

Counsel went on to seek that the claim be struck out considering the Complainants nonattendance. He submitted that as the Respondent had already contested the facts of dismissal, the burden of proof for dismissal lay with the Complainant and in his absence, he had not satisfied that burden of proof.

Counsel clarified that the complainant had submitted an incorrect legal entity as the Respondent title on his complaint form. He submitted an alternative legal title, which I have recorded on the file.

Counsel sought that the case be dismissed.

I have been requested to inquire into the facts of this case and to provide a hearing to the parties, for that purpose.

The claim is for Unfair Dismissal in accordance with Section 6 of the Unfair Dismissals Act, 1977.

Section 1(a) of the Act defines dismissal in relation to an employee.

The timing of this hearing came in the aftermath of the Zalewski case as outlined earlier. I was obliged to share the transitionary arrangements with Parties and to await their responses. In the absence of the Complainant, and no further request for Postponement, I was left to work with the Respondent alone to honour these notifications of change. I am satisfied that the Respondent accepted a Public Hearing and did not declare that provision of the Oath/ Affirmation was necessary on this occasion.

Instead, the Respondent was aggrieved by the Complainants absence from hearing, given the lengths that the Respondent had made to prepare to answer the claim of Unfair Dismissal.

For my part, I engaged in a review of the Electronic file and I noted that the same email address as appeared on the original complaint form dated 20 January 2020 appeared on a series of electronic communications to the Complainant in advance of 29 April 2021. I cannot accept that he was not on notice of both documents received from the Respondent or of the notification of hearing, or of my request for an outline submission in his case.

 I am strengthened in that belief by   the presence of the 29 April ,2021 email on file, which indicated his lack of ability to attend the hearing. The WRC had phoned the Complainant directly to illicit the names of his witnesses in the case.

 The email in response   did not appear to emanate from him personally yet was signed in his name.  At the very least, I would have expected the Complainant to respond to the WRCs refusal to grant a pre-hearing Postponement, by making a brief personal appearance the following day at hearing to plead his position and at the very minimum outline his case or seek a further Adjournment.

This did not happen. I waited for 5 days under WRC Protocol and there was no further contact from the Complainant to explain his nonappearance at hearing.

I appreciate that the Complaint in this case was lodged a short time before the commencement of the National Covid 19 Pandemic. I understand that an unavoidable administrative delay prefaced the hearing in the case. I note that the Respondent linked in with the WRC during this period, but there was no contact from the Complainant. Both Respondent documents were copied to the complainant at his pro-offered email address.

 However, I am satisfied that the hearing in this case was scheduled to allow the complainant to ventilate his case. He was informed that his request for postponement had been unsuccessful on the day prior to hearing and he took no further action.

As the facts of dismissal were contested. I needed to hear from the Complainant to outline the facts attributed to the dismissal and to her any resulting evidence, he wished to present. The burden of proof rested with him.

In the absence of evidence from the Complainant, I find that he has not satisfied the necessary burden of proof in the face of a contested dismissal.

I must conclude that he was not unfairly dismissed.

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 that the Complainant did not avail of the opportunity offered to present his case at hearing on 30 April 2021. I am satisfied that he was properly notified of the details of the remote hearing. He had requested a postponement, which had been vetoed prior to the Hearing day. The Complainant did not advance on that position. I did not receive an outline submission.

As the facts of dismissal were disputed, the Complainant has not satisfied the necessary burden of proof in the case to prove that a dismissal occurred.

I must conclude that he was not unfairly dismissed.

Claim for Unfair Dismissal, no appearance by the Complainant.