ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00033788

Parties:

	Complainant	Respondent
Parties	Mark Maunders	Overhead Doors Ireland Ltd
Representatives	Self Represented	Ms. J Hayes Director

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-00044652-001	15/06/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00044652-002	15/06/2021

Date of Adjudication Hearing: 14/9/2022

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 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.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and the required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of Witnesses was allowed but not availed of.

Background:

The Complainant was employed as a Manager from February 15th 2021 to May 24th 2021 when he was dismissed due to alleged conflict with other employees and being on probation. The Complainant had less than 12 months service and set out three grounds for his alleged unfair dismissal. The Complainant alleged he did not receive written terms of employment within two months of commencing employment in contravention of the Terms of Employment (Information) Act 1994.

Summary of Complainant’s Case:

The Complainants evidence was that he gave up a secure job after being introduced to the Respondent by a mutual business contact. He initially met the Owners, Mr. Hayes and then Mrs Hayes, before taking up the role. He advised that the owners told him they wished to step back from the business and they wanted him “to run the show for them”. He advised he recruited six new members of staff and all got probationary contracts. He advised he did not receive a written contract. He advised he let go two staff during their probation. He advised he asked the accounts staff member for a contract but never received one. He advised he was not on any probation period. He advised he was dismissed after three months. He received no documentation explaining his dismissal and had thought things were going well and had no conversation with the owners otherwise. He advised Mr. Hayes had not stepped back from the business. He advised he believed the relationship soured over three issues namely, he did not have a licence to drive a van in Ireland (even though he was not informed this as part of his duties), his ability to stay on late one evening to let a repair man out of the premises and that he had informed the Owner he would be taking two weeks paternity leave on the birth of their third child as per his legal right. He advised this paternity documentation was given to the Respondent and signed by both. He advised he had an English licence which did not allow him drive a van in Ireland and therefore he would not be insured and that he had been willing to come back to the office to leave the repair man out and that on hearing that another member of staff had stayed on to be present with the repair man the Owner got frustrated with him. He was told he was an “expensive luxury” and never had a review about performance. He advised he suffered financial hardship after being dismissed. He was told to leave on the day he was dismissed and paid until the following week.

Summary of Respondent’s Case:

In evidence the Respondent, Mrs Hayes, disputed the evidence of the Complainant. She advised there was a personality clash with other employees and advised one employee was “going to hit the Complainant” due to his style. This was hearsay and not evidenced by the employee concerned. She advised key employees threatened to leave because of the Complainants management style. She advised they had no choice but to remove the Complainant. She advised she was told the Complainant had to quit his prior job due to a dispute. She advised the Complainant was on probation.

Findings and Conclusions:

The Respondent gave evidence by phone as they had no computer connection with a video camera. The Complainant was informed he would be granted an adjournment if requested until such time as the Respondent could access a computer video link and the hearing would be rescheduled in the next week. The Complainant stated he had given up work for the Hearing and would find it difficult and costly to do so again and wished to proceed with the Respondent available by phone.

CA-00044652-001. Section 3.1 of the Terms of Employments (Information) Act states the following;

.	“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, that is to say—
	(a) the full names of the employer and the employee,
	(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),
	(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,
	(d) the title of the job or nature of the work for which the employee is employed,
	(e) the date of commencement of the employee's contract of employment,
	(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,
	(g) the rate or method of calculation of the employee's remuneration,
	(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,
	(i) any terms or conditions relating to hours of work (including overtime),
	(j) any terms or conditions relating to paid leave (other than paid sick leave),
	(k) any terms or conditions relating to—
	(i) incapacity for work due to sickness or injury and paid sick leave, and
	(ii) pensions and pension schemes,
	(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,
	(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.
	(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.”

Section 7.2 of the Act states” A recommendation of a Rights Commissioner under subsection (1) shall do one or more of the following;


		(a) declare that the complaint was or, as the case may be, was not well founded,
		(b) (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3 , 4 , 5 or 6 , or
		(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,
		(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,
		(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977 ,”

The Respondent accepted in evidence that they had not provided the Complainant with a written statement of his terms of employment in accordance with the Act requirements and therefore they are in breach of the Act.

CA-00044652-002 Unfair Dismissals complaint

Section 2 of the Act requires a Complainant to have 12 months service in order to pursue a complaint under this Act, except for certain circumstances as laid down in Section 6 of the Act.

Section 2 states ”Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,”

Section 6(1) states” 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”

Section 6.2 states “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

“the exercise or proposed exercise by the employee of the right under the Paternity Leave and Benefit Act 2016 to paternity leave or transferred paternity leave within the meaning of that Act,”

The Complainant put forward three grounds for his unfair dismissal (as specified above) and one of these grounds to his related his application for paternity leave. Due to clause 2.a it is not possible to consider the other two grounds for the Complainants dismissal as these are excluded because he had less than one years service. As one of the three grounds included the exercise of his paternity leave I decide that I have jurisdiction to decide on the complaint for unfair dismissal (under Section 6.2) even though the Complainant has less than one years service.

It was clear from the evidence that the Complainant, by virtue of not being provided with a written contract, rightfully and legally assumed he was a permanent employee from the start of his employment as there was no probation period specified in a contract of employment. The Complainants evidence was that he was dismissed because of the three issues combined. The Respondents evidence was he was dismissed because he was on probation and had disagreements with other staff. If those disagreements existed, and the evidence was only hearsay, then the Respondent had the obligation to inform the Complainant and give him an opportunity to deal with same. This was not provided. The Complainant also advised that after being dismissed he applied for jobs daily and was interviewed a number of times by Companies and even though he felt the interviews went well no offer of employment was forthcoming for six months after verbal references were received from the Respondent. He believed these references to be detrimental to his prospects for securing new employment. This again is hearsay evidence and cannot be relied upon.

It is difficult to measure what contribution the Complainants request for paternity leave made to his dismissal. However, he is entitled to the benefit of the doubt that it did since no letter of dismissal was provided by the Respondent stating the grounds for his dismissal. The Complainant identified his loss at approximately 9,600 Euros until he secured new employment. The Respondent did not deal with the paternity issue in their evidence. As the taking of paternity leave, a legal entitlement. was one of three issues identified in the Complainants grounds for dismissal it is reasonable to apportion 1/3rd of his loss as the contribution of the paternity issue to his dismissal, an amount of 3,200 Euros.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. I award the Complainant 2,560 Euros compensation for this breach of the Terms of Employment (Information) Act 1994.

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-00044652-002. I find the Complainant was unfairly dismissed due to his paternity leave application and award the Complainant 3,200 Euros compensation for his unfair dismissal.

Dated: 21st September 2022

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Unfair dismissal