Representatives

  Self Represented

 Self Represented

Anonymised Parties

 A Baker

A Baking Company

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-00040233-001

04/10/2020

The Complainant submitted a claim for Unfair Dismissal. The Complainant also included claims for loss of wages and annual holidays/Public holidays and incorrect notice applied on his termination, all as part of his complaint.  The Complainant was employed as a Baker from October 9th 2018 to July 1st 2020. He submitted his complaint to the WRC on October 4th 2020.

The Complainant stated he was unfairly dismissed. He stated that he had never told the Respondent that he no longer received government assistance and he was just asking to resume his job as a baker.

He stated he was fired without telling him, that Intreo switched him from Covid payment to Jobseeker’s, without his understanding the reason. He stated that it was the officer in Intreo who told him on October 1, 2020 that he was being wrongfully dismissed. 

The Complainant also submitted the following summary of holidays and bank holidays due to him:

 2018: Period from October to December

 Gross reference pay: 593.45 euros

Calculation of 8% due to change of employer and incomplete year

12 weeks and 1 Bank Holiday

12 x 593.45 = 7121.40 euros

7121.40 x 8% = 569.71 euros

Bank Holiday = 118.64 euros

Total for 2018= 688.35

2019: Full year

Gross pay: 593.20 euros

4 weeks plus Bank holidays 9 days

2 weeks of vacation from 04/03/2019 to 17/03/2019

2 weeks left + 9 Bank holidays

593.20x 2 = 1186.40 euro

9 BH x 118.64 = 1067.76 euros

Total for 2019: 2254.16 euros

2020: Period from January to March

Gross Pay: €593.20

Calculation of 8% because incomplete year

12 weeks and 2 BH

12 x 593.20 = 7118.40 euros

7118.40 x 8% = 569.47 euros

2 BH x 118.64 euros = 237.28 euros

Total for 2020: 806.75 Euros

A  - 2018+2019+2020 = 3749.26 Euros Holidays + Bank holidays

B  - Notice as indicated on the contract signed on 08/08/2019, 4 weeks’ notice

4 x 593.20 = 2372.80

 Totals A + B = 3749.26+2372.80 = 6122.06 Euros

Given all these facts, bad faith, non-compliance with the law by this company and the fact that he declined compensation for damages for 3000 euros, he requested the sum of 6122.06 in compensation and stated that that all of his requests seem to him to be justified in relation to the laws and the contract drawn up by the Respondent.

The Complainant requested that I include this loss as compensation in my Decision.

•         

The Respondent denied the had unfairly dismissed the Complainant.

The Respondent submitted the following payments as due on termination of the Complainants employment.

HOLIDAYS

From October 2018 (start date) to the end of 2018 the Complainant worked for 12 weeks for a gross total of €7122

Total Holidays owed 8% X €7122 = €569.76

From January 2019 to end of April 2019 the Complainant worked for 19 weeks for a gross total of €10070.69

Total Holidays owed 8% X 10070.69 = €805.66

From end of April 2019 to the end of employment they submitted an Excel file from their Accountant, showing the breakdown of the taken/owed holidays. It showed the company owed no holidays (- 5.12 hours).

•        Total holidays owed - €74

           Bank holidays on the period: 12 days (3 in 2018 + 9 in 2019)             Total owed: 12X€119 = €1428

TOTAL Due; Holidays + bank holidays €2730

With regard to the Notice issue the Contract of employment and Handbook were supplied.

The Respondent stated that considering the situation, and the fact the company was let down with a poor communication from the Complainant until the time he couldn't get money from the Government anymore, they submitted a notice between 1 week and 2 weeks would be fair.

The Respondent stated they will pay what was owed straight away and asked the Adjudicator to include this in my Decision.

Two Hearings were held for the Parties to submit their positions. At the first Hearing, neither Party had full supporting information to support their positions. The Parties briefly aired their issues including the circumstances surrounding the ending of the Complainants employment/Dismissal and focused more on other issues associated with what was due to be paid in holidays, public holidays due and notice due. These issues seemed to be the most contentious issues between the parties.  The Parties, who seemed to have a good relationship, requested time out from that Hearing, after making their initial submissions on the issues, to have a private discussion to try resolve matters. This was granted. On reconvening, the Parties informed me jointly, that they had agreed that the only issue to remain resolved between them in the complaint was for holidays/public holidays and notice pay and they stated that the information needed to be verified by the Company Accountant. The Parties were given six weeks to agree the differences between them on the information or the Complainant could request a further Hearing if the matter was not resolved. The Parties were informed that the only Decision I could give them was one on the Unfair Dismissal compliant before me. The Complainant wrote to the WRC subsequently seeking a further Hearing as they had not reached an agreement. At the second Hearing it was agreed the Respondent would write to the Complainant and document what they felt was due to him and the Complainant would then reply with his assessment of what was due. Both parties would submit the details to me for review and for consideration in my Decision.  Both Parties submitted their respective positions as outlined above. The Parties requested that I make a Decision on all outstanding issues to do with the termination of employment.  I advised the Parties that the only Decision I could make was one on whether the Dismissal was unfair or not but would consider all inputs when arriving at compensation due, if any.

It is not the Adjudicators role to make a Decision of the various claims other than the Unfair Dismissal compliant. Therefore, at the request of both Parties and to assist the Parties, I will set out a logic I would use if I had to decide on the Notice Pay, Public Holiday and Notice entitlement.

However, I again have to stress to the Parties the only issue I am Deciding upon is the Unfair Dismissal complaint and any award for compensation will be under that complaint and is not under any other Act.

The Complainant submitted his complaint to the WRC on October 4th 2020. Therefore, under the Organisation of Working Time Act and the Payment of Wages Act the period which the Complainant could claim under those Acts is for 6 months prior to the submission of his complaint. That period is from April 4th 2020 to, effectively, the date of termination of employment, July 1st 2020. While I appreciate the complaints were not taken under those Acts, logic means the rules regarding making complaints under those Acts would apply to the issues of annual leave and public holidays.

In the Respondent Submission they stated the Complainant was due 2730 Euros for all outstanding Holidays and Public Holidays from 2018 to July 1st 2021. However, if the Organisation of Working Time Act and the Payment of Wages Act were applied as per the legislation and the only cognisable  period is from April 4th 2020 to July 1st 2020 then the Complainant would be due very little, if any payment due for this period under those Acts, if the complaints were under those Acts. So, in effect the offer from the Respondent is far more than that required under those Acts.

With regard to the Notice Pay no such time limit is applicable in the circumstances of this case. The Complainants contract of employment states the following in Clause 19 (ii) “The Employees entitlement to notice from the Employer shall be the greater of statutory minimum notice (subject to a maximum of eight weeks) and 4 weeks.”  The Complainant would only be entitled under the Minimum Notice and Terms of Employment Act 1973 (if applied) to 1 weeks notice pay which equals 593.20 Euros but his contract gives him 4 weeks notice pay which is equal to 2372.80 Euros. It does not matter under that legislation that the contract entitles the Complainant to a minimum of 4 weeks notice. The Act does not allow for this to be taken into account and an Adjudicator could only apply what was due under the Act for the Complainants service and that notice pay due is one week. The claim for 4 weeks would be a matter for contract law and not employment law and any claim for four weeks notice pay in his contract would have to be pursued by him under breach of contract in a civil court.

The Respondent has calculated what they believe is due, outside of legislative considerations, as 3,916.40 Euros. If the complaints had been made under the appropriate Acts the Complainant would be entitled to approximately a total of 592.20 Euros due to the time limit of six months being applied, or if the contract provision regarding notice is included as four weeks (which is reasonable and logical), then he would be entitled to a maximum of 2372.80 Euros. The Respondent has stated they are willing to pay what is fairly due to the Complainant. They estimated this as 3,916.40 as actually owing to the Complainant.

I am required by law to make a Decision on the Unfair Dismissal complaint presented to the WRC and on only that issue.  So, I find the Complainant was unfairly dismissed as the Respondent did not offer any substantial grounds justifying the dismissal and award the Complainant 3,916.40 Euros compensation.

It is important to point out to the Parties that they both have the right of Appeal on this Unfair Dismissal Decision within 42 days of the date of this Decision.  However, the only Decision that can be appealed is whether the Complainant was fairly or unfairly dismissed, and the method used for arriving at the above compensation was done solely at the Parties request and purely to assist the Parties try to resolve their dispute concerning the issues in dispute.  The individual elements and logic of how the Compensation was arrived cannot be the subject of appeal.

Unfair Dismissal