ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044565
Parties:
| Complainant | Respondent |
Parties | Muhamed Delic | Motorzone Detailing Ltd |
| Complainant | Respondent |
Anonymised Parties |
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Representatives |
| James Webb Director |
Complaints:
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-00055176-001 | 19/02/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00055176-004 | 19/02/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00055176-006 | 19/02/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057604-001 | 09/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00057604-002 | 09/07/2023 |
Date of Adjudication Hearing: 28/11/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 19th of February 2023) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
In addition to the Complaint brought under the Unfair Dismissals legislation above, the Complainant has made further allegations that the Employer herein has contravened provisions and/or enactments of Acts (generally protective employment Acts) which have been specified in Schedule 5 of the Workplace Relations Act of 2015. As the Adjudicator assigned to deal with these matters, my obligation is to hear these further complaints in accordance with the mechanism set out in part 4 (and in particular, section 41) of the 2015 Act. Having heard the complaints in the manner so prescribed I am entitled to consider redress in accordance with the Redress Provisions outlined in Schedule 6 of the Workplace Relations Act of 2015.
In particular, the Complainant herein has referred one complaint of a contravention of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 hours or more.
1/3 of a working week in each month that the Employee has worked in excess of 177 hours.
8% of the hours worked up to 4 working weeks.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded.
- (ii) Require the Employer to comply with the relevant provision.
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Complainant has brought another complaint of a contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015. This is a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
The Complainant says he is entitled to have been paid for a back week as well as overtime.
“Wages”, in relation to an employee , means any sum payable to the employee by the employer in connection with the employment, including –
- (a) Any Fee, bonus or commission, or any holiday, sick or maternity pay or any other emolument referable to his employment whether payable under his contact of employment or otherwise, and
- (b) Any sum payable to the employee on the termination by the employer of the Contract of Employment without his having given to the employee the appropriate notice of the termination, being a sum paid in lieu of the giving of such notice:
Additional complaints were brought by the Complainant under the Redundancy Payments Act 1967 and under concerning an alleged breach of an Employment Regulation Order. Neither of these last two claims was pursued.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. The Specific Details of the Dispute and complaints are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 19th of February 2023. Whilst there was a claim under the Industrial Relations Act 1946, it became apparent from the narrative provided in the February 2023 Workplace Relations Complaint Form that there was no dispute under the IR Acts and that the Complainant had in fact intended that an issue concerning a deduction from his wages to be heard by the WRC. The Complainant issued a second Workplace Relations Complaint Form on the 9th of July 2023 for the purposes of correctly identifying which Acts he sought to make his complaints under. The two ADJ files have been linked and there is no issue as to timing as the Complainant had clearly expressed what his issues with his Employer were (regarding deducted pay and annual leave) within a month of the termination of his employment and expressed in the complaint form issues at that time. In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, to swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.
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Summary of Complainant’s Case:
The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant had forwarded a number of emails to the offices of the WRC over the period of time leading into the date of hearing. These outlined the different issues he had with the Employer. No formal submission was provided, but the Complainant gave oral evidence which, when read together with the emails and WRC complaint form narrative gave me a picture of why the Complainant had brought his claim. I was provided with a few pieces of supplemental documentary evidence in support of the Complainant’s case. These included an unsigned Contract of Employment and some payslips. The Evidence adduced by the complainant was challenged as appropriate by the Respondent. The Complainant alleges that he was unfairly dismissed when he was terminated by a text message seemingly arising out of a purported act of Gross Misconduct perpetrated by the Complainant. The said act of dismissal was executed by the then Finance and Operations Director – Nicola Conroy. The Complainant had a number of further claims arising out of his summary dismissal. These included a claim for overtime, a claim for annual leave and a claim in respect of a back week he says was owing on the date of his dismissal. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes) which appeared to have been articulated in the narrative, but which had not been specifically particularised by this (unrepresented) Complainant. I have done this as outlined above.
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Summary of Respondent’s Case:
The Respondent entity was represented by a company Director - Mr. Webb. Mr. Webb indicated that he was not in a position to rebut the evidence being adduced by the Complainant. This gentleman says that he came into his Directorship some months after the termination of the Complainant’s employment. For reasons not fully explained, Mr. Webb seemed not to be in a position to bring along any witness from the time of the dismissal to the hearing. The Respondent witness set out his position by way of oral evidence which was given on affirmation. The Respondent witness had no knowledge of the circumstances surrounding the dismissal but put the Complainant on full proof of his claims in terms of the alleged unpaid remuneration. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully listened to the evidence adduced by both persons who presented at the hearing. The Complainant is described as an Automotive Technician. He came to work for the Respondent company in and around February of 2020. At that time there was no corporate entity, and the Employer was an individual - a Mr. AC - trading as Motorzone. I understand that Mr. AC continues to work for the corporate entity known as Motorzone detailing Limited which I can see from the Companies Register was incorporated in and around November of 2022. I have no reason not to think that the Complainant’s employment and service was not preserved through the changed name and management team. As noted, the Complainant’ Employer became an incorporated entity in November of 2022. There were two named Directors – a Mr. Fratini and a Ms. Conroy. An issue appears to have arisen in January of 2023 which was relied on by the Director Nicola Conroy as justification for summarily dismissing the Complainant. As I understand it, the Complainant was being accused of soliciting work on the side and from clients of the company. I do not and cannot know whether these allegations are true in whole or in part. The fact is that the Complainant was dismissed by text with no opportunity given to either defend himself or understand where these allegations came from. The burden of proof rests with the Employer to demonstrate that it acted reasonably in all the circumstances. However, at the hearing nobody came forward from the Respondent to give evidence setting out the Employer’s case. In the circumstances and where absolutely no evidence has been offered to justify the act of dismissal, I can only find that this was an unfair dismissal. Mr. Webb gave evidence that he took over this enterprise later in 2023, and long after the Complainant had already been banished from the workplace. Mr Webb confirmed that he is now the sole operational Director of this company and that Mr. Fratini and Ms. Conroy no longer have an interest in the enterprise. Mr. Webb confirmed that the Employees engaged before he took over ownership continue to work for the company. There was no change in the status of the Employer, it was simply a change in who was leading the company. Mr. Webb says he bought into the company though did not provide any contractual agreement. To my mind the status of the employer has not changed, and the Complainant’s complaints have been legitimately made. Unfortunately, Mr. Webb appears to have been a stranger to this matter although one would have thought due diligence would have revealed same. I would also have thought the ongoing liabilities would have been covered by indemnification clauses in whatever contractual arrangements were entered into between the previous Directors and the current one. To be fair to Mr. Webb he was not in the least hostile to this matter taking it’s course and simply asserted he was a stranger to the facts of the dismissal and had no way of verifying the other claims brought. I note from payslips provided (dated December 2022) that the Complainant was earning €765.00 per week gross from Motor zone Detailing Limited. The Complainant has confirmed that he is now self employed in the same area that he had been working with the Respondent company – specializing in the area of alloy repairs. The Complainant says he does not earn as much as he had been earning with the Respondent company. The Complainant provided me with no figures proving his loss. I am of the view that eh Complainant has taken the opportunity to go out on his own and build up his own business. He has not at any time applied for alternative work so as to minimise the losses attributable to the Respondent. I am taking this into consideration in assessing the compensation for the financial loss. The Complainant gave further evidence concerning his other remunerative losses. Again, the Respondent could do very little to rebut same.
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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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00055176-001 – The Complainant was Unfairly Dismissed, and I award compensation for financial loss in the amount of €4,590.00 Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 CA-00055176-004 – This dispute is misconceived and not well founded. There was no evidence that the Employer did not comply with an employment regulation order. Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00055176-006 – This complaint was withdrawn by the Complainant at the hearing. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00057604-001 – This complaint is well founded and I require the Respondent pay to the Complainant a sum in the amount of €538.00 in respect of Holiday pay Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00057604-002 – The complaint herein was well founded and I require the Respondent pay to the Complainant a sum of €500.00 as compensations for overtime and a back week
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Dated: 14th December 2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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