ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012053
Parties:
| Complainant | Respondent |
Anonymised Parties | A Driver | A Bakery |
Representatives |
| Solicitors |
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-00016002-001 | 26/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00016002-002 | 26/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016002-003 | 26/11/2017 |
Date of Adjudication Hearing: 14/02/2018
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and 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:
The complainant commenced employment on 28th October 2013 and his employment was terminated by the respondent on 17th November 2017. His weekly earnings were €400 gross. The complainant claims that he was unfairly dismissed, that he is owed pay and that he was not given his minimum notice. |
Summary of Respondent’s Case: CA-00016002-001
The respondent advised that the complainant had received a contract of employment and was engaged as a relief driver to cover for other drivers.
It was detailed that there had been problems with the complainant including 3 incidences whereby the complainant had been smoking in the van which was a breach of company procedures and as a result of which the complainant had been given verbal warnings dated 6th March 2017, 29th October 2017 and 5th November 2017. The complainant did not accept these warnings and so they were not signed by him but signed by a witness. The respondent had also reason to believe that the complainant had falsified documentation and had been involved in an accident with the respondent’s van.
The respondent did not know the complainant was on leave and was shocked that he had taken leave without the authorisation of the respondent. There are forms available that employees must complete when requesting leave but the complainant did not complete these.
The respondent confirmed that he had phoned the complainant on 15 November 2017 when he found out he had taken leave and told him if he was not back the following day his employment would be terminated. He confirmed this to the complainant by text and later in writing and accepted that while the letter mentions an appeal process, the reality is that there is no appeals process as he has the final say.
During the hearing, he objected to the complainant’s interpreter and detailed that the interpreter was not directly translating the complainant’s response.
In response to correspondence received after the hearing from the complainant, the respondent expressed surprise at the complainant’s request for compensation and outlined again that the complainant had falsified documentation. |
Summary of Complainant’s Case: CA-00016002-001
The complainant attended with his own interpreter. He outlined that he was a driver and that he did not have a specific route but did the routes assigned to him when other drivers had days off.
He detailed that he had approximately 21 days annual leave but there was flexibility with taking other days off as long as the routes were covered. He detailed that he made arrangements with his employer that he would be on away from 12th November until 16 November 2017 to return to Poland but that while on leave the respondent phoned him and was abusive and told him to come back earlier.
After this telephone conversation, he received a text message from the respondent on 15th November 2017 which detailed: “you had better get a ticket for today but if you are not at work tomorrow you are losing it”. This was followed by a missed call on Thursday 16th November 2017 and another text message on Friday 17th November 2017 stating “call me back important”. He went into the respondent’s premises on 19th November and it was confirmed to him by the respondent in a letter that his employment was terminated. He was given no opportunity to explain things, was not afforded the opportunity to have anybody represent him and was not given the right of reply. The decision was made without any consideration of his years of service.
He secured employment on 27th November 2017 on a higher rate of pay than the respondent paid him but detailed that the work is a lot more labour intensive and he has to work shift and the employment is temporary.
Additional information was forwarded following the hearing in relation to pay and his recently secured employment. |
Findings and Conclusions:
Early on in the hearing, the respondent raised concerns that the complainant’s interpreter was not translating the complainant’s direct response. The interpreter disputed the respondent’s claim and was reminded of the importance of translating directly the complainant’s response and agreed to do so.
The main facts of the dismissal do not appear to be in dispute. The complainant went on leave, the respondent details he was not aware of this and was annoyed by this and advised the complainant that his employment was terminated.
Pursuant to Section 6 of the Unfair Dismissals Act 1997 as amended, the dismissal of an employee shall be deemed for the purposes of this Act to be an unfair dismissal unless, having regard to all the circumstances, there are substantial grounds justifying the dismissal. The burden of proof is firmly on the Respondent.
I must consider my function in the case of alleged misconduct which has been well established and is set out in Looney & Co. Ltd. v. Looney (UD 843/1984): “It is not for (me) to seek to establish the guilt or innocence of the claimant, nor is it for (me) to indicate or consider whether (I), in the employer’s position, would have acted as (the respondent) did in his investigation, or concluded as he did or decided as he did, as to do so would substitute (my) mind and decision for that of the employer. (My) responsibility is to consider against the facts what a reasonable employer in (the respondent’s) position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.” Thus, I am not here to seek to establish nor does it establish that the employee is guilty or innocent of the alleged wrongdoing. And further, I must not substitute my decision for that of the employer but must ask if a reasonable employer in the similar circumstances to those facing the respondent would have dismissed the employee. The reasonable employer test is satisfied if
(Noritake (Irl.) Ltd v Kenna (UD 88/1983). The respondent believed that the complainant had taken unauthorised annual leave when he failed to show up for work. There does not appear to have been a defined procedure in place with regards to taking leave. It was also confirmed that no investigation was conducted to hear the complainant’s version of events and no reasonable appeal was provided to the complainant detailed by the respondent during his direct evidence. Given that the complainant was out of the country, it would have been unreasonable to expect the complainant to make the trip back to Ireland the following day.
The requirement for fair procedures and a fair hearing has been reinforced in Gallagher v Revenue Commissioners [1995] E.L.R. 108 (No.2) [1995] which details that thecomplainant wasentitled to fair procedures and a fair hearing. Furthermore, the respondent also admitted that a previous accident involving the company’s van influenced his decision as well as allegations of falsification of company records but this was never put to the complainant. Thus, there was no application of the principles of natural justice detailed in C. v. The Mid-Western Health Board [2000] ELR 38 whereby the complainant had the right to know the full case against him. Ultimately,where “the principles of natural justice were not complied with” the decision to dismiss has been deemed unfair as determined in Vitalie Vet V Kilsaran Concrete, Kilsaran International Ltd [2016] 27 E.L.R. 237.
Did the employer believe that the employee misconducted himself as alleged? It would appear so based on his texts to the complainants. Did the employer, therefore, have “reasonable grounds to sustain the belief? I believe because of the failure on the part of the respondent to ensure that the laws of natural justice were applied in terms of: making the complainant aware of the allegations against him; affording him the right to have somebody attend with him, weighing up all the evidence against him as well as not allowing the other alleged accident or allegations of falsification of documents, influence their decision unless they were willing to present those allegations to the complainant - would not indicate reasonable grounds to sustain the belief.
Having considered the written and oral submissions of the parties, and applying the reasonable test, I find that the dismissal was unfair. Based on the all evidence, including that the complainant secured alternative employment approximately 10 days after the dismissal, I regard compensation as the most appropriate remedy and as per Section 7 I am limited in the amount of this compensation which can be awarded. 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances
Taking all circumstances into consideration, I therefore award the complainant €1,600. |
Summary of Complainant’s Case: CA-00016002-002
The complainant outlined that he was owed €406.50 for the period 6th November 2017 – 12th November 2017. |
Summary of Respondent’s Case: CA-00016002-002
The respondent detailed that the complainant was owed €406.50 but that he had failed to pay this due to an error. |
Findings & Conclusions: CA-00016002-002
It was conceded by the respondent that the complainant was entitled to €406.50. Section 5 (6) of the legislation provides: “Where – 1. The total amount of wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or 2. None of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.
The complaint, therefore, is well founded and I hereby require the respondent pay the claimant the amount payable to him of €406.50 gross. |
Summary of Complainant’s Case: CA-00016002-003
The complainant claimed that he was owed two weeks by way of minimum notice as provided for under the legislation |
Summary of Respondent’s Case: CA-00016002-003
The respondent detailed that he did not have an obligation to pay this as he terminated the complainant’s contract because of his failure to inform the respondent that he was going on annual leave. |
Findings & Conclusions: CA-00016002-003
The complainant did not receive any minimum notice. Based on my decision that the dismissal was unfair, I find that the Complainant was entitled to receive minimum notice when his employment was terminated. Section 4 (2) details that: (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— ( 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,
Based on the above, service I find that the complainant is entitled to 2 weeks’ pay amounting to €800.00. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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-00016002-001 I find the dismissal unfair and I order the Respondent to pay the Complainant the sum of €1,600 for the unfair dismissal. CA-00016002-002 I find and declare that the complaint is well founded and it is upheld and the Complainant is entitled to be paid €406.50 gross. CA-00016002-003 I find that the complaint is well founded and it is upheld and the complainant is entitled to 2 weeks’ pay amounting to €800.00
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Dated: 01.05.2018
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Unfair dismissal, minimum notice, payment of wages |