Complainant

Respondent

Parties

Joelson  Santos

Isoldes Construction Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00068587-005

14/01/2025

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

CA-00068587-010

14/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00068587-011

14/01/2025

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

CA-00068587-012

14/01/2025

The Complainant began his employment as a Painter with the Respondent on 13 June 2022 and was paid EUR 850.60 per week. He stated that he was unfairly dismissed by the Respondent in January 2025 and also alleged that he did not receive his minimum notice entitlements. In addition, he stated that the Respondent did not pay him his sick pay entitlements. 

CA-00068587-005:

The Complainant stated that the Respondent did not pay him the sick payments that he was entitled to in October and November 2024 when he was on sick leave.

CA-00068587-010:

The Complainant stated that his relationship with the Respondent began to deteriorate over the course of 2024 when the Respondent began to reduce the number of hours that he worked and was very slow in making payment to him.

CA-00068587-011:

The Complainant stated that he had to work when he was sick because of pressure exercised upon him by Mr Mark O’Brien, the Director of the Respondent.

CA-00068587-012:

The Complainant stated that the Respondent did not pay him the minimum notice pay that he was entitled to when he was dismissed.

CA-00068587-005:

The Respondent stated that he reached an agreement with the Complainant around the payment of both overtime and sick pay that he was entitled to. Specifically, he stated that he gave him personal loans that did not go through his salary but that more than covered any sick pay and overtime that he was due and that were not repaid to him.

CA-00068587-010:

The Respondent’s Director, Mr Mark O’Brien stated that he believed the Complainant had resigned. He stated that he understood this from a text message dated 17 December 2024 received from the Complainant wherein he stated: “Okay Mark, then next year we don’t need to continue.”

CA-00068587-011:

The Respondent’s Director, Mr Mark O’Brien, denied that that he imposed any pressure on the Complainant to come to work when he was sick.

CA-00068587-012:

The Respondent’s Director, Mr Mark O’Brien, stated that the Complainant was not dismissed and so was not entitled to any minimum notice payment.

CA-00068587-005

Section 5(2) of the Sick Leave Act 2022 states:

“(2) An employee shall be entitled to up to and including 3 statutory sick leave days in a year, or such number of statutory sick leave days as may stand specified from time to time by order of the Minister under section 6.”

The number of sick days was increased to 5 in 2024

The Respondent stated that he reached an agreement with the Complainant around the payment of the sick pay that he was entitled to. Specifically, he stated that he gave him personal loans that did not go through his salary but that more than covered the sick pay that he was due.

As the Complainant disputed that any personal loans from the Respondent related to the sick pay that he was due and there was no evidence of any sick payments having being paid to the Complainant from his salary, I find that this complaint is well founded.

CA-00068587-010

The Law:

Section 1 of the Act states as follows:

“dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

Beginning with subsection (a), I examined whether the Respondent had actively terminated the Complainant’s contract of employment. I noted that there were several text message exchanges between the Complainant and the Respondent concerning delays in the payment of wages and the reduction in scheduled working hours. However, there was no formal communication from the Respondent—either written or verbal—indicating that the Complainant’s employment had been terminated.

The Complainant’s claim of dismissal appears to rest primarily on his belief that the Respondent had ended his employment with Revenue, by ceasing meaningful engagement, failing to schedule him for work, and delaying or underpaying him for hours already worked. While these matters may point to a deterioration in the employment relationship or reflect poor management practices, they do not, in themselves, establish a dismissal as defined in Section 1(a) of the Act. Crucially, the Complainant did not take any steps to query why the Respondent had recorded his employment as terminated on Revenue. An employee who genuinely believed they had been dismissed would reasonably be expected to challenge or seek clarification of such a significant development. His failure to do so undermines his contention that the Respondent had unilaterally ended the employment relationship.

Turning to subsection (b), I note that the Complainant did not allege constructive dismissal during the hearing. He clearly and unequivocally stated that he had not resigned. The Respondent, however, stated that he believed the Complainant had resigned, citing a text message dated 17 December 2024, in which the Complainant wrote: “Okay Mark, then next year we don’t need to continue.” Based on this message, the Respondent stated that he treated it as a resignation and subsequently updated the Revenue system to reflect the termination of employment.

Although the Respondent did not seek clarification from the Complainant regarding the meaning of the message, I am of the view that, given its wording, it was reasonable for the Respondent to interpret it as a resignation and to act accordingly on the Revenue system. When considered alongside the Complainant’s failure to contest the Revenue records at any stage, the evidence points more to a mutual breakdown in communication than to a dismissal within the meaning of the Act.

Taking all of the above into account, I am satisfied that there was no termination of the Complainant’s employment by the Respondent, and the Complainant explicitly denied having resigned. As such, I find that the Complainant was not dismissed within the meaning of Section 1 of the Act.

CA-00068587-011:

Section 12 of the Act in relation to penalisation states as follows:

12. (1) An employer shall not penalise or threaten penalisation of an employee for proposing to exercise or having exercised his or her entitlement to statutory sick leave.

(2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of the penalisation both under this Act and under those Acts.

(3) In this section, “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), 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 or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

Findings:

Although the Complainant stated that he had to work when he was sick because of pressure imposed upon him by Mr Mark O’Brien, the Director of the Respondent, he was unable to highlight any penalisation, as set out in the Act above, that he was subjected to.

As no evidence of penalisation was presented, I find that this complaint is not well founded.

CA-00068587-012:

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states:

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Findings:

As I have found in CA-00068587-010 that the Complainant was not dismissed, I find that he is not entitled to any notice payment.

Accordingly, this complaint is not well founded.

CA-00068587-005:

I find that this complaint is well founded for the reasons set out above. As the Complainant did not receive sick pay in respect of the 5 days to which he was entitled, I direct the Respondent to make a payment to him of €850.60, namely five days’ pay.

CA-00068587-010:

I find that the Complainant was not unfairly dismissed for the reasons set out above.

CA-00068587-011:

I find that this complaint is not well founded for the reasons set out above.

CA-00068587-012:

I find that this complaint is not well founded for the reasons set out above.