Complainant

Respondent

Parties

Gary  Keating

Accessible Community Transport Southside (t/a ACTS)

Representatives

Dublin South Citizen Information Service

No attendance

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-00047257-001

19/11/2021

This claim of unfair dismissal was received on 19 November 2021.

A hearing of the claim initially scheduled for 27 July 2022 was postponed on the Respondent’s application. 

At the rescheduled hearing on 11 October 2022, there was no appearance by or on behalf of the Respondent.  The Complainant was in attendance with his representative.

The Complainant’s representative provided me with copy of a notice of voluntary winding up of the Respondent company.  He advised that the company’s status on the Companies Registration Office website was normal and that there had been no notice published in Iris Oifigiúil.

I established that the company remains on the register of the Companies Registration Office and that it was properly notified of the rescheduled hearing arrangements for this case.  I proceeded with the hearing after allowing some time for any delay on the part of the Respondent.  The Complainant made an affirmation prior to giving evidence.

The Complainant commenced employment with the Respondent in April 2019.  He worked 39 hours per week over three days, Friday, Saturday and Monday, in respect of which he received €390.00 net pay. 

The Complainant was laid off by the Respondent in March 2020 due to Covid restrictions.  Thereafter he worked for a period in December 2020 and in March 2021.

The Complainant’s employment was terminated by the Respondent in a letter of termination dated 29 June 2021.  The Complainant was not given any prior warning of dismissal and was not invited to attend any disciplinary meetings.

The Complainant exercised a right of appeal to the Respondent’s chairperson on 2 July 2021.

The decision to dismiss was upheld and confirmed to the Complainant in a letter dated 16 July 2021.

It was submitted on behalf of the Complainant that there were no substantial grounds justifying the Complainant’s dismissal and that fair procedures were not adhered to prior to the dismissal of the Complainant from employment on 29 June 2021.  It was pointed out that the decision to dismiss the Complainant was taken when the Complainant was away from his place of work on lay off.  The Complainant sought compensation in respect of financial loss arising from his dismissal referable to the period 14 July 2021 to 11 October 2021.

Evidence of the Complainant

The Complainant worked on a Tús scheme with the Respondent prior to being offered a contract of employment in April 2019.   He signed a contract on commencement and worked as a driver on the same 3 days each week, namely Monday, Friday and Saturday.   He took up a second job with another company in late 2019, of which the Respondent was aware.  He worked on Tuesday, Wednesday and Thursday weekly with the other company.

The Complainant was laid off by the Respondent in March 2020 as a result of the Covid-19 pandemic and national lockdown measures.

The Complainant returned to work with the Respondent for one week in December 2020 and for a number of days in March 2021. 

He outlined how there was no driving service provided by the Respondent from December 2020 to March 2021 because of Covid-19. 

The Complainant was offered a new contract by the Respondent in January 2021 which he did not agreed to or sign.

Between April and June 2021, the Respondent contacted the Complainant about working on specific days.  The Complainant was unavailable on the days in question and he said the Respondent accepted the reasons for the Complainant’s unavailability.  The contact from the Respondent was made by way of telephone call and occurred at short notice for the day he was requested to work.

The Complainant received a letter of termination dated 29 June 2021.  He had not been the subject of any issue or complaints during his employment and had not received any warning prior to receiving the termination letter.  He was not invited to any meeting and did not receive any communication from his employer before the termination of his employment to the effect that the Respondent wanted to discuss the Complainant’s employment.  The Complainant submitted grounds of appeal dated 2 July 2021 and received the Respondent’s response on his appeal by way of correspondence dated 16 July 2021. 

The Complainant outlined how he kept his part-time job after he was dismissed and obtained full-time employment with that company in October 2021.

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

There was no written statement, documentation or submission in respect of this claim provided by or on behalf of the Respondent to the WRC or exchanged with the Complainant.

In making a decision in relation to this claim for unfair dismissal, I have had regard to the details submitted on the complaint form, the written submission on behalf of the Complainant dated 25 July 2022 and appendices to same, the oral submissions on behalf of the Complainant and the evidence adduced at hearing.

The Respondent, on whom the burden of proof rests in the case, did not attend the hearing and did not submit a defence in the case. 

I was informed at the outset of the hearing by the Complainant’s representative that it had been made aware of a notice of voluntary winding-up of the Respondent company.  It advised that the company’s status with the Companies Registration Office was normal and that no notice had been published in Iris Oifigiuil.

The Complainant’s representative confirmed that it had communicated with the Respondent in July 2022 concerning the postponement of the previously scheduled hearing date.

The hearing arrangements for 11 October 2022 issued from the Workplace Relations Commission to the Respondent at its registered address by way of letter dated 9 August 2022.  I established that the company remains on the register of the Companies Registration Office.  Accordingly, I am satisfied that the Respondent was on notice of the within claim to the Workplace Relations Commission, did not provide a written statement in relation to the claim, was properly notified of the hearing arrangements on 11 October 2022 and that it is appropriate for me to adjudicate on the claim before me. 

The Complainant’s submission included the letter of termination dated 29 June 2021 from the Respondent to the Complainant.  Having regard to the content of that letter, I am satisfied that a dismissal occurred within the meaning of s.1 of the Unfair Dismissals Act, 1977. 

The letter of termination is entitled ‘Termination Notice’ and outlines that the Complainant’s employment with the Respondent will terminate with immediate effect and that the Complainant would be paid two weeks in lieu of notice.   The letter also refers to the reasons for termination as being the Complainant’s failure to make himself available for shifts since April 2021 when requested to do so, the Complainant’s reasons for absence as being unacceptable and it being a condition of the Complainant’s employment that he work exclusively for the Respondent in circumstances where the Complainant’ position is funded by a third party.

The Complainant’s evidence at the hearing, as set out above, conflicts with the detail in the reasons for termination outlined in the Respondent’s letter of termination dated 29 June 2021.

The Complainant’s grounds of appeal dated 2 July 2021 and a letter dated 16 July from the Respondent’s chairperson informing the Complainant of the outcome of his appeal were included with the Complainant’s submission.

I note that the Complainant’s grounds of appeal were that he was available to work on his normal days and hours; he works Fridays, Saturdays and Mondays under his contract and that there was never an issue previously about him having a second job.

It appears from the letter informing the Complainant of the outcome of his appeal that the appeal was conducted by the Respondent’s chairperson by way of a review.  I note again the conflict between the detail in the letter pertaining to the chairperson’s review, including communications it outlines between the Respondent’s manager and the Complainant between April and June 2021, and the Complainant’s evidence at the hearing.

On review of the evidence and documentation before me, it is apparent that there were issues relating to the terms and conditions of the Complainant’s employment with the Respondent.  The Complainant did not have a copy of the contract he signed on commencement of employment in April 2019.  The Complainant’s representative provided evidence of requests made of the Respondent to provide copy of the Complainant’s employment records, including payslips and a copy of his contract of employment and employee handbook.  I was told that no response had been received from the Respondent to those requests.

Section 6(1) of the Unfair Dismissals Act 1977 deems a dismissal of an employee to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.  Section 6(6) requires an employer to show that the dismissal resulted wholly or mainly from one or more of the grounds set out in s.6(4) or that there were other substantial grounds justifying the dismissal.  Giving due weight to the uncontested, oral evidence of the Complainant, I must find that the Respondent has not discharged the burden upon it of proving that there were grounds justifying the dismissal of the Complainant.

I have had regard to the content of the letter dated 29 June 2021 terminating the Complainant’s employment with immediate effect and the Complainant’s evidence that there was no warning prior to this letter that his employment was at risk.  The Complainant did not have information about the Respondent’s procedures for dealing with any issues of concern or discipline.  Based on the evidence before me, I have not been able to identify anything akin to a procedure having been applied to the Complainant to address the matters outlined in the Respondent’s termination and appeal outcome letters.  The Complainant’s evidence as to the Respondent’s conduct in not putting any issues of concern to the Complainant and the fact of the Complainant’s summary dismissal from employment, renders, in my view, the conduct of the Respondent unreasonable.

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.

Based on the evidence before me and as outlined above, I find that the Complainant was unfairly dismissed.

The Complainant said that he continued with his part-time work with a third party after his dismissal by the Respondent.  This part-time work became full-time work from 11 October 2021.  Pay slips submitted in respect of this employment show full-time earnings in October 2021 to be €396.00 net per week.

The Complainant has found alternative full-time employment and he confirmed at the hearing that he was seeking compensation for unfair dismissal.  Having regard to the foregoing and the copy notice provided to me in respect of the Respondent company, I do not consider re-engagement or re-instatement to be appropriate remedies.

I am of the view that compensation for the actual loss attributable to the dismissal in respect of the period from 14th July 2021 to 11th October 2021 is just and equitable in the circumstances of this case. 

Therefore, having regard to the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977, I direct the Respondent to pay the Complainant €4,836.00, which is based on the Complainant’s net weekly remuneration in the latest week before the date of dismissal in which the Complainant worked normal hours.

Unfair dismissal – No attendance by or on behalf of the Respondent