Complainant

Respondent

Parties

Charlie  Wheatley

Donagh Kelly & Anita Kelly

Representatives

John Joy, Solicitor, of John M Joy & Co Solicitors

 Not Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00052256-001

16/08/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00052256-002

16/08/2022

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

CA-00052256-003

16/08/2022

The issue in contention concerns the alleged Unfair Dismissal of the Complainant, a Yard Manager from a Stables. Associated complaints of failure to receive Statutory Minimum Notice and breaches of the Terms of Employment Information Act were also made.

The employment commenced on the 1st October 2018 and finished on the 7th of April 2022.

The rate of pay was €1,726 per month with free “all in” accommodation plus stabling for the Complainant’s own horse.

1:1        CA-00052256-001 Unfair Dismissals Complaint.

The Complainant gave a lengthy oral testimony assisted by his Representative, Mr. Joy.  He had a long career in the Horse /Equine industry. He had been employed at the Respondent Yard since 1st October 2018. All had gone well and there were no complaints ever brought to his attention. There may have been a difference of opinion over “Dressage Horses” and a Rider, Mr B, brought in the owners, but it was nothing of any major significance.

The Owners were often overseas.

On the morning of the 7th April 2022, Ms AK, one of the joint owners, met the Complainant in the Yard. She was in an agitated angry state, and she told him abruptly “You are dismissed”. He would be paid until the end of the month.  No discussions took place, and No Appeal was offered.

In addition to loosing his employment he also lost his on-site Accommodation and free stabling for his own private Horse.

1:2        CA-00052256-002 Terms and Conditions of Employment.

He did not have a written Contract of Employment.

1:3        CA- 00052256-003 Minimum Notice Complaint.

He had not received any proper notice of his termination.

1:4        Summary

Mr Joy pointed out that all employment legislation had been most egregiously breached. The Complainant was seeking Compensation for the Loss of Employment and Accommodation.

The Respondent offered no mitigating evidence. The Respondent was fully aware of the date and time of the Hearing on the 15th March which was referred to in a letter from Lavelle Partners Solicitors on the 14th March. They had written to the WRC giving notice that they were coming off record.

No Respondent evidence was presented.

3:1        CA-00052256-001 Unfair Dismissals Complaint.

3:1:1        The Law and Unfair Dismissal

The relevant Law is the Unfair Dismissals Act ,1997 supported by the provisions of S.I. 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures. There is also a most extensive body of Legal precedents. The overriding Legal Principles are those of Natural Justice which have to be seen to be followed at all times.

Section 1 of the UD Act, 1977 under Definitions defines Dismissal as

“dismissal”, in relation to an employee, means—

( a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

Section 6 of the UD Act,1977 provides

Unfair dismissal.

6

6.— (1) 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.

Legal precedents as set out in Redmond on Dismissal Law, Bloomsbury, 2017 and Meenan, Employment Law, Round Hall, 2015 make the following points.

In a Dismissal situation the first issue that must be considered is whether or not a Dismissal actually took place and then, if it was at the instigation of the Employer or if the Employee resigned – a Constructive Dismissal.

In all procedures that follow the Employee has to be given the full benefits of Natural Justice – he or she has to have a full impartial investigation, to be made aware of all charges or complaints against him, have a full opportunity to answer these charges, to have a decision made that is not tainted by other non-related issues and that is “reasonable”.  The maker of the Dismissal decision has to be as independent as possible and not an actor or participant in the scenario leading to the Dismissal.  An Appeal to an Independent Body has then to be offered. The Employee is expected to participate fully in all Employment Procedures involved unless there are particular and good reasons for not doing so.

All cases rest on their own facts and particular local circumstances and I will now look at these.

3:2         Review of the evidence presented.

The Complainant gave a Sworn Oath and was cautioned, as customary, by the Adjudicator regarding the Legal position of committing Perjury.

On the sworn Testimony an Unfair Dismissal clearly took place and no procedures were followed.

It only remains to establish the appropriate redress under Section 7 of the Unfair Dismissals Act,1977 – relevant sections quoted below.

Redress for unfair dismissal.

7.—(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:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(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, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

In this case the Complainant opted for Compensation as Re- Instatement er Re Engagement were not realistic options.

He pointed to the totality of his Financial Loss of being the lost Wages but also the Accommodation and stabling for his horse.

3:3         CA-00052256-002 Terms and Conditions of Employment.

The Complainat, under sworn Oath, stated that he had not received any written contact of employment.

Relevant Sections of the Act are quoted below.

Terms and Conditions of Employment (Information) Act, 1994

Written statement of terms of employment. Section Three

3.—(1) An employer shall, not later than one month 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—

Section 7 – Adjudication Officer complaints

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G,  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 adjudication officer,

(d) F39[in relation to a complaint of a contravention under change [section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, ] and without prejudice to any order made under paragraph (e)] order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of 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.

Accordingly in this case the Adjudication Officer can award compensation to a maximum amount of four weeks renumeration.

3:4        CA- 00052256-003 Minimum Notice Complaint.

The Complainant stated in his complaint form that he had not received his Statutory Minimum notice. However, in the oral testimony if became clear that had been paid notice to the end of April 2022 which would satisfy the Legal requirements.

Unfair Dismissal, Minimum notice, Written Contracts of employment.