ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030588
Parties:
| Complainant | Respondent |
Parties | David Byrne | Derfal Ltd National Lubes |
Representatives | The claimant represented himself | Dermot Fallon The respondent did not attend and was not represented at the hearing |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040775-001 | 03/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040775-002 | 03/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040775-003 | 03/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00040775-004 | 03/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040775-005 | 03/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00040775-006 | 03/11/2020 |
Date of Adjudication Hearing: 12/12/2022
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 12 of the Minimum Notice and Terms of Employment Act 1973 , and/or Section 6 of the Payment of Wages Act 1991 and /or Section 7 of the Terms of Employment (Information) Act 1994following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The claimant was employed as Area Manager with the respondent from October 2016 and submitted that he was unfairly dismissed without notice on the 26th.August 2020.He further submitted that the respondent was in breach of the Payment of Wages Act for failing to pay him outstanding wages arising from the deduction in wages imposed when Covid commenced , outstanding holiday pay, commission of €1,223.59 , 2 weeks’ notice and a 6 weeks exgratia payment – in total claimant estimated that he was owed €10,000 from the respondent. He submitted he was dismissed without notice and that he was not given notice of the change to his employment status in accordance with the Terms of Employment (information) Act. 1994.
The respondent did not attend and was not represented at the hearing
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Summary of Complainant’s Case:
The claimant gave evidence as follows at the hearing: The claimant had been Area Manager for the respondent from October 2016 and he was approached by this manager Mr. DF to meet him in a coffee shop in Athlone on the 26th.August 2020.After initial small talk, the manager said to the claimant that he was introducing new changes including recruiting a new person to the region – he told the claimant that he “was gone as of today”. The manager stated that he was going to give the complainant a leaving package consisting of 2 weeks’ notice, his holiday entitlements, underpaid wages due since the commencement of Covid, 6 weeks exgratia payment and that as a gesture of goodwill he could retain the company car for 3 weeks until he could get one for himself. In return the manager wanted a letter of resignation which the claimant declined to give him because as far as he was concerned he had been dismissed and had not resigned. The manager undertook to put the proposal in writing to the claimant and made arrangements to collect the company lap top phone and ipad. The claimant emailed the manager the following day and confirmed he would not be submitting a letter of resignation. The manager phoned the claimant the following day and asserted that this was not a redundancy situation, and it could not be a redundancy as there was too much paperwork. The manager reiterated to the claimant that it was going to be a problem if he did not give him the letter. The manager emailed the claimant with a proposal to pay holiday pay, commission, notice and 6 weeks exgratia amounting to €8,317.34 and asked for his confirmation that payment would be for full and final settlement of his departure. The money was to be paid in 4 instalments. A few days later, the claimant’s replacement called to collect the ipad , phone and laptop and told the claimant that he had been recruited to replace the claimant some 3 weeks prior to departure and was told by Mr. DF that the claimant had left the company , to move regions and do less hours. The claimant denied that any of this was true. The claimant emailed the manager on the 3rd.Sept.2020 agreeing “to the figures listed below in full and final settlement “. On the 4th.Sept. 2020, the claimant received a payment of €626.77 and contacted Mr. DF to enquire about the remainder of the settlement offer. Mr. DF replied that he wanted the Letter of Resignation. A further payment of €1084.30 was paid on the 11th.September and nothing further was paid. The claimant said that no issue had ever been raised in relation to performance and there was no performance appraisal in place in the company. |
Summary of Respondent’s Case:
The respondent did not attend and was not represented at the hearing. |
Findings and Conclusions:
I have reviewed the complainant’s submission and evidence which I found to be compelling and convincing. On the basis of the uncontested evidence of the claimant, I find on the balance of probabilities that his complaints are well founded and I set out below the compensatory awards for these breaches of the 4 Acts. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
On the basis of the uncontested evidence of the complainant, I am satisfied on the balance of probabilities that the claimant was summarily dismissed without investigation or any regard to his rights under natural justice or the provisions of SI 146 of 2000. Accordingly, I am upholding his complaint. In accordance with Section 7 of the Act , in circumstances where the complainant obtained alternative employment within a short time frame , I require the respondent to pay the complainant 4 weeks remuneration – amounting to €3,314.60.
Section 12 of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in relation to the complaint in accordance with the relevant provisions under that Act.
On the basis of the uncontested evidence of the complainant, I am satisfied on the balance of probabilities that he was dismissed without notice and accordingly I am upholding his complaint. I require the respondent to pay the claimant 2 weeks remuneration amounting to €1567.30
Section 7 of the Terms of Employment (Information)Act 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
On the basis of the uncontested evidence of the complainant I am satisfied on the balance of probabilities that the respondent was in breach of Section 5 of the Act and was not given notice of the termination of his employment. Accordingly, I uphold the complaint and require the respondent to pay the claimant 4 weeks remuneration – amounting to €3,314.60
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act
CA-00040775-001
Non-Payment of Outstanding Commission
On the basis of the uncontested evidence of the complainant I am satisfied on the balance of probabilities that the respondent was in breach of the Act by deducting commission of €1,223.59 during the cognisable period from the 4th.April -3rd.November 2020.Accordingly I uphold the complaint and require the respondent to pay the claimant €1,223.59 compensation.
CA-00040775-002
Non-payment of outstanding Holidays
On the basis of the uncontested evidence of the complainant I am satisfied on the balance of probabilities that the respondent was in breach of the Act by failing to pay the claimant outstanding holidays of €2093.75. Accordingly, I uphold the complaint and require the respondent to pay the claimant €2,093.75 compensation.
CA-00040775-003
Non-payment of outstanding wages during the cognisable period from the 4thApril – 3rdNov 2020.
On the basis of the uncontested evidence of the complainant, I am satisfied on the balance of probabilities, that the respondent was in breach of the Act for imposing a deduction in wages without the complainant’s agreement of €3,750 and accordingly I am upholding the complaint. I require the respondent to pay the claimant €3,750 compensation for this breach of the Act.
Dated: 06-03-2023
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Key Words:
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