ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00024849

Parties:

	Complainant	Respondent
Parties	Meghan Kestler-Tobias	Peter Kerssens

Representatives

No Appearance by or on behalf of the Complainant at hearing

Donncha Kiely BL instructed by Coakley Moriarty Solicitors

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00031569-001	15/10/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00031569-002	15/10/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00031683-001	19/10/2019

Date of Adjudication Hearing: 09/12/2022

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, section 27 of the Organisation of Working Time Act, 1997, Section 7 of the Terms of Employment(Information )Act, 1994 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 .

Background:

On 15 October 2019, the Complainant, a Hungarian Chef lodged three complaints before the WRC. The complaints arose from a live employment and referred to provision of break periods, a statement of terms of employment, and bullying and harassment procedures.

The Complainant introduced herself as a lay litigant and did not require any special facilities when attending a hearing.

The complaint form was appended by a number of work-related emails.

Four days later 19 October 2019, the complainant submitted a further complaint that she had been unfairly dismissed on that same day. She recorded the time span of her employment as 16 June 2018 to 19 October 2019.

On 31 October 2019, the Employer returned an objection to a requested investigation under the Industrial Relations Act, 1969 and that case was formally closed on 18 November 2019.

Coakley Maloney solicitors came on record in the case for the Respondent on 31 October 2019.

An early stated preference for Mediation by the Respondent was not accepted by the Complainant and the case was listed for Adjudication

The case was first listed for hearing in January 2020 and postponed at the behest of the Respondent.

The National Covid Pandemic followed in time.

Another listed Remote Hearing set for December 1, 2020, was postponed at the behest of the complainant.

On 25 February, and 22 April 2022, the Complainant petitioned to expedite a hearing date in the case. she was assured that a hearing date would follow.

On 7 November 2022, both parties were invited to participate at hearing set for 9 December 2022 at 12 noon.

Both Parties were requested to forward submissions relevant to the case at least 15 days in advance of the hearing.

Neither Party forwarded any documents outside of those on file from October 2019.

On 9 December 2022, the case was the second of two cases set for hearing at the WRC Offices in Cork. It was scheduled to occur at 12 noon.

The commencement of the hearing in the second case was delayed slightly in the context of a “run over in time from the earlier case”, I noted that the Complainant was not in attendance. I explained this to the Respondent and requested that the WRC Case Officer call the Complainant on her phone to check her whereabouts. I was informed that that the Complainants number did not connect. I delayed the commencement of the hearing to facilitate her attendance, but it was not forthcoming.

I commenced the hearing with the Respondent party.

The Hearing concluded at 13.10hrs, having recorded a “no show “from the Complainant. I explained the 5-day rule to the Party present and stated that I would allow 5 days to run to permit an explanation for nonappearance from the complainant.

I added that if a cogent or robust reasoning for nonattendance was placed before me, it would be shared with the Respondent for comment, prior to my making a decision on whether to relist the case.

The Respondent accepted this approach and referred to significant logistical scheduling challenges for 1 witness in the face of a potential relisting for the case.

The 7-person Respondent Party departed the building immediately afterwards.

Shortly after 2pm, I received a call from WRC in Dublin to alert me to the presence of the Complainant in the Cork Office foyer. She requested to speak with me.

I attended the foyer with a copy of notification of hearing. During a very brief conversation in the staffed reception area, the complainant imparted that she had been notified that the hearing in her case had been scheduled for 1pm and not 12 noon. I listened and passed a copy of the notification to her home address, which confirmed a 12 noon start. I explained the 5-day rule to the complainant and requested that she submit her explanation in writing.

During the following week, I received a letter dated December 10, 2022, which I promptly furnished for the attention of the Respondent.

The letter reflected that the complainant had made an out of character and honest mistake. She stated that she had placed the wrong time into her calendar and had got lost when she had arrived in the nearby parking area at 12.45 hrs. The Complainant explained that she did not have an excuse for her nonappearance outside a misreading of the time on the email. she confirmed that the telephone number on file was associated with a former phone. She apologised for her honest mistake.

On January 4, 2023, the Respondent replied to the Complainants letter. The Respondent did not consent to a relisting of the case and cited that the complainant had not furnished any reason for her nonappearance. The Respondent added that the Respondent had incurred significant expense in attending the scheduled hearing and sought that the “no show “declaration stand.

Summary of Complainant’s Case:

CA-00031569-001 Organisation of Working Time Act, 1997

The Complainant recorded that she had not received any breaks in her workplace on her complaint form dated 15 October 2019. The claim was not particularised to dates of contravention.

CA-00031569-002 Terms of Employment

The Complainant recorded that she had not received a statement in writing of her terms of employment on her complaint form dated 15 October 2019.

CA-00031683-001 Claim for Unfair Dismissal

The Complainant recorded details of an internal dispute regarding leaving windows open for ventilation during cooking to prevent her susceptibility to “heat induced headaches”.

The dispute was unresolved, and the complainant recorded that she was notified of the termination of her employment on 19 October 2019, with reasons provided one day later.

The Complainant submitted that this constituted an unfair dismissal.

Summary of Respondent’s Case:

On 31 October 2019, the Respondent Solicitor responded to the complaints by exploration of the option for Mediation with the Complainant.

On 28 November 2019, the Respondent accepted that the pathway in the case had been determined as Adjudication by the complainant. Mr Coakley explained that the Respondent had an active medical condition and sought as much notice as possible for hearing.

The Respondent expected to furnish a detailed response to the allegations made by the complainant.

This did not materialise outside a copy of a correspondence shared with the complainant dated 5 December 2022, where the Respondent sought detail on gross earnings and loss of earnings.

The Respondent disputed all three complaints and submitted that they did not wish to expand further in the case against the “nonappearance “by the complainant.

CA-00031569-001 Organisation of Working Time Act, 1997

The Respondent disputed the claim.

CA-00031569-002 Terms of Employment

The Respondent disputed the claim.

CA-00031683-001 Claim for Unfair Dismissal

The Respondent disputed the claim.

Findings and Conclusions:

I received notice of the three complaints. My role in this case is to hold a hearing where the Parties can be heard on the matter before a decision is shared with the Parties in due course.

In arriving at my findings in this case, I was met by a non-appearance by or on behalf of the complainant at hearing. A concerted attempt to locate the complainant in time for hearing failed.

I was disappointed that she had not kept her file updated with key information, such as an up-to-date phone number. I appreciate that the case was marked by a number of postponements and the national pandemic. However, the case is also marked by an omission of either party to furnish a particularised outline submission.

Section 41(4) and (5) explain the parameters of my jurisdiction in this case in terms of the first two complaints.

CA-00031569-001 Organisation of Working Time Act, 1997

CA-00031569-002 Terms of Employment

(4) The Director General shall refer for adjudication by an adjudication officer a complaint or dispute referred to him or her under paragraph (b) of subsection (3) of section 42 by the Labour Court.

(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall—

(i) inquire into the complaint or dispute,

(ii) give the parties to the complaint or dispute an opportunity to—

(I) be heard by the adjudication officer, and

(II) present to the adjudication officer any evidence relevant to the complaint or dispute,

(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and

(iv) give the parties to the complaint or dispute a copy of that decision in writing.

Section 8(1) of the Unfair Dismissals Act, 1977, explains the parameters of my jurisdiction in this case in terms of the claim for unfair dismissal CA-00031683-001.

Determination of claims for unfair dismissal.

8.— (1) (a) A claim by an employee against an employer for redress under this Act for unfair dismissal may be referred by the employee to the Director General and, where such a claim is so referred, the Director General shall, subject to section 39 of the Act of 2015, refer the claim to an adjudication officer for adjudication by that officer.

(b) Section 39 of the Act of 2015 shall apply to a claim for redress referred to the Director General under paragraph (a) as it applies to a complaint presented or dispute referred to the Director General under section 41 of that Act, subject to the modification that references, in the said section 39, to a complaint or dispute shall be construed as references to a claim for redress so referred.

(c) An adjudication officer to whom a claim for redress is referred under this section shall—

(i) inquire into the claim,

(ii) give the parties to the claim an opportunity to be heard by the adjudication officer and to present to the adjudication officer any evidence relevant to the claim,

(iii) make a decision in relation to the claim consisting of an award of redress in accordance with section 7 or the dismissal of the claim, and

(iv) give the parties to the claim a copy of that decision in writing.

I have given a lot of thought and consideration to the matter of the “non-appearance at hearing “by the Complainant and the commentary from both Parties post hearing.

I fully appreciate that the complainant is a lay litigant and had waited an extended period before her case came to hearing. I have balanced this against the Respondent team led by Counsel and Solicitor.

Both Parties were notified of the forthcoming hearing on 7 November 2022. This notification contained two hyperlinks

1. Guidance notes on adjudication hearings

2. WRC Procedures in Adjudication and Investigations

This was followed by a request for an outline submission from the Respondent in the claim for unfair dismissal.

Documentation in the form of statements/submissions/ summary of evidence relevant to the complaint should be forwarded to the WRC and exchanged with both parties well in advance of the hearing (15 days prehearing)

Neither Party availed of this invitation.

I have considered the complainants nonappearance at hearing. I have balanced it against the extended waiting period engaged in by the Respondent.

I have also reflected that the Complainants initial response to me in the foyer on 9 December 2022, was that the mistake fell on the WRC in terms of notification of time.

I am satisfied that the complainant was on full notice of the time place and starting time of the hearing in her case.. The Respondent had reached out seeking detail in advance of this date . I have found that she did not make an appearance at that time or during the 1 hour 10 minutes that followed.

I am not satisfied that the reasons extended justify my relisting the case. Of course, I have a sympathy for the complainant and where she finds herself at this time. However , I find that I have an obligation, as a Facilitator of Justice for fairness to both Parties and on balance have favoured the Respondent statement on this occasion .

I find that I must conclude that the complainant failed to make an appearance in her notified hearing of these three claims. I accept the Respondent submission that they do not consent to return to the table for want of a cogent reason for that non-appearance on the nominated hearing day .

I have not identified a justifiable reason to relist this case over the non-appearance at hearing I was met with on December 9, 2022. The Complainant was not a vulnerable adult and was proficient in the English language . I am mindful that the Respondent did incur expense in maintaining a presence at hearing.

I appreciate that anyone can make a mistake, but I must conclude that the circumstances determine a final declaration of no show by the complainant, which when everything is taken into consideration, I must find to be unreasonable.

In reaching my decision, I have had regard for the deliberations of the Chairman of the Labour Court in Cribbin Family Butchers T/A the Butchers Block, UDD 2128

CA-00031569-001 Organisation of Working Time Act, 1997