Complainant

Respondent

Parties

Daniel  Sikora

Liam O'Mahony                        T/A Liam O'Mahony Auto Repairs

Representatives

Daniel Snihur , Independent Workers Union

 No Appearance by or on behalf of the Respondent

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-00035756-001

18/04/2020

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

CA-00035756-002

18/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00035756-003

18/04/2020

On 18 April 2020, the Independent Workers Union submitted three claims on behalf of the complainant, A Polish Mechanic.

The claims addressed a claim for unfair dismissal, terms of employment and annual leave.

The Union also sought the intervention of the WRC Inspectorate.

The complainant was supported by the Polish Interpretation at hearing.

The Complainant case was conjoined with ADJ 28113 at hearing.

There was no appearance by or on behalf of the Respondent at hearing. No defence was filed in the case.

The Hearing commenced at 12.15 hrs, having allowed time for the Respondent to make an appearance or to provide an excuse for delay.

The Union outlined that the complainant had worked as a Mechanic at the Respondent Garage from 3 June 2015 to the date of his dismissal on 4 November 2019. The Union submitted that the first 9 months of employment were categorised as “ unofficial “

 He earned a nett pay of €480.00 in cash for a 43-hour week and was not provided with a contract of employment. He worked Monday to Friday with some overtime

There were 4or 5 other workers and the business provided mechanic services to Police cars.

CA-00035756-001 Unfair Dismissal

The Union submitted that the complainant had been dismissed from his position by means of a letter dated 4 November, which was received by chance on 19 November 2019.

The context for this was that both the complainant and his colleague were at work on 4 November 2019, when his colleague became unwell and left work. He returned at 2pm and deteriorated.

The Complainant worked a full day and was requested by the owner to collect his colleague.

The Proprietor informed the complainant that they were both dismissed

Nothing further transpired until the complainant found the following letter in his letter box on 19 November 2019.

The letter stated:

This letter confirms that your employment with Liam O Mahony Auto Repairs is terminated for cause effective immediately.

Your employment is terminated because you presented yourself to work intoxicated on numerous occasions and in particular on 4 November 2019.

As you can appreciate being intoxicated in our particular line of work Is not only a danger to yourself but to your work colleague’s safety and safety of our customers.

The Revenue Commissioners have been informed of your termination and I have enclosed a Proforma P45 for your records

Please let me know if I can assist you during your transition

. The Union submitted that the dismissal was surprising as the Complainant had been given a pay rise one month previously.

Evidence of the Complainant:

The Complainant said that he was at work from 8 am on 4 November 2019 for the full day. He normally worked alongside his colleague in the conjoined case.

He returned home around 6 pm and was requested by the owner to collect his colleague from the workplace. The owner was angry and verbally abusive. He was unable to recall the content of this anger, apart from remembering that he swore. This was the typical culture of the workplace.

Both the complainant and his colleague in the conjoined case were dismissed. He went home.

As he had not received this in writing, and thought his employer was just having a bad day, he reported for work the next day, but was sent home by the Owner on his arrival between 8 and 9 am No reasons were given. He demanded to be paid for 4 November and he received €80 for that day in cash.

He stayed at home from that date and received the letter of dismissal dated 4 November, on 19 November. He denied intoxication.

The complainant said that the workplace did not have a grievance or disciplinary procedure.

He alluded to the Union letter dated 5 February 2020 sent on his behalf to his former employer which sought to address the dismissal, the shortfall in PRSI paid, annual leave, written statement of employment to which there was no response.

He was unable to recall whether or when he applied for job seekers benefit on conclusion of employment

The complainant had difficulty seeking new work as he did not have a driving licence. He found work in Poland in June 2021.

The Union did not forward details of PRSI or Revenue statements.

CA-00035756-002 Terms of Employment

The Complainant submitted that he did not receive a statement of terms of employment He submitted that he had requested it but had not received it.

CA-00035756-003   Annual Leave

The Complainant did not receive his annual leave entitlement.

I questioned the complainant on the allocation of his annual leave. He confirmed that he received two weeks during summer and had time off at Christmas. He confirmed that he had received public holidays.

I requested that the Complainant sent in his PRSI records.

The Complainant exhibited P60

2016        €6, 626.26

2017 €8,361.81

2018 €7,718.59

He exhibited pay slip s, 2017 -2019 for varying weekly amounts €160.80 to €222.23 to €307.70

He also exhibited a written declaration attributed to the Respondent, which described him as a part time worker. He could not recall the targeted audience for that letter.

The Particulars of Leaving form reflected a weekly pay regime, was dated 19 November 2019 and reflected an annualised pay as €7,040.00 for 45 weeks of insurable employment.

There was no appearance on or behalf of the Respondent at hearing.

The Respondent has not filed a defence in the claims.

CA-00035756-001 Unfair Dismissal

The Respondent has not filed a defence in the claims.

There was no appearance on or behalf of the Respondent at hearing.

CA-00035756-002 Terms of Employment

The Respondent has not filed a defence in the claims.

There was no appearance on or behalf of the Respondent at hearing.

CA-00035756-003   Annual Leave

The Respondent has not filed a defence in the claims.

There was no appearance on or behalf of the Respondent at hearing.

CA-00035756-001 Unfair Dismissal

I have been requested to make a decision in this claim for unfair dismissal. In reaching my decision, I have had regard for the details submitted on the complaint form, oral submissions from the Union and the evidence adduced at hearing. I was unable to review the revenue and prsi records as they were not forwarded as requested.

The Respondent, on whom the burden of proof rests in the case did not file a defence in the case, nor did he attend the hearing. the Union confirmed that the business continued trading. 

A careful perusal of the file demonstrated that the Respondent was notified of the claim by letter dated 12 October 2020. this did not prompt a response.

The WRC sought an email detail for the respondent from the Union, but this was not forthcoming. This prompted notification of hearing dated 7 April 2022 to issue in letter format.

I am satisfied that the Respondent was on notice of the claim and has chosen not to file a defence or submission in response to the complaint form.

At the commencement of the hearing, I delayed the hearing to allow for the Respondent to arrive. I also waited the pre -requisite 5 days post hearing for the Respondent to explain or excuse his nonappearance. There is simply no record of the Respondent responding to the claim in any format. The pay slips I received at hearing carry his name and employer number.

As the WRC is provided with statutory authority to inquire into claims for unfair dismissal in accordance with the Unfair Dismissals Act, 1977, I found it disrespectful when the Respondent did not make an appearance or record a representative presence, or even give a reason for same.  

I have recorded the Respondent as a “no show “Party.

I have had regard for the Union letter dated 5 February 2020 framed to the Respondent and referred to a hearing, which stated:

1.       The dismissal for the complainant was unfair and the union signalled an intention to consider a referral of claims to WRC.

2.       Availability for work between 5 and 19 November 2020

3.       Little or no PRSI paid.

4.       No annual leave

5.       No written terms of employment

The Union sought to secure an agreement within 14 days but did not receive a response. I have no means of validating if the Respondent received this. I accept the Union submission that they did not receive a response.

My jurisdiction in this case is found in Section 6 of the Unfair Dismissals Act, 1977.

Unfair dismissal.

6.— (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.

There is a defence permitted to the Respondent in Section 6(4) of the Act

4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The Respondent did not avail of the opportunity to lead with any arguments under this defence.

The Respondent did not address the burden of proof in the case.

6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

I inquired into the circumstances of the case and took evidence from the complainant. I found a very frail and ambiguous employment, unsupported by contract of employment and interspersed by a Respondent declaration of the Complainants part time status dated 11 March 2019 this declaration recorded the Complainant as a part time employee 2016-2019. The complainants paid hours of employment were detailed on pay slips

2017 as €160.80

2019   as €307.70 /222.23

These payments were augmented by cash, it seems.

My role in this case is to consider the reasons for dismissal and apply the provisions of section 6 to the facts surrounding dismissal.

I accept that a dismissal occurred as outlined in the letter dated November 4, 2019, which the complainant attributed to being received on November 19 through a chance encounter at his letter box.

It is not my role to decide whether the complainant was intoxicated or not. My role is to decide whether the decision to dismiss was based on substantial reasoning and/or whether if fell within the band of reasonableness for a reasonable employer as outlined in section 6(7) of the Act?

This is difficult to complete in the absence of the Respondent, to whom the decision to dismiss was attributed.

I have inquired into the circumstances of the dismissal with the complainant.

In analysing the Complainant evidence, I found his evidence to be frail and vague. I did not find any evidence of the presence of a grievance procedure or disciplinary procedure.

I shared the Unions concerns surrounding an apparent ad hoc approach to tax/prsi. The Complainant submitted that he had sought a contract of employment to counter this, but none was forthcoming.

The letter dated 4 November 2019 was a Summary dismissal “for cause “which was not clarified, outside a repeated occurrence of intoxication. There was no hearing or visible deliberative process, and the process did not have an appeal

I have had regard for a recent Labour court case in Fit 4 life gym ltd and Megan Healy UDD 2241, where the Court considered the procedural framework surrounding a dismissal and found significant shortcomings.

 The fact that on the 11thMarch the Respondent issued a letter setting out additional basis for the dismissal and advising the Complainant that she could appeal the decision to Ms Myers who was the person who had made the decision to dismiss her and had told her two weeks earlier the decision was irreversible.

It is clear to the Court from the submissions and the evidence given in Court that in coming to the decision to dismiss the Respondent did not utilise the Company disciplinary procedure or any procedure at all.

The Court finds that the failure to follow any procedure or to afford the Complainant an opportunity to be heard prior to making the decision to dismiss, deprived the Complainant of a fair procedure. On that basis, the Court finds that the decision to dismiss was unfair. However, the Court also finds that the Complainant by her action of not turning up for work in circumstances where her application for leave had not been granted contributed to her own dismissal.

I had some unease on the complainants stated availability post dismissal as it took virtually 3 months for him to challenge the circumstances of dismissal via the letter of 5 February 2020 from IWU. I found him very extremely vague on this topic. I was also struck by the claim for payment of wages governing the periods 4-19 November 2019, which was not submitted to WRC.

I also found unusual that a Mechanic would not have a driving licence.

In all the circumstances, the circumstances of this case must be recognised as an unfair dismissal. I have found on the evidence before me that the dismissal was tainted by a complete lack of fair procedures or natural justice to make it manifestly unfair.  

However, I had some reservations surrounding the complainant’s evidence on mitigation and loss. I would have preferred to see a structured table of mitigation and loss to satisfy the provisions of section 7 of the Act.

I found that the complainant had no recall of applying for job seekers benefit. I asked him to remedy this frail recollection by producing his records of same. These were not forthcoming.

The Complainant did not advance any evidence of mitigation as required in Section 7 (2) (c) of the Act.

(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.]

I have also had regard for the Respondents role in section 7(2) (e)

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,

Notice to employees of procedure for, and grounds of, dismissal.

14.— (1) An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.

It would have assisted this case greatly, if the foundation documents of employment had been made available to the complainant from the commencement of employment, by that I mean

1 contract of employment

2 grievance and disciplinary procedure

3 real time pay slips

I have found that the Complainant was unfairly dismissed.

I have also identified the application of both Section 8(11) and 8(12) in this case and have initiated a notification to both Revenue and Minister for Social Welfare.

(11) Where the dismissal of an employee is an unfair dismissal and a term or condition of the contract of employment concerned contravened any provision of or made under the Income Tax Acts or the Social Welfare Acts, 1981 to 1993, the employee shall, notwithstanding the contravention, be entitled to redress under this Act, in respect of the dismissal.

(12) Where, in proceedings under this Act, it is shown that a term or condition of a contract of employment contravened any such provision as aforesaid, the adjudication officer or the Labour Court, as may be appropriate shall notify the Revenue Commissioners or the Minister for Social Welfare, as may be appropriate, of the matter.

I am not satisfied that the Respondent has complied with his obligation to make salary deductions in compliance with Income Tax Acts or Social Welfare Acts. I appreciate that I have just received a random selection of pay slips and P60s, but these countered the complainant evidence that he was a full-time worker and raised sufficient doubt to prompt reportage.

I wish to draw the party’s attention to this illustrative case Tony Hayden v Sean Quinn Properties ltd [1994] ELR 45

where parties to an employment relationship made an agreement contrary to tax returns and the contract was found to be unenforceable.

I am satisfied that in the instant case, the complainant did seek a contract of employment to remedy the frailties of his situation.

In that, the case is distinguished from the case of:

Tony Hayden v Sean Quinn Properties ltd [1994] ELR 45

• (1) The defendant was clearly in breach of contract in that the plaintiff's dismissal was wrongful.
• (2) The contract itself was however, an illegal one as it contained a term, with which the plaintiff concurred, which was designed to lessen the defendant's liability at the expense of the revenue. There is a strong legal obligation placed on all citizens to make true and faithful returns for tax purposes and if parties make an agreement which is designed to do the contrary, then such an agreement is contrary to public policy and unenforceable.

The Complainant was unfairly dismissed.

CA-00035756-002 Terms of Employment

I have considered the evidence adduced in this case.

My jurisdictions rests under:

Written statement of terms of employment.

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment,

I have established a contravention of Section 3 of the Act by the absence of any statement of particulars of the terms of employment.

The claim is well founded.

CA-00035756-003   Annual Leave

I have considered the complainants evidence adduced in respect of annual leave. I would have preferred to have seen the respondent records maintained under section 25 of the Act. However, I am satisfied that in the course of my clarifications directed to the complainant, he availed of 2 weeks summer holidays and time off at Christmas and he could not identify a particularised shortfall in his annual leave.

Section 19 of the Organisation of Working Time Act, 1997 outlines the law on annual leave.

Entitlement to annual leave.

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)

I have not established a contravention of Section 19 of the Act. I find the complaint is not well founded.

CA-00035756-001 Unfair Dismissal

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the complaint in accordance with section 7 of the Act.

I have found that the complainant was unfairly dismissed. I have expressed my dissatisfaction with the absence of a table on loss and mitigation. this was not remedied in evidence.

As the Complainant is now living and working in Poland, I find compensation is the most practical remedy open to me in the case.

I order the respondent to pay the complainant just and equitable compensation in respect of the unfair dismissal at €4,000, equivalent to 8 weeks’ pay and to take account of notice.

CA-00035756-002 Terms of Employment

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

Section 7 of the Terms of Employment (Information) Act, 1994, requires that I make a decision in relation to the complaint in accordance with Section 3 of that Act.

I have found the claim well founded. In accordance with section 7 of the Act, I order the respondent to pay the Complainant €1,000 in compensation in respect of the contravention.

CA-00035756-003   Annual Leave

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

Section 27 of the Organisation of Working Time act, 1997, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found the complaint to be not well founded.

Claims for unfair dismissal, terms of employment, annual leave. No Appearance by the Respondent.