Complainant

Respondent

Parties

Krzysztof  Bogun

Joseph Freer Transport Ltd

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-00039927-001

18/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00039927-002

18/09/2020

The Complainant worked with the Respondent as a Truck Driver from 14 September 2006 on a gross weekly wage of €635.49 until he was dismissed by letter dated 15 September 2020.  The Complainant has submitted a complaint under the Unfair Dismissals Act 1977 claiming unfair dismissal and a complaint under the Redundancy Payments Act 1967 claiming that he had not received a redundancy payment to which he was entitled.

Both parties attended the first adjudication hearing on 4 May 2022.  This hearing did not go ahead due to the unavailability of an interpreter who had been requested by the Complainant.  The Respondent did not attend the reconvened adjudication hearing on 22 February 2023.  There was no interpreter available for the hearing on 22 February 2023.   The Complainant confirmed that he was willing to proceed in the absence of an interpreter.  The Complainant’s daughter was available to provide support if needed.

The Complainant submits that he was out of work from 15 June 2020 until 27 July 2020 due to injury.

On 27 July 2020, the Complainant texted the Respondent to ask if he could take annual leave as he did not feel fully fit to return to work and had a family problem in Poland.  The Complainant did not receive a response from the Respondent so he emailed him again on 28 July 2020.  On 30 July 2020, the Complaint received an email from the Respondent asking him if he had submitted an annual leave application form and seeking evidence of his fitness to return to work after sick leave. The Respondent said that once he had this information, he would then consider if the Complainant was entitled to any annual leave.

On 31 July 2020, the Complainant sent the Respondent the completed annual leave form and a certificate from the Department of Social Protection showing the cessation of his illness benefit payment.  The Complainant indicated in his email that he would give the Respondent a letter from his GP when he returned to work. The Complainant also apologised for the lateness of his annual leave request and explained that it was due to his family situation.

On 5 August 2020, the Complainant received an email from the Respondent to say that he required a note from the Complainant’s GP to certify that he was fit to return to work.  The Respondent also requested a signature on the Complainant’s annual leave request form which the Complainant had completed digitally and so had not signed.  On 10 August 2020, the Complainant received an email from the Respondent to say that he was required to quarantine for two weeks on his return from Poland.

On 12 August 2020, the Complainant received an email from the Respondent informing him that he would be paid for annual leave from 3 August until 7 August 2020 as this was the amount of outstanding leave that was due to him.

On 17 August 2020, the Complainant  received an email from the Respondent informing him that he was being temporarily laid off due to the Respondent's financial position. The Responded advised the Complainant that it was most likely that the Respondent company was going to be closed down.  The Respondent suggested that all employees should look for work elsewhere.

On 11 September 2020, the Complainant met with the Respondent in person to talk about the temporary lay off and asked whether he would be returning to work. The Respondent advised the Complainant to look for work elsewhere because he did not have any for him.  The Complainant then asked the Respondent about his redundancy payment as he had been with the company for 14 years.  The Respondent replied that he did not have any money.

On 15 September 2020, the Complainant received an email from the Respondent informing him that his  contract of employment was being terminated. The Respondent explained that this was due to the Complainant’s "lack of contact with management prior to taking this holiday directly after being deemed fit to work, coupled with this unauthorised leave and additional weeks absence due to being unavailable due to COVID quarantine regulations" which the Respondent regard as "serious misconduct". The Respondent further said that the Complainant’s actions "resulted in the company being placed in an extremely strenuous position". 

The Complainant submits that he received no prior notification of the termination of his employment or of any misconduct.  The Complainant further submits that at no point in any of the emails from the Respondent was the seriousness of the situation explained nor was the Complainant instructed to return to work or asked why he was absent from work.

The Complainant contends that other employees of the Respondent company received an email informing them that they were being let go because the Respondent company had run into financial difficulty and was closing down.  The Complainant informed the hearing that the Respondent company had ceased operations.

The Complainant contends that due to his dismissal, any redundancy payment to which he was entitled was not paid.

As the complaints referred to the Workplace Relations Commission included a complaint under section 8 of the Unfair Dismissals Act 1977, the Respondent was requested to submit a written statement in response to the complaint. The Respondent provided a written statement to the WRC on 4 May 2022.

In his brief submission, the Respondent asserted that the Complainant was issued with a number of verbal warnings for taking leave without notice or with insufficient notice.  The Respondent further asserted that in February 2019, the Complainant was issued with a written notice informing him that he could not go on leave without completing a leave form one month in advance.

The Respondent submitted that, in 2020, the Complainant was on sick leave and that he went directly from sick leave to Poland without notifying the Respondent that he was fit for work.  The Respondent contended that the Complainant did not submit a leave request form. 

The Respondent contended that he found out from other employees that the Complainant was in Poland.  The Respondent further contended that the Complainant later contacted the office stating that he was in Poland and wanted to stay longer.

The Respondent submitted that the Complainant could not be relied upon.  As he represented 30% of the workforce, he was let go.

However, given that the Respondent failed to attend the second adjudication hearing to adduce evidence in response to the complaints, I was not in a position to verify or test the information contained in this statement, and accordingly, I do not attach much weight to the Respondent’s submission.

Legislation

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

 “(4) 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, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. “

The application of the law in relation to the dismissal of an employee is relatively straightforward.  The burden of proof to show that a dismissal was not unfair rests with the employer who is, after all, terminating a contract of employment. The Unfair Dismissals Act requires that the employer must be able to show that fair procedures were followed and that there existed substantial grounds justifying the decision to dismiss.

The Respondent did not attend the adjudication hearing on the 22 February 2023 and, therefore, did not adduce any evidence in response to the complainants.  Consequently, I find that the Respondent has not met the burden of proof to show that the dismissal of the Complainant was not unfair.  Accordingly, based on the Complainant’s uncontested evidence, I find that the Complainant was unfairly dismissed.

Redress 

Section of the Unfair Dismissals Act 1977 – 2015 stipulates that where a complaint succeeds, redress may be awarded up to a maximum of 104 weeks’ remuneration, based on the financial loss suffered following the termination of employment. 

“ (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: …

… (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances.”

In calculating the level of redress, I have taken into consideration the efforts of the Complainant to mitigate his losses.  In this regard, the Complainant submitted that he started in a new job on 12 October 2020, one month after he was dismissed by the Respondent, on a gross weekly wage which is slightly higher than the €635.49 weekly wage he received when he was employed by the Respondent.  I have also taken account of the Complainant’s submission that he did not receive the redundancy payment which he would have received if he had not been dismissed by the Respondent but instead had been made redundant. 

CA-00039927-001 – Complaint under the Unfair Dismissals Act 1977

I find that this complaint is well founded and I direct the Respondent to pay the Complainant redress of €20,000.

CA-00039927-002 – Complaint under the Redundancy Payments Act 1967

I find that this complaint has been disposed of following my findings and award of redress in CA-00039927-001 above.

Dismissal to avoid payment of redundancy entitlement