Complainant

Respondent

Parties

Sylwester  Wojcik

Boxer Logistics Limited (In Liquidation)

Representatives

Krystian Boino, Hoban Boino Solicitors

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-00051298-001

24/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00051298-002

24/06/2022

The Complainant commenced his employment with the Respondent on 1 September 2020.  On 2 January 2022, while on annual leave, he was notified that his employment with the Respondent had been terminated.  The Complainant submits that he was unfairly dismissed and he was not paid notice.

The Respondent company is in liquidation.  On 13 February 2023, the Liquidator wrote to the WRC to say that it would not attending the hearing and that it did not dispute the claim.

The Complainant availed of paid annual leave for a period from 20 December 2021 to 4 January 2022.  On 2 January 2022 he received a call around 9pm advising him that his employment was being terminated.  The Complainant never returned to work following his annual leave.  He was issued with a termination letter confirming the termination of employment with effect from 2 January 2022. 

The Complainant submits that the termination letter issued by the Respondent seemed to suggest that he was dismissed by reason of redundancy as it contained the following sentence:

“I am writing to inform you that on account of difficult trading conditions, we no longer require your services at our business premises.”

The Complainant submits that he was selected for dismissal in contravention of the agreed redundancy procedure within the Respondent organisation and that there were no special reasons justifying a departure from that procedure.  Accordingly, the Complainant submits that he was unfairly dismissed contrary to the provisions of the Unfair Dismissals Act 1977.

The Complainant submits that an employer, when contemplating a dismissal on grounds of redundancy, must:

·       first ensure that the relevant circumstances fall within definition of redundancy;

·       once the above is fulfilled, the employer must ensure that the employee is selected for redundancy in fair, objective and transparent manner; and

·       the employer must conduct themselves reasonably.

The Complainant submits that the Respondent did not act reasonably as no evidence was presented to the Complainant in respect of the alleged redundancy situation and no fair and reasonable approach to creating an appropriate pool of employees was adopted.  Furthermore, the Complainant submits:

·       No consultation took place. The Complainant was dismissed by a phone call in the evening while on annual leave;

·       The Complainant was never told his job was at risk;

·       The Complainant was not invited to propose any alternative to redundancy; and

·       The Respondent never considered any alternatives to redundancy.

Evidence of Loss

The Complainant tried to secure new employment and finally secured part-time employment on 30 May 2022 on €208 per week.  The Complainant submits that his financial loss until the end of 2022 can be calculated as follows:

·       He earned €630 per week while employed by the Respondent;

·       He experienced a period of unemployment of 23 weeks from 3 January 2022 to 30 May 2022 which resulted in a loss of €14,490 (€630 x 23);

·       He worked on a part time basis for 29 weeks from 30 May 2022 to 31 December 2022 resulting in a loss of €12,238 (29 x(€630 - €208)).

On 13 February 2023, the Liquidator wrote to the WRC to say that it would not attending the hearing and that it did not dispute the claim.

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 in this case is in liquidation.   On 13 February 2023, the Liquidator wrote to the WRC to say that it would not attending the hearing and that it did not dispute the claim.  I find, therefore, 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 submission, 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 compensation I took into consideration the efforts of the Complainant to mitigate his losses.   The Complainant said that his ability to apply for employment was limited by his lack of transport.  The Complainant submitted evidence that he had applied for 46 jobs since his dismissal from the Respondent organisation, all with the same agency.  According to the evidence he submitted, the Complainant made the following applications – 1 in January 0222; 7 in February 2022; 6 in March 2022; 3 in April 2022; 16 in May 2022; 11 in June 2022; none in July 2022; and 2 in August 2022.  I find that his efforts do not meet the standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

In conclusion and having regard to all of the circumstances of the complaint, I find that the dismissal of the Complainant was substantively and procedurally unfair. It is my considered opinion that the Respondent showed no regard to the principles of fair procedures and natural justice.

I find, however, that the Complainant has not made sufficient effort to mitigate his loss. Taking all factors into account, I direct the Respondent to pay the Complainant redress of €20,000.

The Complainant submits that he was in continuous employment with the Respondent for less than two years and is, therefore, entitled to one week’s notice.  The Complainant submits that he was dismissed without any period of notice on 2 January 2022.   

The Complainant was on annual leave from 20 December 2021 and he received a payment of €520 net for the first week of his annual leave on 30 December 2021.  The Complainant submitted a copy of his payslip for the week ending 2 January 2022, on which the only payment is a payment in lieu of notice of €630.  The Complainant submits that this payment is not a payment in lieu of notice but is payment of his wages for the week ending 2 January 2022 when he was on annual leave.  The Complainant submits, therefore, that he is due payment of €630 which represents one week’s notice.

On 13 February 2023, the Liquidator wrote to the WRC to say that it would not attending the hearing and that it did not dispute the claim.

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states:

“4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,   ………”

Based on the uncontested submission of the Complainant, I find that the Complainant had been in continuous employment with the Respondent for over thirteen weeks but less than two years when his employment was terminated on 2 January 2022. Therefore, the Complainant had accrued a statutory entitlement to one week’s notice in accordance with the provisions of Section 4(2)(a) of the Act on the termination of his employment. I find that the Complainant was not afforded his statutory notice entitlement or payment in lieu thereof prior to the termination of his employment with the Respondent.  Accordingly, I find that the Complainant is entitled to compensation in respect of one week’s notice in accordance with the aforementioned provisions of the Act.

I find that the complaint is well founded and in accordance with the provisions of Section 12(1) of the Minimum Notice and Terms of Employment Act, 1973, I order the Respondent to pay to the Complainant the sum of €630 being the equivalent of one week’s pay as compensation for the breach of Section 4(2) of the Act.

Unfair dismissal and minimum notice – no show Respondent