Complainant

Respondent

Anonymised Parties

A Site Lead

An Employer

Representatives

Thomas O’Donnell BL instructed by James Reilly & Son Solicitors

Arthur Cush BL instructed by Kenny Sullivan Solicitors

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-00057941-001

27/07/2023

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

CA-00057941-002

27/07/2023

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

CA-00057941-003

27/07/2023

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

CA-00057941-004

27/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00057941-005

27/07/2023

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

CA-00057941-006

27/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00057941-007

27/07/2023

The Complainant commenced employment with the Respondent. He was responsible for the management of chemical waste, on 18 April 2016. The Complainant gave evidence on Affirmation. Detailed submissions were exchanged between the parties in advance of the hearing dates. A Waste Operator (WO) with the Respondent gave evidence on Affirmation. Onsite Senior Health and Safety Specialist (OHS) also gave evidence on Affirmation.

The Respondent, a filed detailed submissions in advance of both hearings. The Operations Manager (OM) gave evidence on Affirmation. The Health and Safety Manager (HSM) gave evidence on Affirmation. A Project Manager (PM), also gave evidence on Affirmation.

CA-00057941-001  - Unfair Dismissal

t was the Complainant’s evidence that he was dismissed from his employment after being placed on unpaid administrative leave from 3 February 2023, with no information as to the reason or procedure the Respondent was relying on. On 10 February 2023, the Complainant’s solicitor wrote to the Respondent seeking information regarding the Complainant’s status. By reply on the same date, the Complainant’s employment was “terminated with immediate effect” by letter of the same date, signed by the OM.

The Complainant submitted that he was not afforded fair procedures by the Respondent whatsoever, with the first time he became aware of the reason for his dismissal being when it was first disclosed in the Respondent’s submissions.

The Complainant gave evidence that he made efforts to seek alternative employment and mitigate his loss. Payslips and a contract of employment were presented as evidence for the position he commenced in June 2023.

Evidence was presented that he was unemployed for 16 weeks from 10 February 2023 up to 4 June 2023, when he commenced new employment. His financial loss for this period was calculated at €15,177.92. In addition, future loss due to the reduced weekly salary was sought in the sum of €8,464.25 up to the date of the first hearing on 29 November 2023.

The Complainant’s efforts to mitigate his loss were subject to cross-examination. It was the Complainant’s evidence that he did not receive rejection letters for all applications, with the exception of two roles. He attended three interviews and was offered an agency role working 35 hours per week.

CA-00057941-002 – Minimum Notice

It was the Complainant’s evidence that his employment was terminated without being paid his statutory and contractual notice period of one month.

CA-00057941-003 – Annual Leave

It was the Complainant’s evidence he had 23 days annual leave. He stated he carried over annual leave from 2022 together with the annual leave he accrued in 2023 up to his date of termination but could not specify the number of days.

CA-00057941-004 – Public Holidays

It was the Complainant’s evidence that he was not paid in accordance with the Organisation of Working Time Act 1997 for public holidays.

CA-00057941-005 - Penalisation

The Complainant gave evidence that he was penalised, resulting in his ultimate termination on 10 February 2023, for raising a series of complaints regarding the manner in which waste materials were stored, labelled, and shipped at the site where the Complainant was working. The Complainant gave detailed evidence of 25 allegations, with reference to the regulations for handling hazardous chemical waste. He recalled raising his concerns in December 2022 at an online meeting, at his end-of-year review, and in a letter dated 19 January 2023 to the OM. He felt that, regardless of the points raised at meetings, the Respondent would dismiss his input. He described feeling excluded from meetings that followed after he experienced pressure from management not to raise the issues with the client. It was his complaint that, as a consequence of raising these issues, his employment was terminated.

Meeting minutes, photographs, notes, and emails were presented in evidence, along with the Respondent’s Health and Safety Policies.

During cross-examination, the Complainant denied that any issue arose with him that caused his previous supervisors to leave their positions, but he did admit to engaging in mediation with a former supervisor. He added that he was never disciplined. The Complainant did agree that the relationship deteriorated over his last few months of employment. The Complainant was asked why he did not input his concerns into the Respondent’s safety software, TenForce. He stated that he had emailed or flagged the issues “to the people who needed to know.

His previous relationships with supervisors were raised during cross-examination, and the Complainant denied having interpersonal issues with them. He described the PM as being “above” him but not his supervisor.

It was suggested to the Complainant that his issue was with the operational plan to implement a new way of working on the site, and that his interpersonal dispute with colleagues was the source of his conflict with the Respondent.

The Complainant accepted that his role was responsible for safety on the site. He stated that he did not have time to engage with TenForce, despite this being raised by the Health and Safety Manager. It was the Complainant’s evidence that he did not have sufficient onsite support and that “there were only so many hours in the day.”

The internal audit result of 100%, along with the KPI result of 5/5, was put to the Complainant.

WO, a former colleague of the Complainant, gave evidence that he reported directly to the Complainant. He stated that the Complainant reported a leak and that there was an issue with closing the bungs.

OHS gave evidence that the Complainant had raised the issue of the bungs with him, and that it was acted upon. He described the Complainant as someone he trusted and got on well with.

During cross-examination, OHS stated that the Complainant was “excellent” at identifying issues and fixing them before they became a non-compliance. He accepted that there were no significant safety issues of concern because he always relied on the Complainant to identify them.

Detailed legal submissions were presented with the Complainant relying on the recent decision of Patrick O’Connor v Wexford County Council, ADJ-00040852, A Warehouse Operative v A Logistics Company , ADJ-00024736, O’Neill v Toni and Guy Blackrock (2010) 21 ELR 1 and A Forklift Driver v A Paint Coatings Supplier, ADJ-00024139.

CA-00057941-006 – Unfair Dismissal - Protected Disclosure

This complaint was withdrawn at the outset of the hearing.

CA-00057941-007 – Payment of Wages

It was the Complainant’s case that he was due €864.71  which was amended at the outset of the hearing to €1,143.17, being wages he should have received while on administrative leave without pay on 3 February 2023.

CA-00057941-001  - Unfair Dismissal

It was submitted on behalf of the Respondent that by January 2023, there had been a complete breakdown in trust, confidence, and communication between the parties. In these circumstances, it was the OM’s evidence that the Respondent could not continue the employment relationship, as the Complainant had been assigned four successive supervisors, but in all instances, the relationships experienced conflict with the Complainant.

OM gave evidence regarding the steps he took in dismissing the Complainant.

Under cross-examination, OM accepted that there was a procedure in place for disciplining employees and acknowledged that an external investigator had previously been engaged. He also accepted that it was his decision to place the Complainant on unpaid administrative leave, which he explained was due to the stress the PM was under. OM further accepted that he made the decision to terminate the Complainant’s employment.

CA-00057941-002 – Minimum Notice

The Respondent made an open offer at the hearing of payment of one month statutory and contractual notice from 10 February 2023 to 10 March 2023 in the sum of €3,747.05 gross.

CA-00057941-003 – Annual Leave

The Respondent made an open offer at the hearing of payment all annual leave entitlements due and owing.

CA-00057941-004 – Public Holidays

The Respondent made an open offer at the hearing of payment all public holiday entitlements due and owing.

CA-00057941-005 – Penalisation

OM denied that the Complainant had previously raised health and safety complaints, describing the issues as more interpersonal or operational. He also denied that the Complainant was dismissed because he raised a complaint of bullying against PM. OM gave evidence that he was looking out for the other employees' welfare. Under cross-examination, he stated that he did not believe he had shared the complaint of bullying with PM upon receiving it from the Complainant.

During cross-examination, OM stated that he checked the TenForce system on a weekly basis and kept up to date on health and safety issues. OM accepted that he encouraged the Complainant to work with PM and acknowledged that there was a breakdown in their working relationship, particularly in relation to the management hierarchy. OM agreed that the Complainant was unhappy due to the contents of the letter dated 19 January 2024, with the Complainant’s counsel suggesting that the Complainant took it more seriously. OM accepted that he did not speak to the Complainant again after receiving the letter.

HSM, the Health and Safety Manager, gave detailed evidence regarding the TenForce system. He testified that he had engaged with the Complainant about using the system and, when an issue arose with the boiler, asked the Complainant why he had not logged the incident into the system. A week later, HSM entered the incident himself when the Complainant had not done so. HSM provided two further examples of the Complainant’s use of the TenForce system. In August 2022, an issue arose with a chemical, and HSM said he “took issue” with the Complainant for failing to immediately report the incident on TenForce, which would have allowed HSM to evaluate the risk.

It was put to HSM that the Complainant had testified to informing other employees of incidents. HSM explained that this was not the proper way to handle such matters, as it could be too late and there would be no record. He added that the Complainant’s role under the Safety, Health and Welfare at Work Act 2005 was effectively that of the employer on the client’s site, agreeing with the Complainant’s own statement that “spotting these issues was part of his job.” HSM’s evidence was that the Complainant had ample training on how to use the TenForce system, but despite this, had little to no engagement with it, which he found “very disappointing.” HSM also stated that there was no disincentive to report issues on site, citing the example of selecting health and safety champions within the Respondent company, who received a reward for reporting incidents.

Each of the 25 allegations of protected acts set out by the Complainant was put to HSM. He referred to the internal audit from June 2022 to July 2023, which achieved 100% scores. He testified that these scores could not have been achieved if the Complainant’s examples were accurate. None of the allegations were raised with him or recorded on TenForce, which he said was the proper channel for such matters.

During cross-examination, HSM was asked how he would become aware of safety issues, to which he replied that it would be through the TenForce system. He acknowledged that there were times when issues would be shared with the client separately. HSM testified that he interacted with the Complainant twice yearly for training and assessments and that he had encouraged him to use the system twice in 2022. HSM also accepted that the client used SAP onsite.

PM gave evidence about her difficulties managing the Complainant, despite her efforts to work with him. She testified that the Complainant ignored her request to sit down and conduct a root cause analysis of an error with a load, choosing instead to file a complaint of bullying against PM with OM. PM denied that her response to the Complainant’s email in October 2022 was “aggressive.” She expressed a desire to work as a team but agreed with the Complainant’s counsel that there had been a “relationship breakdown,” which led PM to discuss the Complainant with HR.

CA-00057941-006 – Unfair Dismissal - Protected Disclosure

This complaint was withdrawn at the outset of the hearing.

CA-00057941-007 – Payment of Wages

The Respondent made an open offer at the hearing of payment of six working days from 3 February 2023 to 10 February 2023 in the sum of €1,143.17 gross.

A series of detailed legal submissions were received and considered from the Respondent.

Anonymisation of Decision

The Respondent objected to the matter being heard in public due to the commercial sensitivities of information relating to third parties.

The complaint was heard over two days. A considerable amount of evidence was presented and examined by the parties. While this decision focuses only on the evidence relevant to the employment relationship between the employer and employee, there are a series of allegations relating to commercially sensitive matters that could reasonably be considered damaging to the Respondent’s reputation, particularly in circumstances where the Complainant failed to discharge the burden of proof, as outlined in detail below. In these particular circumstances, I have decided to accede to the Respondent’s application to anonymise the decision.

CA-00057941-001  - Unfair Dismissal

The complaint of unfair dismissal was not disputed by the Respondent. Therefore, it is deemed that the Respondent accepts the Complainant was unfairly dismissed without any regard for fair procedures.

Evidence was presented showing that the Complainant was unemployed for 16 weeks, from 10 February 2023 until 4 June 2023, when he commenced new employment. His financial loss for this period, including both actual and future loss, was calculated at €23,642.17 up to the date of the hearing in November 2023.

Having carefully considered the Complainant’s documentary and oral evidence, which included numerous job applications made between 22 February and 24 May 2023, as well as his testimony during cross-examination, I find his evidence to be credible and accepted.

In these circumstances, the Complainant’s total financial loss amounts to €23,642.17.

CA-00057941-002 – Minimum Notice

Section 12 (1) of the Minimum Notice and Terms of Employment Acts 1973 to 2001:-

12. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

I find there was a contravention of the Act where the Respondent did not dispute the complaint and award the Complainant compensation in the sum of one months’ notice being €3,747.05  for the loss sustained by the Complainant.

CA-00057941-003 – Annual Leave

Section 27 (3) of the Organisation of Working Time Act 1997 provides for redress:-

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount

(if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

It is noted that the Respondent did not dispute the complaint and agreed to make payment for any outstanding annual leave. However, the Complainant was unable to provide evidence of the exact number of annual leave days owed. In the absence of such evidence, it is not possible to issue an order for compensation.

Consequently, I find that the complaint is well-founded and require the Respondent to comply with Section 23 of the Organisation of Working Time Act 1994.

CA-00057941-004 – Public Holidays

Similarly, the Complainant did not provide evidence or specify in his Complaint Form which public holidays he was not paid for by the Respondent. Again, it is noted that the Respondent did not dispute the complaint. Consequently, I find that the complaint is well-founded and require the Respondent to comply with Section 21 of the Organisation of Working Time Act 1994.

CA-00057941-005 – Penalisation

Section 27(1) of the Safety, Health and Welfare at Work Act provides that “penalisation” includes:

“In this section “penalisation” includesany act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.”

Section 27(3) of the Act prohibits penalisation or the threat of penalisation against employees provides:

“(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.” (emphasis added)

The second limb of the test requires consideration as to whether the Complainant suffered “detriment” as a result of raising the complaint with a causal connection between the acts and the complaint.

In St. John’s National School v Akduman (HSD102), the Labour Court held:

“In order to succeed, the Complainant must establish that the acts or omissions on the part of the Respondent affected her terms or conditions detrimentally. She must then establish that there is a causal connection between these acts of omissions and her complaint regarding health and safety matters.”

The Court continued:-

“This Section [Section 27]  is intended to protect employees who exercise any of the rights referred to at Subsection (3) from retaliatory conduct by their employer. In applying the provision the Court must be careful to recognise the distinction between a detriment which may be suffered by an employee as a result of an employer’s failure to fulfil a duty under the Act and a detriment amounting to “penalisation”.”

The Labour Court identified the appropriate test:-

“It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of”.

The Labour Court inPatrick Kelly t/a Western Insulation v Algirdas Girdsius (HSD081)was clear in its requirement for there to be a causal connection between the detriment suffered and that detriment was imposed in reprisal for the employee’s complaint:

“Thus it is perfectly plain that in order to succeed in a cause of action grounded on the Section a Claimant must establish not only that he/she suffered a detriment of a type referred to at subsection (1) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at subsection (2).”

The Complainant’s case was that he raised a myriad of complaints to the Respondent regarding his work in the year prior to his termination, with a formal complaint sent to OM on 19 January 2023. The Complainant presented a list of 25 allegations, which were refuted by HSM in evidence. Additionally, the Complainant alleged that he was being coerced and intimidated by senior management.

Considering the evidence before me, of particular note was the Complainant’s response when asked if he had flagged all 25 allegations. He replied, “I’d be 100% sure I flagged them to someone in some shape or form.” However, during cross-examination, the Complainant stated that he did not have time to input issues into TenForce, yet he had time to raise some of these issues directly with the client, with only one example, on 25 July 2022, being recorded in the TenForce system. This was despite the Complainant receiving training and specific directions from HSM, along with financial rewards and acknowledgments being offered for reports made through the system. By his own admission, the Complainant did not engage with the system. For these reasons, I do not accept the Complainant’s claim that he was discouraged by HSM or the Respondent from reporting via TenForce.

HSM provided credible evidence on each of the 25 allegations. It is noted that the Respondent was only made aware of four issues: the first arose from an onsite meeting where the Complainant received training in using the correct PPE; the second was recorded in TenForce, with the Complainant being reminded that he should have known not to put himself or his colleague in danger; the third example involved retaining a drum of Oxalyl Chloride onsite; and finally, the fourth led to a review of the risk assessment.

The drum of Oxalyl Chloride, which was the subject of an email exchange between the Complainant and his superiors on 22 March 2022, is of particular significance. When asked if there were any safety-related issues, the Complainant replied, “No [name], nothing from me,” deferring to his superior, who then referred to flagging the issue in TenForce. The evidence suggests that it was his colleagues who raised this issue via TenForce, with no protected act being raised by the Complainant himself.

It was also HSM’s evidence that a number of the allegations fell within the Complainant’s responsibility as the onsite representative of the Respondent, for which he had received training. I find that the Respondent strongly encouraged reporting any health and safety issues through the appropriate channels. It is entirely unclear from the remaining examples who in the Respondent’s organisation, if anyone, was made aware of these issues by the Complainant or when these incidents allegedly occurred, as the Complainant only gave a broad statement in his evidence when asked directly.

The Complainant stated that three of the allegations were reported to the client, with no indication that the Respondent had been informed. This was supported by OHS’s evidence, which was limited to the Complainant raising compliance issues with the onsite client staff. OHS provided a specific example involving a bung issue that was brought to his attention onsite and acted upon. WO also gave evidence of an issue with a bung, which aligns with the Complainant’s testimony that it was reported only to the client onsite. However, there was no evidence that the issue was notified to the Respondent or reported via the TenForce system.

Section 27(3) specifically requires that the Respondent be informed of the protected acts to satisfy the burden of proof. With the exception of the three allegations accepted by HSM, I find that the remaining allegations do not constitute protected acts, as there is no evidence that the Complainant reported them to the Respondent. Therefore, the burden of proof has not been discharged by the Complainant.

The next consideration is whether, in raising these issues, the Complainant suffered a detriment. Regarding the incident involving WO on 22 July 2022, it was the evidence of both the Complainant and HSM that this was reported to the Respondent via TenForce. The Complainant testified that he reacted in a state of panic. HSM, however, stated that it was the Complainant’s actions that placed both himself and his colleague in danger. WO’s evidence simply confirmed that the incident occurred. There is no evidence of a causal connection between the incident on 22 July 2022 and the alleged detriment, namely the Complainant’s dismissal on 10 February 2023. Furthermore, there was no evidence of any repercussions or penalisation at the time of the incident.

The other two protected acts, relating to PPE and the changing of bungs, which were subject to a Risk Assessment Review, remain unclear in terms of when these reports were made to the Respondent. Neither the Complainant nor HSM provided any evidence regarding the timing of these events. Although photographic evidence was submitted, it lacked any dates. In the absence of evidence regarding when these incidents allegedly occurred, or more importantly, any causal connection between them and the detriment the Complainant claims to have suffered, I find that the Complainant has not satisfied the burden of proof.

In addition to the 25 allegations, the Complainant provided evidence that he was put under pressure by the Respondent to move the logistics activities of the business off-site, as had been done at other sites. He argued that this conflict contradicted the client’s procedures; however, PM’s email dated 27 April 2022 assured him that another colleague was responsible for engaging with the client and completing the necessary contracts. This clearly indicates that the Respondent did not have a plan that was being hidden from the client, nor was it the Complainant’s area of responsibility, despite his protests about the client’s procedures and his own reputation. Despite this reassurance, the Complainant expressed in an email in January 2022 that he felt caught between a "rock and a hard place."

While working on the client site, the Complainant appeared to be confused about who his employer was. Although there is no doubt about his commitment to his work, it seems that his questioning of his employer’s instruction to remove the logistics activity from the client’s site was misconstrued.

For these reasons, I find that the work instruction given to the Complainant, in his role as Waste Operations Lead for the Respondent, cannot be considered a protected act under the Safety, Health and Welfare at Work Act 2005.

The Complainant also alleged that he was subjected to coercion and intimidation by senior management. He raised a formal complaint in an email to OM on 19 January 2023. The logistics plan and the reporting line appear to be the main sources of the Complainant’s conflict with PM, as indicated in his email with the subject line “Bullying and Work Environment.” He referred to an “unhealthy working environment” that had “escalated” in recent months and expressed his interest in the site coordinator role.

In his oral evidence, the Complainant mentioned having a meeting with OM in December 2022, where he “touched upon the issues” he had with PM. He stated that he wrote the email in January 2023 because “people were shouting at me over various things” and “they put a lot of pressure on me with multiple meetings.” He later testified that he was excluded from meetings with the client, particularly one where the decision to move off-site was communicated.

OM denied in his testimony that the Complainant was dismissed for raising a complaint of bullying. However, it is worth noting that he also testified to a “fundamental breakdown” in day-to-day and interpersonal issues between the Complainant and PM, which had also arisen with the previous two supervisors. It is further noted that he also outlined previous procedural steps taken to address a grievance.

A report referencing bullying in the workplace to OM can be considered a protected act pursuant to Section 27(3)(c). Therefore, the Complainant has discharged the burden of proof in relation to this first limb.

When considering whether raising this protected act resulted in a detriment, OM’s evidence must be carefully evaluated. He testified that when he received the email of 19 January 2023, he was aware that PM was under stress due to the Complainant wanting to maintain control over the logistics on-site and not implement the plan. OM described his concern for the welfare of other employees as a consideration in the decision to dismiss the Complainant.

I do not accept OM’s assertion that the Complainant was not penalised for sending the email on 19 January 2023. I find that but for the Complainant’s email considered, a protected act, he would not have suffered a detriment, namely, his dismissal. The motive was clear, as OM chose not to share the email with PM for her response or to seek an independent investigation. Instead, he placed the Complainant on unpaid administrative leave for a period of 7 days in February 2023 before ultimately dismissing him. Therefore, I find that there was a direct causal connection between the email and the dismissal.

I conclude that the complaint of penalisation is well-founded only in relation to the email of 19 January 2023 and not in relation to the other two complaints.

The Respondent submitted there was a bar on recovering for an unfair dismissal under two heads of complaint. Referring to Section 27 of the Safety, Health and Welfare at Work Act 2005, it submitted:-

“(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.”

Consequently, where an award has been made in the Unfair Dismissal complaint, I do not have the jurisdiction to make a second award for dismissal pursuant to Section 27 (5) of the 2005 Act.

CA-00057941-006 – Unfair Dismissal - Protected Disclosure

This complaint was withdrawn at the outset of the hearing.

CA-00057941-007 – Payment of Wages

Section 6 of the Payment of Wages Act 1991 provides for the redress:-

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

I find the complaint is well founded where the Respondent did not dispute the complaint.

I direct the Respondent to pay the Complainant the sum of €952.64 being the amount of the wages that would have been paid to the Complainant in respect of the week immediately preceding the date of the payment.

CA-00057941-001  - Unfair Dismissal

I find the Complainant was unfairly dismissed. For the reasons outlined above I award the Complainant the sum of €23,642.17.

CA-00057941-002 – Minimum Notice

I find there was a contravention of the Act where the Respondent did not dispute the complaint and award the Complainant compensation in the sum of one months’ notice being €3,747.05  for the loss sustained by the Complainant.

CA-00057941-003 – Annual Leave

I find the complaint is well founded and require the Respondent to comply with Section 23 of the Organisation of Working Time Act 1994.

CA-00057941-004 – Public Holidays

I find the complaint is well founded and require the Respondent to comply with Section 21 of the Organisation of Working Time Act 1994.

CA-00057941-005 – Penalisation

I find the complaint in part is well founded. However, I do not have the jurisdiction to make a second award for unfair dismissal pursuant to Section 27 (5) of the 2005 Act.

CA-00057941-006 – Unfair Dismissal - Protected Disclosure

This complaint was withdrawn at the outset of the hearing.

CA-00057941-007 – Payment of Wages

I direct the Respondent to pay the Complainant the sum of €952.64 being the amount of the wages that would have been paid to the Complainant in respect of the week immediately preceding the date of the payment.