ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001199
Complaint(s)/Dispute(s) for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 17/11/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977 and or Section 11 of the Minimum Notice & Terms of Employment Act, 1973 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
CA 00001572-001 I returned from a period of sick leave ( 6/10/2014 to 9/11/2015) and contacted my employer. I did not get any response and when I came to the office ,Mr. ZX, the owner, asked why did I take a case for personal injuries against the employer and later told me that that they do not need people like me. I was Dismissed at a meeting on the 9th November with the Respondent in his office.
CA-00001572-002 I was dismissed and did not get any notice period of payment in lieu.
Summary Respondent’s Submission and Presentation:
Opening Legal Point – Time Limits
The Complaint was filed with the WRC on the 18th December 2015 – almost 14 months after the Complainant’s last day in actual physical work – the 6th October 2014. This actual date of physical presence at work was accepted by both parties.
The Respondent resolutely asserted that the Complainant had effectively absented himself on sick leave with no further contact with the Respondent until the 9th November 2015.
The Respondent had allowed some considerable time to elapse but had terminated the employment of the Complainant with effect from the 1st January 2015. Effectively the Respondent had taken the view that the Complainant had, in essence, abandoned his employment.
Accordingly the Complaint is out of time and no valid reasons have been proffered to warrant the Adjudication officer granting a further time extension.
Should the Time Limits point above not be accepted by the Adjudication Officer the evidence of the Respondent and their submission asserted that the Complainant had effectively abandoned his employment on the 6th October 2014 and had made no contact with his employer, had not submitted medical certificates and made no contact what so ever with his employer. It was perfectly reasonable for the Respondent to recognise this fact and remove the Complainant from his employment at the end of the year –i.e. 1st January 2015.
Section 41(4) of the Workplace Relations Act 2015 and or Section 11 of the Minimum Notice & Terms of Employment Act, 1973 require that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under these Acts.
Section 8(1B) of the Unfair Dismissals Act, 1977 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.
Issues for Decision:
Preliminary Time Limits – Is this case in Time?
If Yes than has a well-founded claim for Unfair Dismissal been established?
If Yes on the Time Limits issue is there a well-founded claim under the Minimum Notice & Terms of Employment Act, 1973 ?
Legislation involved and requirements of legislation:
Unfair Dismissals Act, 1977 with guidance from S.I. 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures.
Minimum Notice & Terms of Employment Act, 1973
It was accepted by all parties that the Complainant’s last physical day with the Respondent was the 6th October 2014. The Respondent maintained that he had not received any communications or importantly sick certificates from the Complainant since that date. The Complainant maintained that he had sent the Certificates to the employer via “colleagues”. The Respondent maintained that the Certs would have been logged in the office of the Respondent had they been received.
The Responded has a good number of Polish employees on his staff and he maintained that none of these Polish staff had every mentioned anything to him or his son, effectively a Senior Manager, in the Business, regarding the Complainant. I questioned him closely at the hearing on this point. The Respondent was confident that if anything of note or a misfortune had happened to the Complainant the Polish “Grapevine” would have had it and he would have been informed.
No grapevine news came to him via the Polish staff and as far as he could see the Complainant had simply gone away more than likely back to Poland.
The Complainant, in oral evidence, through his Solicitor and the Interpreter was vague in reason for his lack of Contact in late 2014 and early 2015. He maintained at one stage that his former colleagues, who might give evidence in support of handing in the Sick Certs, were afraid of the Respondent and did not wish to get involved in his case.
Having reviewed all the evidence both written and oral I came to the view that the Respondent should have made more exhaustive inquiries, sent registered letters to last know addresses and actively sought the informal assistance of other Polish employees prior to making his alleged dismissal decision of the 1st January 2015. There was no correspondence produced in evidence, no final letters confirming termination by a certain date if no reply was received, no opportunity of an appeal or representation was offered -in fact no efforts seemed to have been made to establish the whereabouts or the status of the employee. The alleged issuing of a P45 dated the 1st January 2015 cannot equate to a proper ending of an employment relationship.
I accordingly took the formal date of confirmed dismissal as the 9th November 2015, the first meeting between the parties since October 2014, and the claim is in time.
Taking all the evidence, both oral and written produced I find that the claim for Unfair Dismissal is well founded. No procedures of any nature were followed.
However in mitigation for the Respondent the first contact the Complaint made with the Respondent in approximately 9 months was the Personal Injuries letter from his legal representative on the 5th June 2015 followed by the personal meeting on the 9th November 2015 where he was clearly informed that he had been dismissed – effectively for walking away in October 2014.
A concerned employee would have made early and regular contact with his employer throughout his sick absence period.
Legal Representatives came on record to the Respondent on the 5th June 2015 in relation to a Personal Injuries claim by the Complainant but did not file a WRC claim until 18th December 2015. I could not see in the limited PI paperwork given in evidence any efforts by the Legal Representatives or indeed the Complainant personally to clarify the employer/employee relationship at that stage in June. The legal status of the employee at that time –June 2015 - should have been clarified by the parties or certainly by their legal Representatives.
The Respondent failed to follow proper procedures in relation to an employee on what was effectively long term absence. However the efforts of the Complainant to keep in contact with the Respondent were very haphazard.
I award the Complainant the sum of 26 weeks’ pay (€327.71 average weekly nett pay). (€ 327.71 x 26 = €8,520) reduced by 50% for the contribution of the employee to his dismissal giving a final sum of € 4,260
The minimum notice claim is accordingly valid and I award 4 weeks’ pay = € 327.71 x 4 = €1,310 as a Minimum Notice payment.
Dated: 9th December 2016