Complainant

Respondent

Parties

Zohaib  Akhtar

Johnston Hearty Retail Limited t/a Daybreak

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-00056865-001

26/05/2023

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

CA-00056865-002

26/05/2023

The complainant gave his evidence on oath. The interpreter also made the necessary affirmation.

By way of background, he commenced employment with the enterprise as a Costcutter outlet in 2020 and was advised informally at some stage towards the end of 2021 by the owner of that enterprise that he would be retiring shortly.

Following his retirement, the business continued uninterrupted but commenced trading branded  as a Daybreak outlet.

There was no formal notification at any stage of a transfer of undertaking, nor was there any confirmation in writing of it subsequently. But the complainant has worked continuously for the company for three years from January 10th,2020 to March 2nd,  2023.

Following the transfer, the complainant said that hishourswerereduced from forty to either thirty or twenty-five hours with effectfrom January 2023 without his consent and he wastoldthat the hours of other employees had also been reduced.

In fact, he discovered when the rosters were published his hours were the only ones to have been reduced.

He was offered a new contract about a month or six weeks after the change in ownership but he refused to sign as it purported to change his status to that of a temporary employee and he already had a full-time contract.

When he queried the reduction in hours with his manager, he was told that he (the manager)  could do nothing. Some of his co-workers told him his job ‘had gone’ from the store.

He produced in evidence an email sent to the manager on February 13th, 2023, which asked why his hours had been reduced.

In due course he was  asked to attend at the shop on his day off on  February 21st to meet the store manager and Ms Elaine Johnson, the owner’s wife. He  was told they had two complaints against him but did not disclose the nature of the complaints, then or at any stage since.

He was suspended pending an investigation and  toldtheywouldmeetwithhim again inoneweek.

That meeting took place on March 2nd with the owner, at which he was told his contract was being terminated. No reason was given despite his request for one.  He pointed out that proper procedure had not been followed and said that while he was aware of a situation with a colleague that it had been  resolved but again, she would not reveal any details of the alleged complaints.

A data  access request was sent on March 13th  and a second request onApril13th but both were ignored.

He was not paid any notice payment.

The complainant secured employment in July 2023 and therefore was unemployed for four months. He gave evidence of his attempts to mitigate his losses.

The respondent did not attend the hearing.

The facts are well set out in the complainant ‘s evidence above.  As noted, while the respondent did not attend the hearing, I am satisfied that it was on notice of the hearing and was given the opportunity to attend.

The complainant’s employer transferred the business to a new owner, and while no complaint arises here under the Transfer of Undertakings Regulations, on the basis of the evidence such a transfer appears to have taken place in this case.

In such circumstances, and as a matter of law, the terms of an employee’s contract of employment transfer uninterrupted and on the same basis as they were before the transfer took place. In this case, the complainant had a contract of indefinite duration on a full-time basis.

His evidence was that the new owner sought to change this initially by offering a temporary contract and by reducing his hours to part time.

In relation to the former they did not proceed but the hours were reduced to either thirty or twenty-five hours. He protested and sought explanations for the change but to no avail.

In due course, according to his evidence he was invited to a meeting at which he was told that his employment was being terminated in circumstances where there was not even a nod in the direction of fair procedure.

Indeed, while this is bad enough, and sufficient to render the termination an unfair dismissal, there was a vague reference to a complaint against the complainant, about which he was given no details, and which was not the subject of any process of investigation.

While the respondent may have seen this as providing it with some cover for its actions, in fact it does the opposite.

It highlights not only the flimsiness of the grounds for terminating the employment, but in resorting to this pitiable attempt to provide justification for it, the respondent exposes the fact that it was well aware of its unfairness.

This level of disrespect for the complainant’s rights is quite unacceptable.

The complainant gave credible, sworn evidence and in the absence of the respondent who was on notice of the hearing I accept his evidence as representing a truthful and reliable account of what happened.

Accordingly, I find that he was unfairly dismissed. I also find that he was not paid his statutory entitlement to notice which I address below in my award.

The complainant succeeded in gaining employment fairly quickly in July 2023 and this is reflected in my award of compensation.

For the reasons set out above both complaints are well founded.

In  respect of complaint CA-00056865-001 I award the complainant €5500.00.  

In  respect of complaint CA-00056865-002 I award the complainant €450.00

Unfair Dismissal, Minimum notice