EMPLOYMENT APPEALS TRIBUNAL
The appeals came before the Tribunal by way of contra appeals by both the employee and the employer against a Rights Commissioner Decision under the Unfair Dismissals Acts, 1977 to 2007 (reference: r-111435-ud-11/MMG).
The employee also appealed a Rights Commissioner decision in relation to the Terms of Employment (Information) Act 1994 and 2001, (reference: r-111432-te-11/MMG).
In addition the employee lodged direct claims under the Redundancy Payments Acts, 1967 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005. The claim under the Redundancy Payments Acts, 1967 to 2007 was withdrawn at the outset of the hearing.
The parties and claim numbers are as follows:
Sergejs Udalous -employee UD1473/2012
Southeast Vegetable Producers Limited -employer UD1516/2012
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Mr N. Dowling
heard these appeals at Wexford on 8th July 2014
Employee: Richard Grogan & Associates, Solicitors, 16 & 17 College
Green, Dublin 2
Employer: Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
Summary of evidence:
Dismissal as a fact was in dispute.
The respondent company comprises of a group of farmers who grow carrots and in the past the company also grew broccoli. The employee in this case was employed on a seasonal basis from March 2001. He initially picked and packed carrots but in 2007 he started to drive the forklift for which he received an increase of .50cent per hour.
It was the Managing Director’s evidence to the Tribunal that the carrot picking season begins in late July or August depending on weather conditions. The season continues until March or April depending again on weather conditions.
Each year the employee was informed that his contract would terminate once the carrot season was over and he would have known of this a month beforehand. All of the employees were informed each season that work would be available the following season should they wish to return. Usually the employees make contact with the company to find out the start date for the new season. In the off-season the factory closes but in the past there was some work with broccoli picking but this work was of a more casual nature. Usually the company employs students for this work and the employee in question would have supervised them if he worked during the broccoli season.
A P45 was given to each employee at the end of every season for social welfare purposes and a P45 in the employee’s name for 2010 and 2011 was opened to the Tribunal. The Managing Director had expected the employee in question to return the following season and was surprised when he was informed by one of his colleagues that he was not returning. The Managing Director refuted that the employee was offered a lower rate of pay to return to work in 2011. The only reason wages would have changed is if the national minimum wage was altered.
The Floor Manager gave evidence that usually employees attend at the factory to find out when the new season is starting although the employees have an approximate idea of when this is. The Floor Manager tried to contact the employee in question six times from June 2011 onwards about the work for the new season. He received one text message back asking what he wanted. He tried to telephone the employee but the call went unanswered. He text the employee asking him to telephone him but no contact was received. The employee’s position was still available in October 2011 when an offer of re-engagement was made to him. Since then another forklift driver has been employed.
A fellow employee gave evidence that he carried out an increased amount of forklift from the time the employee in question left. He has also worked for a long time with the company and is aware of when the carrot season ends. He stated that he receives a P45 and social welfare payments at this time each year.
It was the employee’s evidence that when he received a P45 on 10 April 2011 he thought to himself that his “job was finished” as this was the first time in 10 years that he had received a P45. He went abroad for a period of time and when he returned he enquired from his colleagues about the work and they confirmed they had returned to work and that they were paid €7.65 per hour. A colleague informed him that there was no work for him at that time but the employee accepted in cross-examination that he was not informed of this by the company. The employee hoped to get his job back and he sent a text to the Floor Manager asking if there was a position for him and at what rate of pay. He received a text message asking him to telephone. The claimant repeated the earlier text message he had sent but received no response. He stated that he was appealing the decision of the Rights Commissioner as he wished to be re-instated. He lodged his claim with the Rights Commissioner service in July 2011 when he had not been offered the work on the broccoli. He gave evidence of loss and stated that he was not made aware by his representative of the offer of re-engagement made by the company in October 2011.
The representative for the employee put forward a written submission in relation the claim under the Terms of Employment Acts.
The complaint under the Unfair Dismissals Acts 1977-2007:
Having considered the evidence of the parties adduced at the hearing the Tribunal determines that the employee was not dismissed, actually or constructively, for the following reasons:-
(1) No oral or written dismissal issued from the employer to the employee. The employee is relying on the receipt of a P45 as notice of a dismissal. A P45 is not notification of a dismissal. A P45 is a statutory document that an employee is entitled to be furnished with on cessation of employment whether the cessation occurs because of a dismissal or otherwise.
(2) The employee in cross-examination admitted that he had not been told by management at the employer company that there was no work for him rather the employee said he was told this by a work colleague, a fellow countryman.
(3) The failure by the employee to ascertain from the employer what the true situation was regarding his future with the company and his failure to make any meaningful efforts to return to his job leads the Tribunal to conclude that for whatever reason the employee did not want to return to work for the 2011-2012 season.
(4) The employee lodged his claim with the Rights Commissioner before the return to work due date.
(5) The employer does not appear to have anything to gain from dismissing the employee as it was clear to the Tribunal that the employee was a good worker who had been employed for a considerable number of years by the employer and in fact during that time the employer had promoted the employee and increased his hourly rate of pay.
The mere issuing of a P45 to the employee in the particular circumstances of this case cannot be construed as conduct such as entitled the employee to consider himself constructively dismissed. The Tribunal, however, is critical of the fact that the employer was not more proactive in ascertaining why the employee did not return in June or July 2011 taking into account that up to June or July 2011 he had returned each year.
Accordingly, the employer’s appeal under the Unfair Dismissals Acts 1977-2007succeeds and the employee’s appeal fails. The Tribunal sets aside the determination of the Rights Commissioner dated 31st August 2012.
The complaint under the Terms of Employment (Information) Act 1994.
The employee claimed that the employer breached the Terms of Employment (Information) Act 1994as follows:-
- The statement in writing required to be given to the employee pursuant to section 3 of the Act of 1994 did not contain the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000 as is required by section 3(1)(g) of the Act of 1994.
- The statement in writing required to be given to the employee pursuant to section 3 of the Act of 1994 failed to state that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section as is required by section 3(1) (ga) of the Act of 1994.
- The statement in writing required to be given to the employee pursuant to section 3 of the act of 1994 did not contain particulars of the times and duration of rest periods and breaks referred to in sections 11, 12 and 13 of the Organisation of Working Time Act 1997 that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks as is required by article 3(1) of the Terms of Employment (Additional Information) Order 1998 (SI 49/1998).
- The statement in writing required to be given to the employee pursuant to section 3 of the Act of 1994 stated that the leave year was from January to December rather than stating that the "leave year" means a year beginning on any 1st day of April.
Having considered the submissions of the legal representative for the employee the Tribunal finds as follows:-
That there was no breach by the employer of section 3(1)(g) and (ga) of the Act of 1994 as the contract clearly contained a statement as to what the hourly rate of pay was and this satisfied the requirements of both section 3(1)(g) and (ga).
That there was a breach of article 3(1) of the Terms of Employment (Additional Information) Order 1998 (ST49/1998) in that the contract did not contain particulars of the times and duration of rest periods and breaks referred to in sections 11, 12 and 13 of the Organisation of Working Time Act 1997.
That there was no breach in any misstatement of the leave year under the Terms of Employment (Information) Act 1994 as there is no requirement in section 3 of the Act requiring the employer to specify the leave year. Rather section 2 of the Organisation of Working Time Act states that a leave year is a year beginning on the 1st April.
Taking into consideration the comprehensive contract and additional information provided to the employee the Tribunal finds that employer complied with the spirit of the Terms of Employment (Information) Act 1994 to such an extent that it would be unjust for the Tribunal to exercise its jurisdiction ordering the employer to award compensation to the employee.
The Tribunal invited the legal representative for the employee to make a submission on whether the employee had been prejudiced by any of the breaches alleged but the legal representative declined on the basis that prejudice was not a requirement in order that compensation be awarded. The Tribunal notes the case of Archbold v CMC (Ireland) Ltd TE05/2003 where a division of the Tribunal held that money payable under the Act did not "equate to loss of remuneration" but was "in the nature of compensation" and accordingly, the Tribunal was entitled to determine what payment was just and equitable in all the circumstances (not exceeding four weeks remuneration) including whether a claimant was "unduly prejudiced" by the failure of the employer to provide the written statement of terms and conditions of employment.
The Tribunal determines that the appeal under the Terms of Employment (Information) Act 1994 fails and the Tribunal sets aside the determination of the Rights Commissioner dated 31st August 2012.
Sealed with the Seal of the
Employment Appeals Tribunal