ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003761
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 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 26/10/2016
Workplace Relations Commission Adjudication Officer: Shay Henry
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, and section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Attendance at Hearing:
A Store manager
Complainant’s Submission and Presentation:
The claimant was approached by the respondent to become Store Manager and commenced employment on 5th January 2015 on a salary of €39,133 p.a. He was never issued with a contract of employment despite numerous requests. On 1st February 2016 he received an email from the two owners, Ms CS and her husband Mr MS advising that his salary was being cut to €30k p.a. due to lack of performance. No previous mention had been made of his performance or of any trading difficulties. No disciplinary meetings had taken place. No mention was made in this email of any trading difficulties and the respondent was relying solely on poor performance to justify the reduction.
On 8th March the complainant’s solicitor wrote to the respondent objecting to this fundamental change in his contract and as a result his salary was reinstated and arrears paid to him. On 7th April the claimant received a letter from Mr MS stating that due to trading difficulties it was necessary to terminate his employment with immediate effect. During his period as Store Manager the claimant oversaw and improved turnover by approx. €44k.
The claimant sourced alternative employment in August 2016 at a reduced salary of €25k p.a.
Respondent’s Submission and Presentation:
The respondent concedes the claim in relation to the Terms of Employment (Information) Act 1994.
In relation to the unfair dismissals claim, the respondent disputes the facts and points out that the figures before the adjudicator are those of the claimant and that the respondent’s accountant is at present doing the 2015 returns. Secondly, Mr MS is not in attendance and would be in a better position to address some of the issues. For these reasons the respondent seeks an adjournment. In the event that an adjournment is not granted the respondent denies that the claimant was unfairly dismissed and has no further submission to make.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the requirements of that Act.
Issues for Decision:
Whether the complainant has been unfairly dismissed and, if so, the appropriate remedy.
Whether there have been infringements of the Terms of Employment (Information) Act, 1994 and, if so, the appropriate remedy.
Legislation involved and requirements of legislation:
Section 1 of the Unfair Dismissals Act 1977 defines a dismissal 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,
Section 6 (6) of the Act states;
(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal
The burden is therefore on the employer to demonstrate that the dismissal is fair.
Section 3 of the Terms of Employment (Information) Act 1994 requires an employer, not later than 2 months after the commencement of an employee's employment with the employer, to give or cause to be given to the employee a statement in writing containing the particulars of the terms of the employee's employment.
The respondent requested an adjournment on two grounds; firstly in order to have access to the accounts of the enterprise for 2015 and; secondly, so the second owner Mr MS might attend. No request was received prior to the hearing for an adjournment. The basis on which the complainant was dismissed was given as trading difficulties. If there were in fact trading difficulties that required the termination of the complainant’s employment then it is reasonable to expect that these would have been backed up by some evidence already in the respondent’s possession and there would be no reason to await the audited accounts. Mr MS is a co-owner of the business. His attendance therefore was a matter for the respondent to arrange. Accordingly, no adjournment can be granted.
The burden of proof rests on the respondent to show that the dismissal was not unfair. The communication from the respondent to the claimant terminating the employment gave difficult trading conditions as the reason for the dismissal. At the hearing the respondent was unable to provide any evidence of difficult trading conditions. I therefore conclude that the complainant was unfairly dismissed.
At the hearing the respondent acknowledged the breach of Section 3 of the Terms of Employment (Information) Act 1994.
I have investigated the above complainant and make the following decision in accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:
The Complainant was unfairly dismissed
In accordance with s.7 of the Act, I order the Respondent to pay the Complainant:
The sum of € 20,000 (the equivalent of 26 weeks’ pay) in compensation.
The respondent has not fulfilled the requirements of Section 3 of the Terms of Employment (Information) Act, 1994.
In accordance with Section 7 of the Terms of Employment (Information) Act, 1994 I order the Respondent to pay Complainant :
The sum of €500 in compensation.
The total award is redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.
Dated: 9th December 2016