Complainant

Respondent

Parties

Slawomir  Kaminski

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

Complaints Reference No.

Date of Receipt

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

CA-00035757-001

18/04/2020

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

CA-00035757-002

18/04/2020

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

CA-00035757-003

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 Complainant found new work in May 2021.

The Union also sought the intervention of the WRC Inspectorate.

The complainant was supported by a Polish Interpreter at hearing.

The Complainant case was conjoined with ADJ 28109 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 25 August 2014 to the date of his dismissal on 4 November 2019.

He earned €520.00 nett pay in cash for a 43-hour week and was not provided with a contract of employment.

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

The Union undertook to produce PRSI records covering 2018 / 2019 in addition to revenue records. I have not received these requested documents.

CA-00035757-001, Claim for Unfair dismissal

The Union on behalf of the complainant submitted that the Complainant had worked alongside the complainant specified in ADJ 28109 as a Mechanic. The Complainant had felt ill at work during 4 November 2019, and he went home with the Respondents permission.  He returned at 2pm but deteriorated.

He was not aware of any dismissal until he found a letter in his letterbox dated 4 November addressed to the complainant in ADJ 28109. The Complainant contended that he had been summarily dismissed. the union submitted that the complainant had lost his entitlement to statutory pay in lieu of notice and redundancy payment entitlement. He maintained that his colleague had told him that he was fired.

The Union submitted that the complainant had not habitually received pay slips, but for the purposes of the hearing presented pay slips from 2019 and a P60 for years ending, 2017 and 2018 signalling 52 and 48 weeks of insurable employment and total pay of €8, 361.81 and €7,708.94.

The Union also exhibited a Particulars of Employee leaving form dated 19 November 2019, where total pay was recorded as €7, 040.00. The cessation date was listed as 4 November 2019.

Evidence of the complainant

The Complainant recalled 4 November 2019 and his not feeling well on that day. He worked up to the 10 am break and left work, returning at 2 pm. He worked up to 6 pm when the Respondent approached him asking whether he wanted to go to hospital. The complainant said no and told him that he was waiting for the symptoms to pass. His colleague in ADJ 28109 was called to collect him and another friend brought him to hospital.

He told the hearing that he had not been provided with a discharge summary but had spent overnight in hospital. He said that he felt much better the next day. He had difficulties understanding his condition in hospital, as his English was poor. He explained that he experienced a discolouration of his fingers.

He recalled visiting the workplace the next day. At first, he said his objective was to collect documents and this changed to tools. He remembered informing the respondent “that there would be a court “but he clarified that he had not applied to return to work.

The complainant later added that found it hard to recollect 5 November on his visit to the garage, but he submitted that he was there for about 5 mins.

He could not recall receiving any letter from the Respondent.

The Complainant confirmed that there was no specific roster with his name on it, but he had been due to work all that week.

On further clarification, the complainant recalled that his working conditions were terrible. He was aggrieved at how he was treated, as he stated that he had worked hard

The Complainant stated that he was claiming unfair dismissal, as no reasons were given for his dismissal. He said he looked for work and lived off savings. His access to job seekers benefit was delayed and not backdated. He found new work in May 2021 on a three-day week

He clarified that he had not heard the Respondent dismiss him, but he accepted confirmation of this from his colleague

The Union re-affirmed that the complainant had been unfairly dismissed.

CA-00035757-002 Statement of Terms of Employment

The Complainant submitted that he had not been provided with a statement of his terms of employment.

CA -00035757-003 Annual Leave

The complainant outlined in his complaint form that he had not received annual leave during his employment. He later clarified in evidence that he booked annual leave with his co-worker, and he recalled availing of annual leave at Christmas time.

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

The Respondent has not filed a defence in the claims.

CA-00035757-001 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-00035757 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-00035757 -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-00035757-001, Claim for 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. An email address was secured This prompted notification of hearing dated 7 April 2022 to issue.

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 at 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 letter. I accept the Union submission that they did not receive a response . However, I was struck by the delay in advancing these arguments.

My jurisdiction in this case is found in both Section 1 and Section 6 of the Unfair Dismissals Act, 1977.

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose.

In order to apply section 6 to the facts of the case, I must be satisfied that a dismissal occurred.

I must say at the outset the proforma leaving form is not determinative of a dismissal. On the evidence, I found the complainants recall of the events of November 4 and 5 to be so vague as to be difficult to follow.

I cannot find it feasible that an employee of the complainant’s tenure would accept notification of dismissal from a colleague without challenging this decision in the immediate aftermath with his employer. I note that the complainant told the hearing that he did not hear his employer dismiss him. This puts him in a direct collision with the definition of dismissal provided for in section 1 of the Act.

I appreciate that the employment was void of policies that might have helped him navigate a way through conflict, however, I just did not find the complainant credible on the topic of his reported dismissal.

I was struck by the complete absence of documents linked to the purported dismissal. I was also struck by the two different reasons advanced for his reason to return to the workplace on November 5, 2019, neither of which was accompanied by any direct conversation with the employer.

I have reflected on the complainant’s evidence, and I cannot find evidence that a dismissal of any kind occurred on 4 November 2019.

It is not clear to me why the complainant was so sure of his dismissal.

I find that the complainant was not dismissed from his employment, nor is there any evidence of resignation.

As I have not established the prerequisite of dismissal in this case, I cannot proceed to analyse the circumstances for fairness or unfairness.

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.

I have found that the Complainant was not dismissed. Therefore, he was not unfairly dismissed.

As in ADJ 28109, I found that I had a concern regarding tax and prsi  paid at this employment . I have initiated a report in accordance with Section 8(12) of the Act.

(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.

CA-00035757-002 Statement of 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 -00035757-003 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 conjoined holidays with his colleague 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-00035757-001, Claim for 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 the relevant redress provisions under Schedule 6 of that Act.

I have found that the Complainant was not dismissed. Therefore, he was not unfairly dismissed.

CA-00035757-002 Statement of Terms of Employment

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.

Section 7 of the Terms of Employment (Information)Act, 1994 requires me to make a decision 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 -00035757-003 Annual Leave

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.

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in accordance with Section 19 of that Act.

I have found that the claim is not well founded.

Unfair Dismissal , Terms of Employment , Annual Leave