Complainant

Respondent

Parties

Matthew  Carroll

Novus Consulting Limited

Representatives

South Leinster Citizens Information Service

 Self-represented

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-00050852-001

25/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00050852-002

25/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00050852-003

25/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00050852-004

25/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00050852-005

25/05/2022

The Complainant alleges he was dismissed without notice on 9 December 2021. The Respondent submits that the Complainant resigned his employment on or after this date. The Complainant also submits that he is entitled to unpaid wages for two days the business closed due to a storm and to annual leave accrued but not taken on cessation of employment. The Respondent submits that the Complainant was paid wages for 7 and 8 December 2021 and that he received all annual leave due to him.

The Complainant commenced employment on 12 August 2020 as a Grill Chef, earning €13 per hour. His hours of work varied from 36 to 40 hours per week. The Complainant normally reported to Mr O’Shea and they communicated via WhatsApp. The Complainant was out of work on sick leave from 6 January 2021 following surgery. He offered to provide medical certificates during this time but was advised by Mr O’Shea that this was not necessary. Mr O’Shea requested that the Complainant stay in contact during his absence. In March 2021 the Respondent was in contact with the Complainant as he wished to update revenue on the employment status of all employees. In May 2021 the Complainant returned to work. The Complainant submitted that there was no break in his service and that he had no knowledge that he had been taken off payroll during his absence. The Complainant submitted that he was employed from August 2020 until December 2021 without any break in service, and accordingly has over one years’ service for the purposes of the Unfair Dismissals Act 1977.

The Complainant submitted that he was dismissed on 9 December 2021 without notice or explanation. On 9 December 2021 the Complainant was working in the kitchen with a new colleague. A manager, “Ms G”, came into the kitchen and asked the new employee to go to the office. The Complainant said to the new employee in jest “oh, you are in trouble”. The Complainant was subsequently requested to go to the office. Ms G said to the Complainant that she was not happy with the comment he made and that there was already complaints against him. The Complainant responded that he was aware that there had been two previous complaints against him. She advised the Complainant that she had spoken to Mr O’Shea and that Mr O’Shea said the Complainant was to “go home”. No explanation was given other than “Kevin said so”. The Complainant was asked to sign a document. He was told he would receive a copy of this document but to date that has not happened.

On his way home the Complainant rang Mr O’Shea to ask him what the story was. Mr O’Shea told the Complainant that he did not know and that he would get back to him. The Complainant later messaged Mr O’Shea via WhatsApp, who responded to say that he was in a meeting and that he would respond later. The Complainant did not receive a call or message from Mr O’Shea as promised. The Complainant messaged Mr O’Shea via WhatsApp the following day to ascertain what the story was as he was rostered to work and he did not know if he was to report for work. The Complainant received a WhatsApp message back from Mr O’Shea in which Mr O’Shea described the meaning of banter and added that there was nine individual complaints about the Complainant regarding bullying and sexual harassment. The Complainant submitted that Mr O’Shea also told him not to contact him via WhatsApp, even though that had been the normal method of communication between them, but rather to email him. Mr O’Shea gave the Complainant an email address. The Complainant emailed the Respondent on 10 December 2021 but he did not receive a reply. The Complainant sent a letter to the Respondent on 13 December 2021, but he did not receive a reply. No one from the Respondent business contacted the Complainant after 9 December 2021. A summary record of WhatsApp communications and the correspondence of 10 and 13 December 2021 were opened to the hearing. The Complainant spoke with the Citizens Information Centre, who made four data access requests to the Respondent on behalf of the Complainant. The Complainant did not receive a response to these four data access requests.

The Complainant submitted that he was aware that two previous complaints had been made against him. The first concerned a colleague who made a sexual harassment complaint when the Complainant brushed up against him to get past him in a small area. The second complaint concerned a comment the Complainant made to a colleague “did you not have a bath” when there was a smell in the kitchen. The Complainant was spoken to about these comments; he apologised to the colleagues involved; and he understood that the complaints had been dealt with informally at the time.

The Complainant submitted that the dismissal had an adverse impact on him. He was admitted to St. John of Gods on 4 January 2022 until 3 February 2022. His doctor certified him as unfit for work. The Complainant was awarded Invalidity Pension in July 2022 and received arrear payments dating back to January 2022.

The Complainant submitted that he is due two days wages (€208) for 7 and 8 December 2021 when the business was closed due to a storm and he was directed by the Respondent not to attend for work.

The Complainant submitted that he is due payment for 19 days annual leave accrued but not taken on cessation of employment. He did not receive his annual leave accrued during the period of sick leave. The Complainant submitted that his claim in respect of annual leave relates to the period April 2021 to December 2021.

The Complainant submitted that he is due wages of €628.14 as payment in lieu of one weeks’ notice.

The Complainant earned €13 per hour and his hours of worked varied from 8 to 30 hours per week. Mr O’Shea submitted that he was in hospital on 9 December 2021 and that there “was no way” the Complainant could have sent him WhatsApp messages on this date, and that if he did Mr O’Shea did not respond to them but maybe his wife had done so on his behalf. Mr O’Shea submitted that he may have seen some of the messages and that the content of the reply to the messages “half sound like” something he might say. Mr O’Shea submitted that he never gave an email address to the Complainant to contact him. Mr O’Shea submitted that the originals of the WhatsApp messages were not opened at the hearing but rather summaries and so there was no evidence of his mobile number attached to these messages.

Mr O’Shea said he spoke with Ms G “7 or 10 days later” about the events of 9 December 2021, and he was told by Ms G that the Complainant “left screaming and shouting” and that the Complainant had “brought his shoes with him” and that this “would lead everyone to believe that he <the Complainant> had resigned”. Mr O’Shea opened an email which Ms G had composed to herself as a record of the events of 9 December 2021. Mr O’Shea confirmed to the Adjudication Officer that Ms G was not available to give evidence in relation to the contents of the email or to give evidence in relation to what happened on 9 December 2021. Mr O’Shea confirmed to the Adjudication Officer that he could not give evidence as to what happened on 9 December 2021 as he was not there.

Mr O’Shea said that the Complainant did not attend for work as rostered on 10 December 2021.  There were other managers and chefs that the Complainant could have contacted in lieu of Mr O’Shea. Mr O’Shea submitted that “I believe he lost the rag and left, he did it several times previously but would always show up the next day”. Mr O’Shea submitted that the Complainant in any event did not have one years’ service to take a complaint of unfair dismissal as he was only employed from 3 May 2021 according to the employee revenue software. While the Complainant had originally commended employment with the Respondent in August 2020, he resigned in March 2021.

Mr O’Shea submitted that the Complainant was “100 percent entitled to pay” for the two days the business was closed to the storm as all other staff had been paid. Mr O’Shea opened a payslip for the relevant week and submitted that the Complainant had been paid for the hours.

Mr O’Shea opened annual leave records and payment for same for the Complainant dating from May 2021, and submitted that these records show that the Complainant was overpaid 23.14 hours holidays in 2021, and therefore he was not due any further payment for annual leave.

Mr O’Shea submitted that he had no difficulty paying the Complainant one weeks’ notice if he was entitled to same, but “knowing his temperament he walked out and resigned”. Mr O’Shea added that it was very difficult to source chefs and that the Complainant was telling lies.

In cross-examination Mr O’Shea was questioned on the failure of the Respondent to contact the Complainant after 9 December 2021. Mr O’Shea replied that he was sick until February 2022 and that Ms G was in control of the business. Mr O’Shea stated that the responses to the Complainant’s WhatsApp messages could have been sent by his wife or could have been automated responses. It was put to Mr O’Shea that he was the Complainant’s point of contact and not any other person in the business.

CA-00050852-001 – Unfair Dismissal

Law

Section 2(1)(a) of the Unfair Dismissals Acts 1977 – 2015 (“the Acts”)  provides that the provisions of the Acts shall not apply (with certain exceptions) to persons who do not have one year’s continuous service.

Section 1(a) of the Acts defines dismissal as including:

“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 . . .”

There must be a dismissal as defined by s 1 of the Acts before a Complainant can obtain redress under the Acts. Where the fact of dismissal is in dispute, it is for the Complainant to show that a dismissal occurred (Walsh v Sweeney, UD 751/1991). If that burden is discharged, the burden of proof then shifts to the Respondent to show that the dismissal was carried out fairly.

Section 6(1) of the Acts provides that the dismissal of an employee shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(7) of the Acts provide that in determining if a dismissal is an unfair dismissal, regard may be had to the: (a) reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) extent (if any) of the compliance or failure to comply by the employer with a disciplinary procedure or with the provisions of any code of practice.

Section 7(1) provides:

“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 . . .  or

(b) re-engagement . . . 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 . . . . ”

Findings

I am satisfied that there is no evidence to support the Respondent’s submission that the Complainant resigned his employment in March 2021. Therefore, I find that the Complainant’s service is continuous since 12 August 2020 and that he has the necessary service to pursue a claim under the Acts.

I find that the Complainant has discharged the burden on him to show that a dismissal occurred on 9 December 2021 for the following reasons.

It was submitted by Mr O’Shea that the Complainant resigned on 9 December 2021. Mr O’Shea submitted that he was told by Ms G that the Complainant “left screaming and shouting” and that the Complainant had “brought his shoes with him” and that this “would lead everyone to believe that he <the Complainant> had resigned”. Mr O’Shea submitted that “I believe he lost the rag and left, he did it several times previously but would always show up the next day”. Mr O’Shea sought to rely on a statement written by Ms G (who remains an employee of the Respondent), however, the Respondent chose not to call Ms G to give evidence in relation to that statement and/or to give evidence in relation to the events on 9 December 2021. Further Mr O’Shea confirmed to the hearing that he could not give evidence as to what happened on 9 December 2021 as he was not there. I therefore prefer the evidence of the Complainant that he was told to go home on 9 December 2021; that he attempted to contact the Respondent on 9 December 2021 and several occasions thereafter to ascertain his employment status; and that the only response he received from the owner of the business was a WhatsApp message outlining the meaning of banter and advising the Complainant that there were nine individual complaints against him regarding bullying and sexual harassment. I am satisfied that the Respondent made no effort whatever thereafter to contact the Complainant or to respond to correspondence from the Complainant. I am satisfied that the Complainant did not resign his employment, but rather was dismissed on 9 December 2021 without notice.

Section 6(1) of the Acts provides that the dismissal of an employee shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. The burden of proof, in this respect, is on the Respondent. Generally the Respondent must show that it had substantial grounds justifying the dismissal and that it followed fair and proper procedures before dismissal. I am satisfied that the Respondent has failed to give sufficient evidence to justify the dismissal of the Complainant, and therefore I find that the dismissal of the Complainant was substantially unfair.

I also find that the Complainant was dismissed without any recourse to fair procedure. The employer failed to comply with the minimal requirements set out in S.I. No. 146/2000 Code of Practice on Grievance and Disciplinary Procedures. The Labour Court has consistently upheld the rights of all employees to fair and proper procedures, in the absence of which dismissals usually must be deemed to be unfair.

Section 7 of the Acts provides that 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 considers appropriate having regard to all the circumstances: (a) re-instatement, (b) re-engagement or (c) compensation (if the employee incurred any financial loss attributable to the dismissal), as is just and equitable having regard to all the circumstances. I find that compensation is the appropriate remedy in the circumstances of this case.

I note that the Complainant has not been available for work since his dismissal due to ill-health and therefore was not available for work. In circumstances where the Complainant is unfit for work due to ill health, no loss accrues under the Acts. In accordance with s 7(1)(c)(ii) of the Acts where no loss accrues, the maximum compensation payable to the Complainant is four weeks’ pay. The Complainant was earning €13 per hour at the time of his dismissal. It is common case that the Complainant’s hours of work varied from week to week. According to the Complainant he worked up to 46 hours some weeks. According to the Respondent the Complainant worked between 8 and 30 hours per week. It would appear from the 32 payslips submitted to the WRC by the Respondent that the average hours worked by the Complainant was 39 hours per week.

I find that the Complainant’s dismissal was substantively and procedurally unfair, and that the Respondent shall pay to the Complainant compensation of €2,028 (the equivalent of 4 week’s pay) which is just and equitable having regard to all the circumstances.

CA-00050852-002 – Organisation of Working Time – Public Holidays

This complaint was withdrawn by the Complainant during the hearing.

CA-00050852-004 - Organisation of Working Time – Annual Leave

In a supplementary written submission submitted to the WRC after the hearing as requested by the Adjudication Officer, the Complainant confirmed that in light of the documents submitted by the Respondent at the hearing, which he had now an opportunity to consider, it was accepted that he had received payment for all annual leave accrued. Therefore, I find that this complaint is not-well founded.

CA-00050852-003 & CA-00050852-005 – Payment of Wages – Payment for 7 & 8 December 2021 & Notice

Law

Section 4(1) of the Minimum Notice and Terms of Employment Information Act, 1994 (“the 1994 Act”) provides:

“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.”

Section 4(2) of the 1994 Act provides:

“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 . . . .”

Section (1)(1) of the Payment of Wages Act 1991 (“the 1991 Act”) provides that wages:

“. . . means any sums payable to the employee by the employer in connection with his employment, including— (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”.

Section 5 of the 1991 Act prohibits employers from making any unlawful deductions from wages. A Complainant is required to show that wages are properly payable for there to be a finding that the non-payment of same was a contravention of the 1991 Act.

Section 6(1) of the 1991 Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that— (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

Findings

CA-00050852-003

In a supplementary written submission submitted to the WRC after the hearing as requested by the Adjudication Officer, the Complainant confirmed that in light of the documents submitted by the Respondent at the hearing, which he had now an opportunity to consider, it was accepted that he had received wages properly payable for 7 and 8 December 2021. Therefore, I find that this complaint is not well-founded.

CA-00050852-005

I have found that the Complainant’s service was continuous since 12 August 2020, and therefore in accordance with s 4(2) of the 1994 Act the Complainant is entitled to a period of one weeks’ notice or payment in lieu thereof on termination of his employment. I also have found that the Complainant was dismissed on 9 December 2021. It is common case the Complainant did not receive statutory notice or payment in lieu of statutory notice on his dismissal. Therefore, I find that wages in the form of payment in lieu of one weeks’ statutory notice were properly payable to the Complainant on 9 December 2021. I find that the Respondent made an unlawful deduction from the Complainant’s wages contrary to s 5 of the 1991 Act in relation to his statutory notice entitlement, and accordingly, that the claim is well-founded. I direct that the Respondent pay the Complainant the sum of €507 (being the equivalent of one weeks’ pay) in unpaid statutory notice entitlement subject to any lawful deductions.

CA-00050852-001

I decide that the complaint under the Unfair Dismissals Act 1977 is well-founded and that the Respondent shall pay to the Complainant compensation of €2,028 (the equivalent of 4 week’s pay) which is just and equitable having regard to all the circumstances.

CA-00050852-002

This complaint under the Organisation of Working Time Act 1997 with respect to public holidays was withdrawn at the hearing.

CA-00050852-003

I decide that this complaint under the Payment of Wages Act 1991 is not well-founded.

CA-00050852-004

I decide that this complaint under the Organisation of Working Time Act 1997 is not well-founded.

CA-00050852-005

I decide that this complaint under the Payment of Wages Act 1991 is well-founded and the Respondent shall pay to the Complainant €507 in unpaid statutory notice entitlement subject to any lawful deductions.

Dismissal in dispute. Notice.