ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00032573

Parties:

	Complainant	Respondent
Parties	Ryan O'Neill	Moore Cleaning Services Ltd

Representatives

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-00043211-001	23/03/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00043211-002	23/03/2021

Date of Adjudication Hearing: 26/08/2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

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.

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.

Background:

The Complainant was employed as a Cleaner 16th May 2019 to 24th September 2020. He was paid €12.00 per hour. He has claimed that he was unfairly dismissed and has sought compensation. He also has claimed that he had to work seven days a week without a rest period.

The Respondent has denied these claims.

1)Unfair Dismissals Act CA 43211-001

Summary of Complainant’s Case:

He stated that he raised queries about working seven days per week. He also requested an increase in pay. The Respondent confirmed that they would look into it. The Respondent asked him to work Sundays. He understood that they were looking into the pay rise request. He was out sick and his child got the Covid. He advised his employer of this and received responses from them. He stated that he never was aware of the offer or the emails especially the 24th September one, which purported to refer to him as deemed to have resigned his position. He stated that he doesn’t use email and so could not have received this email. On 21st September he texted “Hows it going am I back to work today”. The Respondent knew that he wanted to work but they dismissed him because he had asked for a pay rise and queried working seven days a week. He is seeking compensation. He sought employment without success. He registered with Social Welfare and other websites. He applied for about 20to 500 jobs since and had 4/5 interviews.

Summary of Respondent’s Case:

The Respondent rejected the claim that they had dismissed him. The Respondent stated that they had a difficulty getting staff, so it was in their interests not to have to terminate this employment. They stated that when the Complainant eventually raised the issue of seven days a week working that practice stopped. The Complainant was on holidays August 24th to 29th, he worked three days after that and then went absent till 19th September 2020. There was a company meeting on 21st September following which an email was sent to him confirming the job offer of 8 hours on Saturday and 8 hours on Sunday for the off season similar to the previous year that he worked. They sought the Complainant’s acceptance of that offer. He failed to accept the offer which was the same that he operated the previous year. Management phoned him and then texted him but got no response. They understood that he had told a member of management that he was not willing to accept the weekend work offer. A further email was sent on 24th September advising him that as he had failed to respond to the company’s messages they had no option but to conclude that he no longer wished to remain as an employee and that he was deemed to have resigned his position. He was also given the opportunity to contact the company if he wished to return to work he could commence work the following Saturday. They got no response from the Complainant and so they deemed that he had resigned his position. They also added that the Complainant exchanged WhatsApp and received his pay slips by email therefore he used these as a means of communication. The Complainant was advised by his Supervisor that an email had been sent to him which was advising him of the work that was available and seeking him to respond. So, he was aware of that offer. It is a condition of employment since the outbreak of Covid that staff accept communication via email. They reject that he was dismissed from his employment. He was deemed to have resigned his position by not accepting the job offer.

Findings and Conclusions:

I note that conflict in this case.

I note that the Complainant began working Saturdays and Sundays in the Wintertime and it increased and became Monday to Fridays in the Summertime with options for additional hours, which he worked.

I note that the Complainant did raise working seven days with the Respondent, but that matter was resolved and it ceased by 29th June 2020.

I note that the Complainant requested an increase in pay, which was not conceded.

I note that the Respondent business had to tender for the contract and then they offered the Complainant Saturday and Sunday work for the Wintertime as he had previously worked.

I note that a complete breakdown in communication led to the termination of his employment.

I find that very little time was afforded to the Complainant from 21st to 24th September before the employment was terminated.

I find that the Respondent acted hastily in terminating his employment.

I find that if as they stated, there is a difficulty in getting staff then they could have used all means of getting the message to the Complainant.

I find that when they got no response then they should have utilised the Supervisor or somebody to make direct contact with him, but they failed to do so.

I find that there was a dismissal.

I note the Complainant’s assertion that he does not use emails, yet he received his pay slips through emails.

I note that he used text messages.

I find that he could have called to the work office to follow up, but he didn’t.

I find that there was a dismissal and that the dismissal was unfair because the Respondent acted hastily in terminating this employment.

I find that the Respondent failed to make a serious attempt to communicate with the Complainant.

I find that the most appropriate redress is compensation.

I find that the Complainant has contributed significantly to his dismissal.

I find that he had a responsibility to communicate with his employer, which he failed to do.

I also find that he has not mitigated his loss by more actively seeking employment.

I found that he was very vague about the jobs that he applied for and the few applications that he made.

I find that these matters must be reflected in the quantum of the award.

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.

For the above stated reasons, I have decided that there was a dismissal and that the dismissal was unfair.

I have decided that the Complainant has contributed significantly to his dismissal by his lack of communication and effort to find work.

I have decided that the Respondent should pay the Complainant compensation of €3,000 within six weeks of the date below.

2)Organisation of Working Time Act CA 43211-002

Summary of Complainant’s Case:

He stated that throughout his employment he had to work seven days per week without a 24-hour break. He worked seven days a week for the first year of his employment.

Summary of Respondent’s Case:

They stated that the last time that the Complainant worked seven days a week was on 29th June 2020 and so this claim is out of time as it was not presented to the Commission within six months of the alleged breach. They stated that when he commenced employment he worked Monday to Friday but due to the nature of this contract there were opportunities to work extra hours at weekends. The Respondent was not aware of any issues raised with management regarding working seven days a week. This matter was discussed with him in May 2020 and that apart from an emergency requirement for him to work weekends it did not occur after that, in fact the last time that he worked seven days a week was on 29th June 2020. However, this claim is out of time.

Findings and Conclusions:

Time limit

I note that this claim was presented to the Commission on 23rd March 2021 therefore the period that may be investigated is 24th September to 29th September 2020, the date of his termination.

I note that the Respondent asserted that the last time that he worked seven days a week was 29th June 2020. This was accepted by the Complainant.

Therefore, I find that this claim was not presented to the Commission within six months of the alleged breach.

Therefore, I find that this claim is out of time.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons, I have decided that this claim is not well founded and so it fails.

Dated: 14th October 2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Claim out of time also unfair dismissal