ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007829
Parties:
| Complainant | Respondent |
Parties | A Kitchen Assistant | A Butchers and Delicatessen |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00010070-001 | 06/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00010070-002 | 06/03/2017 |
Date of Adjudication Hearing: 28/09/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.
Background:
On 6 March, 2017, the complainant lodged two complaints with the WRC. Both referred to claims for Unfair Dismissal. |
Summary of Complainant’s Case:
CA-00010070-001 The Complainant submitted that she was a kitchen assistant from 10 October 2011 to 8 August 2016. She stated on her complaint form that she worked a 50 hour week. The Complainant claimed Constructive Dismissal from 8 August 2016 and sought the remedy of compensation .She did not submit details of pay. The Complainant submitted that she worked a particular pattern of hours until 2013 when she was asked to alter her start and finish times .She claimed that the effect of this was that she worked for an unpaid half an hour per day .This was rectified from the end of July 2015 to 7 April 2016. The Complainant did not attend the hearing or make any contact with the WRC as to reasons for her non –appearance. CA-00010070-002 The Complainant submitted that she was a kitchen assistant from 10 October 2011 to 8 October, 2016. She stated on her complaint form that she worked a 50 hour week. The Complainant claimed Constructive Dismissal from 8 October, 2016, and sought the remedy of compensation .She did not submit details of pay. The Complainant submitted that she worked a particular pattern of hours until 2013 when she was asked to alter her start and finish times .She claimed that the effect of this was that she worked for an unpaid half an hour per day .This was rectified from the end of July 2015 to 7 April 2016. The Complainant did not attend the hearing or make any contact with the WRC as to reasons for her non –appearance. |
Summary of Respondent’s Case:
CA-00010070-001 The Respondent rejected the claim for Unfair Dismissal. The Company representative submitted that the complainant had not been dismissed and did not tender her resignation as stated. Instead, the Company submitted that the complainant had worked as a kitchen Assistant and had gone on sick leave on 8 April, 2016. She return for a brief period on 23 April and recommenced sick leave on May 3, 2016.Sick notes were submitted until the end of June 2016. The Respondent stated that the complainant had a reported difficulty lifting objects and had submitted a medical report which outlined her in- capacity to lift in excess of 5 kg. The Respondent referred to a copy of a letter from the complainant dated 27 June, 2016, where she requested her P45 .The Respondent gave evidence that they received a phone call from Revenue on July 1, 2016 asking the respondent to transfer the complainant’s tax credits as she had commenced work at a new location.The Company complied with this request . The Complainant was paid her holidays and the P45 was processed. CA-00010070-002 The Respondent rejected the claim for Unfair Dismissal. The Company representative submitted that the complainant had not been dismissed and did not tender her resignation as stated. Instead, the Company submitted that the complainant had worked as a kitchen Assistant and had gone on sick leave on 8 April, 2016. She return for a brief period on 23 April and recommenced sick leave on May 3, 2016.Sick notes were submitted until the end of June, 2016. The Respondent stated that the complainant had a reported difficulty lifting objects and had submitted a medical report which outlined her in- capacity to lift in excess of 5 kg. The Respondent referred to a copy of a letter from the complainant dated 27 June, 2016, where she requested her P45 .The Respondent gave evidence that they received a phone call from Revenue on July 1, 2016 asking the respondent to transfer the complainant’s tax credits as she had commenced work at a new location. The Company complied with this request . The Complainant was paid her holidays and the P45 was processed. |
Findings and Conclusions:
CA-00010070-001 I am satisfied that the Complainant was properly notified of the hearing. I allowed an extended period of time before commencing the hearing, but there was no contact from the complainant in respect of the delay and non appearance. Section 8(2) of the Unfair Dismissals Act 1977-2015 provides that : . (2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 ) to the Director General (a) within the period of 6 months beginning on the date of the relevant dismissal, or (b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause, And a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General. The Complainant did not attend the hearing .I have found that the complaint was lodged outside the statutory time limit, given that date of dismissal was referred to in the complaint form as 8 August 2016. I did not find evidence of a dismissal as defined in Section 1 of the Act .The Complaint fails for want of prosecution and lack of adherence to the strict statutory time limits. CA-00010070-002 I am satisfied that the Complainant was properly notified of the hearing. I allowed an extended period of time before commencing the hearing, but there was no contact from the complainant in respect of the delay and non appearance. The burden of proof in the case of a claim for Constructive Dismissal rests with the complainant. I find that the complainant did not attend the hearing to prosecute her case and the complaint cannot succeed for want of prosecution. |
Decision:Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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. CA-00010070-001 I have found that the claim was lodged outside the statutory time limits and cannot succeed for want of prosecution. CA-00010070-002 I have found that the claim cannot succeed for want of prosecution. |
Dated: 1st December 2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Unfair Dismissal |