ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028998
Parties:
| Complainant | Respondent |
Parties | Arkadiusz Mikolajczak | Sitas Developments Ltd |
Representatives |
| Jean Winters Construction Industry Federation |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00038475-001 | 01/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00038475-003 | 01/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00038475-005 | 01/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00038476-001 | 01/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00038476-003 | 01/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00038476-005 | 01/07/2020 |
Date of Adjudication Hearing: 24/06/2022
Workplace Relations Commission Adjudication Officer: Conor Stokes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings. The complainant and one witness for the respondent gave evidence under affirmation. The complainant confirmed that the three complaints under CA-00038476 were duplicates of those under CA-00038475 and it was confirmed that they would be dealt with under the corresponding compliant numbers related to CA-00038475 only. During the hearing the complainant withdrew complaint CA-00038475-005 (and accordingly, CA-00038476-005). Arising from this, only two complaints proceeded for hearing and decision. Additional information regarding the complainant’s rate of pay was received from the respondent on 6 July 2022. The respondent confirmed that his hourly rate of pay was €18.47 for a 39-hour week |
Summary of Complainant’s Case:
CA-00038574-001 The complainant submitted that he did not receive his terms and conditions of work in writing. CA-00038475-003 The complainant submitted that he never received any notice of the termination of his employment. |
Summary of Respondent’s Case:
Preliminary issue – time limits The respondent submitted that it processed the termination of the complainant’s employment on 11 October 2019 and that the complainant only took his complaints on 1 July 2020. The respondent submitted that this rendered the complaints out of time. CA-00038574-001 The respondent accepted that it had not provided the complainant with his terms and conditions in writing. CA-00038475-003 The respondent submitted that the complainant terminated his own employment by not returning to work on 21 August 2019 following a period of illness. The respondent submitted that it informed the Revenue Commissioners that the complainant was no longer on the payroll with effect from 11 October 2019. |
Findings and Conclusions:
Preliminary Issue – Time limits Section 41(6) and (8) of the Workplace Relations Act, 2015 outline the time limits for referring a complaint to the Workplace Relations Commission. They state as follows: (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. The respondent submitted that it informed the Revenue Commissioners that the complainant was no longer on the payroll with effect from 11 October 2019. However, it also confirmed that it did not send any notification in writing to the complainant, or try to do so, indicating that his employment was terminated or deemed terminated. Although the six-month period for taking a complaint had elapsed, I am satisfied that the lack of any notification sent in writing to the complainant regarding the end of the employment relationship constitutes reasonable cause such as to extend the timeframe for referral of a complaint to the Director general. Accordingly, I consider that the complaints were made within the timeframe envisaged by the Act. CA-00038574-001 The respondent accepted that it had not provided the complainant with his terms and conditions in writing. Accordingly, I find that this complaint was well founded. CA-00038475-003 The complainant accepted that he did not make contact with the respondent following the expiration of the period covered by the final medical certificate he submitted. The respondent tried on a number of occasions to make contact with the complainant by phone at the number he provided to them. They were unable to ascertain the situation and following a period of about six weeks proceed to remove the complainant from the payroll. The respondent submitted that by not making contact with them, the complainant was effectively resigning. The complainant gave no evidence to the contrary and did not challenge the fact that the respondent tried to contact him by phone on a number of occasions. Having regard to these facts, I am satisfied that assumption of resignation was reasonable on the part of the respondent. Accordingly, the complainant was not entitled to a period of notice. I am satisfied that the Act was not contravened. |
Decision:
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.
CA-00038574-001 As I have found that the compliant was well founded, and I note that provision of written terms and conditions of employment is a fundamental duty placed upon an employer by the legislation, my decision is that employer should pay the complainant an amount equivalent to four weeks remuneration, which I consider just and equitable in all the circumstances. Accordingly, my decision is to award the complainant the amount of €2,881.32 (equivalent to 4 weeks at €720.33) CA-00038475-003 Having regard to all the written and oral evidence in relation to this complaint, my decision is that the Minimum Notice and Terms of Employment Act, 1973, was not contravened. |
Dated: 14/07/2022
Workplace Relations Commission Adjudication Officer: Conor Stokes
Key Words:
Terms of Employment – no written terms – well founded – award made – Minimum notice – Act not contravened |