Complainant

Respondent

Parties

Stephen  Reid

Gammell Glazing Ltd

Representatives

Michael O'Sullivan

ARRA HRD

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00038738-001

17/06/2020

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

CA-00038738-002

17/06/2020

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

CA-00038738-003

17/06/2020

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

CA-00038738-004

17/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00038738-005

17/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00038738-006

17/06/2020

The Complainant was employed as a window fitter/installer. He was paid an hourly rate of €15.59.

He commenced employment on 12 March 2018.  The last day he worked for the Respondent was 20 December 2019.

In the calendar year 2019, his gross pay was €24,694.89 which gave him an average weekly pay of €465.94.  However, applying the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977, this resulted in an average weekly pay of €577.19.

It was accepted by both sides that the complainant did not work a 40-hour week for a lot of 2019.  The Respondent submitted a breakdown of payments to the Complainant in 2019. For 23 weeks, the Complainant worked 40-hour week and the remainder a shorter week. When the Respondent did not have enough work, the Complainant was facilitated with the system known as X and O's for Social Welfare.

The lowest weekly payment the Complainant received was €225.97 gross. 

CA-00038738-001: 

This complaint relates to payment of outstanding wages due to the Complainant having to work a week in hand.

CA-00038738-002:

The Complainant confirmed that he had not received any written terms of employment.

CA-00038738-003:

The Complainant confirmed that he did not receive a statement of his core terms in writing.

CA-00038738-004:

In January 2020, the Respondent told the Complainant that he could no longer stamp casual dockets for him for social welfare and he provided him with a letter of redundancy for social welfare.

He denied any assertions by the Respondent that he resigned from his position. He gave evidence as to the Respondent's brother commencing work on 16 March 2020 the Respondent.

CA-00038738-005:

The Complainant did not receive any notice of redundancy.

CA-00038738-006:

This complaint was filed in error. The Complainant was not a fixed term employee.

CA-00038738-001: 

The Respondent provided evidence that the Complainant was paid €1153.13 the 31 December 2019 which covered his weekly in arrears in addition to holidays and public holiday pay.

CA-00038738-002 and CA-00038738-003: 

The Respondent accepted that the Complainant was not provided with a contract of employment or his core terms of employment.

CA-00038738-004: 

The Respondent's case was that no stage did it dismiss the Complainant. The Complainant sought and was given in January 2020 a letter which facilitated him seeking job seekers benefit from the Department of Social Protection.  The Complainant was effectively placed on layoff.

The Respondent submitted text messages between the parties and explained that following the lifting of restrictions on the closure of construction sites in May 2020, the Respondent offered employment to the Complainant.

CA-00038738-005: 

The Respondent submitted that the Complainant was laid off in January 2020 and when work became available in May 2020, work was offered to the Complainant, but he declined same.

The Respondent submitted a letter from its accountant confirming that the director’s brother was employed from 1 June 2020.

The Complainant was not entitled to any notice payment.

CA-00038738-006: 

The Respondent submitted that this was not a relevant claim. The Complainant was employed in a permanent ongoing arrangement. He was not a fixed term or part-time worker.

CA-00038738-001: 

It was accepted by the parties that all payments were up-to-date.

 CA-00038738-002 and CA-00038738-003: 

The Respondent accepted that no written terms of employment were provided to the Complainant.

CA-00038738-004: 

As the fact of dismissal was in dispute, the burden of proof is on the Complainant to show there was a dismissal.

I have reviewed the text messages dating back to 1 December 2019.  On the 1 December 2019, the Respondent asked the Complainant "do you want a letter for the social I'd say it will be like this to the end of January"

I was provided with a handwritten note from the Respondent (undated) but provided on the 1 December 2019 which set out

Stephen Reid is employed with Gammell Glazing Ltd. Due to lack of work for the foreseeable future I can only offer him part-time work from full-time. Any queries please contact me.

On 14 January 2020 the respondent sent a text to the Complainant "I can give you a letter to go on the dole fully I have nothing big coming for a while so if you get a few days anywhere go ahead"

All I have reviewed the letter provided from the Respondent on 15 January 2020. It is addressed to Social Services department, Blackall, Mullingar.

It set out

To whom it may concern,

Due to projects being put on hold I can no longer offer full/part – time work to Steven Reid.  If you have any queries please call the number provided.

The Complainant relies on this letter as Notice of termination of employment. The Respondent asserts that it is a letter of layoff.

The evidence presented to me was that the Complainant attempted to obtain alternative work for a concrete company and went for an interview with them in January 2020.  The respondent's position was that the Complainant gave notice of resignation at that time. The Complainant denied this.

I was furnished with a text 24th of January 2020 from the Complainant which set out

"Do ya still want me to send on that notice I nearly forgot about the week in hand".

The next contact between the parties was 15 April 2020 when the Complainant emailed the Respondent looking for work.

I was provided with reply from the Respondent to the Complainant on the 28 May 2020 with an offer of work.  The Complainant replied to say that he would be interested but that he was chasing a few things online also. He stated if he was to go back to work that he would be looking for €15 per hour minimum. Ultimately by text on 31st of May 2020 the Complainant informed the Respondent that he tried ringing but that he would not be taking up his offer of employment.

I have considered all the evidence presented to me both in writing and verbally at the hearing. 

While the Respondent’s letter of the 15 January 2020 was addressed to the Department of Social Protection and the wording did refer to projects being on hold, it did not meet the accepted definition of layoff in that it did not set out that the cessation of work would be temporary. 

The reference to notice from the Complainant adds to the unclear situation between the parties, but even if the Complainant was considering resigning, he should have been allowed a period to reflect on whether he was or not. 

I appreciate the impact of the Covid 19 pandemic in March 2020 and note the next offer of work to the Complainant at the end of May 2020 post-dated an email from the Complainant seeking work in April 2020.

Having considered the evidence of both witnesses at the hearing, I prefer the evidence of the Complainant. I accept that there was a dismissal of the Complainant on the 15 January 2020 and I find that the Respondent had a casual attitude to the Complainant’s employment status.  It seems to me that he was hoping he would drift off into other employment.  That was not a fair situation to put the Complainant in and had the Respondent taken advice as to the correct procedures to follow, he could have managed this situation in a far better way.

Section 6 of the Unfair Dismissals Act 1977 as amended sets out: -

6. Unfair dismissal

(1) 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.

As there were two employees in employment at the time of the Complainant’s dismissal, even if it was a redundancy situation, no process was implemented by the Respondent to justify the selection of the Complainant for redundancy. 

The Complainant gave evidence of his efforts to obtain alternative work.  This was extremely minimal.  Had the role in the concrete company materialised, he would have found work within 4 weeks, however he provided little evidence of seeking work from then until October 2020.

Section 7 of the Unfair Dismissals Act 1977 (as amended) sets out: –

 7. Redress for unfair dismissal

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following [the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

[(c)

(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.]

[(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.]

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

[(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.]

[(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the [Social Welfare (Consolidation) Act 2005] in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.]

In Sheehan v Continental Administration Co Ltd UD 858/1999 the Employment Appeals Tribunal found the onus of proof lay upon the Respondent to show that the Complainant did not act reasonably in all the circumstances. The Tribunal ruled that it was not reasonable to merely place oneself upon a list with various recruitment agencies. A more ‘pro-active’ approach was required. The Tribunal continued:

 “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.”

Similar views were expressed by the Labour Court in Smith v Leddy UDD 74/2019 where it was said that the Court expected to see “evidence that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment”.

The Respondent's representative submitted that the Complainant's efforts to minimise his loss were not enough.

I accept this submission in the main and find that I have not been provided with the level of evidence expected as set out in the above cases from the Complainant to cover all the period between January 2020 and start of October 2020.

I am conscious of the difficulties in construction recruitment during the Covid-19 pandemic. The shutdown in construction activity from 28th March until 17th May 2020 (inclusive) which was a total of 7 weeks.  I have added 4 weeks to cover the time the Complainant presented evidence for. 

In these circumstances of the above, I award the Complainant compensation amounting to circa 11 weeks gross salary. 

CA-00038738-005: 

The Complainant was not a fixed term worker and this complaint fails.

CA-00038738-001:  This complaint is not well founded

CA-00038738-002:  This complaint is well founded.  I award the Complainant compensation amounting to 4 weeks’ pay:  €2,300.00

CA-00038738-003:  This complaint is well founded.  The award for this is taken into account in the award for CA-00038738-002.

CA-00038738-004:     This complaint is well founded.  I award the Complainant €6,350.00.

CA-00038738-005:   This complaint is not well founded.

Unfair dismissal.  Requirements for Lay off to apply.