ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033201
Parties:
| Complainant | Respondent |
Parties | Mark O'Driscoll | Airconmech Limited |
| Complainant | Respondent |
Representatives | Self- represented. | IBEC. |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00043913-001 | 06/05/2021 |
Date of Adjudication Hearing: 04/04/2022
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 – 2014,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. On this date, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties proceeded in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.
I gave the parties an opportunity to be heard, to present evidence relevant to the complaints and to cross examine witnesses. The complainant gave evidence under affirmation.
IBEC represented the respondent. The respondent was also represented by personnel relevant to the complaint.
The complainant was accompanied by his wife.
Background:
The complainant submitted a complaint that the respondent refused to pay him his statutory redundancy payments contrary to section 7 of the Redundancy Payments Acts. His complaint form also stated that he had been unfairly selected for redundancy. He commenced employment with the respondent on 23 August 2015. He states his last day in work was 27 March 2020. His gross fortnightly salary was €800 He submitted his complaint to the WRC on 6 May 2021. |
Summary of Complainant’s Case:
The complainant commenced work as a sheet metal worker with the respondent who specialises in the installation and maintenance of heating, ventilation and air conditioning systems on 23 August 2015. The complainant gave evidence under affirmation. He stated to the hearing that he wished to formally withdraw the complaint listed for today’ s hearing of a breach of the Redundancy Payments Acts 1967-2016. He wishes to substitute today’s listed complaint with a complaint of constructive dismissal under the Unfair Dismissals Acts 1977-2015, based on the facts contained in his complaint form and email of 1 April 2022. The complainant states his dismissal occurred when he left the employment in the middle of March 2021. He presumed that he was gone from the company on that date. He commenced another job in August 2021. Concerning the objection of the respondent to hearing a complaint under the Unfair Dismissals Acts, the complainant states that he wishes to proceed and that the facts of his case would remain the same in a reconvened hearing should a decision issue favouring a further hearing of his complaint under the Unfair Dismissals Acts 1977-2015. |
Summary of Respondent’s Case:
Preliminary point. The respondent is not consenting to the complainant’s request to have his complaint heard under the Unfair Dismissals Acts 1977-2015. The respondent is seeking an adjournment until a decision on the admissibility of hearing this complaint under the Unfair Dismissals Acts 1977-2015 issues. It is a different statute with different outcomes. Without prejudice to the respondent’s position, the dismissal is contested. The respondent notes that the complainant has formally withdrawn the complaint under the Redundancy Payment Acts 1967. |
Findings and Conclusions:
CA-00043913-001. Complaint under Section 39 of the Redundancy Payments Act, 1967. The complainant withdrew this complaint. Request for an adjournment to consider preliminary point. I agreed to the respondent’s request for an adjournment to consider the complainant’s request to have his complaint reconstructed as a complaint of constructive dismissal to be heard under the Unfair Dismissals Acts 1977-15. I advised the complainant on the necessity for him to acquire advice as to how he might wish to proceed. This advice also issued to him from the WRC. The complainant did submit an email on Friday, the 31 March 2022 at 4.25, before the hearing listed for the following Monday, stating that his complaint was really one of constructive dismissal. Nothing to substantiate this complaint either by way of confirming that he had actually resigned, the date of his resignation, or that he had invoked procedures prior to an unconfirmed resignation was set out in either the complaint form submitted to the WRC on the 6 May 2021 or in the email of 1 April 2022. Fair procedures dictate that the respondent would be on notice of the complaint and that neither party would suffer a disadvantage in the conduct of a hearing or in the prosecution of a complaint before the WRC. Based on the evidence presented to me, I do not find that I have jurisdiction to reclassify the complainant’s complaint, submitted under the Redundancy Payments Act, 1967, on the 6 May 2021, as a complaint under the Unfair Dismissals Acts 1977-2015. I do not have jurisdiction to hear this complaint of constructive dismissal. |
Decision:
[Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00043913-001. Complaint under Section 39 of the Redundancy Payments Act, 1967. The complainant withdrew this complaint. A complaint of constructive dismissal submitted to the hearing on the 4/4/2022. I find that I do not have jurisdiction to hear this complaint of constructive dismissal. |
Dated: 12th October 2022
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Misconceived complaint. |