Complainant

Respondent

Parties

Paddy  Phoenix

Alex Crean t/a Dublin Motor Zone

Representatives

William Kelly BL instructed by O'Hanrahan Lally D'Alton Solicitors

 N/A

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-00048638-001

15/02/2022

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

CA-00048638-002

15/02/2022

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

CA-00048638-003

15/02/2022

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

CA-00048638-004

15/02/2022

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

CA-00048638-005

15/02/2022

The complainant submitted claims under Section 8 of the Unfair Dismissals Act, 1977, the Terms of Employment (Information) Act, 1994, Minimum Notice & Terms of Employment Act, 1973 and the Organisation of Working Time Act.  The claims were submitted on the 15th of February 2022 therefore the cognizable time period of the complaint dates from the 16th of August 2021 to the 15th of February 2022.   The complainant’s employment terminated on 10th of September 2021.

The respondent did not attend the hearing.     I am satisfied that the respondent was correctly notified of the date, time and venue for the hearing and that hearing notifications were sent to both his home address and his business address.

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

CA-00048638-001

15/02/2022

The complainant submits that

He commenced employment with the respondent as a Wheel Technician on the 11th of August 2020.

 On the 10th of September 2021, the respondent Mr. C produced a piece of paper detailing five occasions where the complainant was late.  

The complainant submits that he was only two or three minutes late returning from lunch or arriving in the morning.   The complainant submits that only once prior to this did Mr. C tell him to 'watch his lates'.   The complainant further instructs us that this was the only warning he ever received and that he was effectively fired on the spot on the 10th of September 2021.

There was no appearance by or on behalf of the Respondent at the hearing.  I note the Respondent has not filed any rebuttal submissions or documentation.  In the circumstances, no evidence has been proffered on behalf of the Respondent.

The complainant advised the hearing that he had been employed by the respondent as a Wheel Technician from 11th of August 2020 and was dismissed on 10th of September 2021. 

The complainant advised the hearing that he had on the day in question been called up to Mr. C’s private office where Mr. C asked him to sit down and asked how he was.  Mr. C then raised an issue with the complainant in respect of his time keeping telling the complainant that he had been 3 or 4 minutes late on 4 or 5 occasions.  The complainant advised the hearing that Mr. C named 5 specific dates on which he had been a few minutes late and produced to him a piece of paper detailing five occasions on which it was alleged that he was late arriving in the morning or returning from lunch.

The complainant stated that Mr, C had told him that he wasn’t happy.  The complainant advised the hearing that Mr. C then dismissed him saying “you’re finished up here now you’re done”.  The complainant told the hearing that he had only been a minute or two late on a few occasions and that dismissal was a disproportionate response. 

The complainant added that he did not believe this to be the real reason for his dismissal.  He advised the hearing that his supervisor Mr. M had an issue with him, and he told the hearing that Mr. M had been verbally abusive towards him and had thrown things at him and had threatened him.  The complainant when asked stated that there was no formal grievance procedure in place but told the hearing that he had spoken to Mr. C about Mr. M’s behaviour and that Mr. C had told him to stop going through Mr. M but to deal directly with Mr. C himself.  The complainant stated that this wasn’t always possible as Mr. M ran the show when Mr. C wasn’t around.

 The complainant when questioned advised the hearing that he had not received any formal procedure in relation to his dismissal.  He stated that he had received nothing in writing confirming the reason for his dismissal and had received no warning for lateness prior to that day.  He also stated that he was not given notice of the meeting, nor was he advised that he could bring a colleague with him to the meeting.  The issue of being late was raised by Mr. C and Mr. C was also the person who dismissed him.    The complainant also stated that he did not receive any notice or pay in lieu of notice despite working there for 13 months.

The complainant did not produce any documentation in respect of his efforts to mitigate his loss, but oral evidence was adduced at the hearing.   The complainant stated that he had found a new job within 2 or 3 weeks doing similar work, but this was on a casual basis, so it was sometimes only for 1 day per week.    He stated that he had worked on a casual basis like this for about 3 to 4 weeks and had been paid €70 per day for this work.

The complainant added that he had applied for another job in October but stated that once he told them about his personal issues with his previous supervisor, he didn’t hear back from them.  He stated that he also went on ‘Indeed’ to look for jobs and about 2 weeks later got a job.  He stated that this was in the first week of November 2021 and he remained there until March 2022.  The complainant told the hearing that there was then a gap in this employment between March 2022 and September 2022 as he left that employment for a time in March 2022 as he was offered a job by a family friend, but he advised the hearing that ‘it didn’t work out’.   The complainant returned to the previous employer in September 2022 having left in March 2022.

There was no appearance by or on behalf of the Respondent at the hearing and no evidence was proffered in discharge of the burden/onus of proof on the Respondent to show that the dismissal was not unfair.     In the absence of any evidence discharging the burden of proof, it follows that the Complainant’s dismissal by the Respondent was unfair without any requirement to further assess the evidence adduced.

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 considering the redress to be awarded I note that the complainant obtained alternative employment within a short time frame, I also note that the complainant did not help his chances of finding new employment by telling a prospective employer about his past difficulties with a supervisor.  In addition, I note that the complainant in outlining his employment history stated that he had left his new employment in March 2022 as he had been offered a job by a family friend but that this ‘had not worked out’.    Taking into account all of the circumstances of the within case I direct the respondent to pay the complainant €2,800.

I declare this claim to be well founded and I award the complainant redress of €2,800 in respect of the unfair dismissal.

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

CA-00048638-002

15/02/2022

The complainant submits that he was not given a contract of employment until approximately nine months after he commenced his employment which is contrary to Section 3 of the Terms of Employment (information) Act 1994.

It is submitted that there was therefore a failure to provide a written statement of main terms and conditions of employment within two months of employment.

There was no appearance by or on behalf of the Respondent at the hearing.  I note the Respondent has not filed any rebuttal submissions or documentation.  In the circumstances, no evidence has been proffered on behalf of the Respondent.

The Terms of Employment (Information) Act 1994, section 3, sets out the basic terms of employment which the employer must provide to the employee in a written form within two months of starting the employment.

(1) An employer shall, not later than 2 months 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 –

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

c)       the place of work or where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee’s contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof of, if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee’s remuneration,

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month, or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to –

l)    (i)incapacity for work due to sickness or injury and paid sick leave, and

m) (ii pensions and pension schemes.,

n)      the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

o)      a reference to any collective agreements which directly affect the terms and conditions of employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Act also requires this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

It is the Complainant’s position that he did not receive a written statement of his terms and conditions of employment within two months of starting the employment contrary to Section 3 of the Terms of Employment (information) Act 1994.    In the absence of any evidence to the contrary from the Respondent, I find that this complaint is well founded.

 I therefore award the Complainant compensation of €1,000 in respect of this breach.

I declare this claim to be well founded and I award the Complainant compensation of €1,000 in respect of this breach.

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

CA-00048638-003

15/02/2022

The complainant submits that he did not receive payment in respect of his one-week minimum notice period as required by Section 4 of the Minimum Notice and Terms of Employment Act 1973.

There was no appearance by or on behalf of the Respondent at the hearing.  I note the Respondent has not filed any rebuttal submissions or documentation.  In the circumstances, no evidence has been proffered on behalf of the Respondent.

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 of termination after 13 months service and accordingly I am upholding his complaint.   I require the respondent to pay the claimant the equivalent of 1 week’s remuneration in respect of this breach.

I declare this claim to be well founded and I award the complainant the equivalent of 1 week’s remuneration in respect of this breach.

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

CA-00048638-004

15/02/2022

It is submitted that the complainant did not receive his entitlement to annual leave as required by Section 20 and Section 21 of the Organisation of Working Time Act 1997.

There was no appearance by or on behalf of the Respondent at the hearing.  I note the Respondent has not filed any rebuttal submissions or documentation.  In the circumstances, no evidence has been proffered on behalf of the Respondent.

Section 19(1) of the Act provides for the calculation of statutory annual leave as follows:

“(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

The complainant advised the hearing that he had not received his holiday entitlements or payment in lieu of holidays.

This complaint was presented to the WRC on 15th of February 2022 therefore the cognizable time period of the complaint dates from the 16th of August 2021 to the 15th of February 2022.

I note that Section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”. Therefore, I may consider the period from 1 April 2021 to 10th of September 2021, the complainant’s termination date.

Taking into account all of the circumstances of this case I declare this claim to be well founded and I award the complainant €1,000 in respect of this claim.

I find that the complaint is well-founded. Having regard to the totality of the evidence provided, I award the Complainant the sum of €1,000 in compensation.

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

CA-00048638-005

15/02/2022

The complainant submits that he did not receive his rest and intervals at work entitlement as required by Section 11 of the Organisation of Working Time Act 1997.

There was no appearance by or on behalf of the Respondent at the hearing.  I note the Respondent has not filed any rebuttal submissions or documentation.  In the circumstances, no evidence has been proffered on behalf of the Respondent.

The complainant’s representative advised the hearing that this claim related to rest breaks during the working day and that the reference to Section 11 of the OWT Act in the claim form should have been a reference to Section 12 of the OWT.  

Section 12 of the OWT Act places a statutory obligation on employers to ensure that an employee is given breaks during the working day:

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The issue to consider in deciding on this complaint is whether the Complainant received the breaks to which he was entitled under section 12 of the Act.

To demonstrate that the Complainant took the breaks to which he was entitled, section 25(1) of the Act requires the Respondent to keep records to show compliance with section 12 as follows:

“An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.”

The complainant advised the hearing that he received a lunch break of 1 hour per day plus two 10-minute breaks one in the morning and one in the afternoon.  The complainant added that he was often called back early from his morning or afternoon break by his supervisor Mr. M.

Based on all of the circumstances and having regard to the evidence adduced I declare this claim to be not well founded.

I declare this claim to be not well founded.