ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014960
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: 08/08/2018
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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.
The complainant commenced employment with the respondent as an Apprentice Cabinet Maker on 14 May 2014. The apprenticeship was for a four-year period. The complainant worked in a full-time capacity and was paid €525.00 gross. An issue arose between the parties about future employment around the time of the completion of the apprenticeship period and the complainant’s employment terminated.
Summary of Complainant’s Case:
The complainant’s 4-year apprenticeship was coming to an end and he texted one of the Directors asking what his wages would be on qualification.
The complainant received a P45 Form in work.
The complainant understood from a discussion with another Director that he would be required to work for cash for a period of four weeks and that his job would still exist after that. The complainant was told that the respondent could not afford to pay redundancy.
The complainant objected to this proposal and believed that he had been dismissed by virtue of being issued with the P45 Form.
Summary of Respondent’s Case:
The Unfair Dismissals Act does not apply to apprentices who are dismissed within one month of the completion of their apprenticeship.
Without prejudice to the above position the complainant was not dismissed but resigned. There is no basis to a claim of constructive dismissal nor is there a basis for a claim in relation to minimum notice.
The complainant sought a pay rise following the completion of his apprenticeship and this request would have been considered by the respondent.
The complainant did not raise his concerns internally prior to his resignation.
Findings and Conclusions:
These complaints were heard in conjunction with a complaint under the Redundancy Payments Acts contained in ADJ-00015430.
Complaint No. CA-00019508-001:
A number of preliminary issues arise in relation to this complaint. It is accepted by both parties that the complainant was an apprentice. The date for the commencement of this apprenticeship was 14 May 2014 as certified by the relevant Education & Training Board which now has responsibility for such matters. In a circular issued to employers in September 2012, FAS advised that the date of completion of the apprenticeships would in future be the date when the FAS Results Approval Panel approves that the apprentice has successfully achieved the required qualifying standard and that the employer would be notified accordingly. The respondent argued that the complainant had advised them that his apprenticeship had commenced on 14 May 2014 and, being a four-year apprenticeship, that it had consequently ended on 14 May 2018. I also note that the complainant himself had earlier in May sent a text to a director advising that his apprenticeship finished on 14 May 2018. The complainant at the hearing, however, produced a copy of a letter from the Education and Training Board stating that SOLAS had approved the completion of his apprenticeship to the trade of Wood Manufacturing and Finishing with effect from 25 May 2018. Therefore, as a matter of fact, I have to find that the date of completion of the complainant’s apprenticeship was 25 May 2018.
Section 4 of the Unfair Dismissals Act states:
Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to the dismissal of a person who is or was employed under a statutory apprenticeship if the dismissal takes place within 6 months after the commencement of the apprenticeship or within 1 month after the completion of the apprenticeship.
The respondent has argued that this section precludes any claim under the Act being considered in relation to this matter. This is based on the premise that the complainant’s apprenticeship ended on 14 May 2018 and that his employment terminated on 23 May 2018. Having found that the apprenticeship ended on 25 May 2018 it follows that employment that terminated before that date is not covered by Section 4 of the Act.
I note that two P45 forms were issued by the respondent to the complainant. The first one gave a cessation date of 18 May 2018. The second version, which apparently was issued following consultation with Revenue, gives a cessation date of 22 June 2018. I also note that the complainant did not receive a statement of employment from the respondent when he commenced employment but eventually was issued with one in January 2018, apparently after a workplace inspection. In actual evidence at the hearing the complainant stated that his last day of employment was 23 May 2018. The complainant further stated that he had a conversation that day with one of the directors who informed him that he would be issued with a P45 form that evening, that he would be required to work for cash for a period of four weeks and that his job was still going to be there for him.
A director of the respondent told the hearing that there had been no mention of working for cash but that there was a discussion regarding the complainant’s rate of pay following qualification about which the complainant was unhappy. The director further stated that the respondent had in the past employed apprentices some of whom were given employment after qualification and some of whom were not employed and that this had been explained to the complainant when the issue had been first raised in March 2018. In late May the company was involved in a trade fair at the RDS which the complainant was attending. The complainant sent an email on 22 May regarding his future pay rate and on the following day there was a conversation in this regard. The complainant twice contacted a director by phone on 23 May querying as to when he would receive his P45 and, as a result of this, he was sent his P45 by email that evening.
On the following day, 24 May, there was an exchange of texts between the complainant and a director of the respondent. This would appear to arise from the complainant not making himself available to attend the trade show. The director in the first text says: “I thought you understood what was happening. This is only an administration thing for us. You still have a job here and are needed today.” The complainant replied that he did not agree with what the directors wanted him to do and objected to being given the P45. Further texts were exchanged including one in which the complainant asked the following question: “I just want a straight yes or no that you only want me to do this for 4 weeks…” The director replied: “Yes. 4 weeks.” The texts continued into the evening with the complainant continuing his objections and then stating that as he has been issued with a P45 he should also be paid any money owed to him. The director, for his part, states on several occasions that he would like to meet with the complainant to discuss the situation. Also on 24 May the complainant apparently left in an envelope to the workplace containing a workshop key.
I have carefully considered the evidence and submissions before me. In particular, the exchange of text messages provided insight into the thinking of the parties at that time as they amount to a contemporaneous record. I believe that the parties had conversations commencing in March both about the rate of pay to apply to the complainant after qualification and about an arrangement regarding a changeover to a different contract. I do not believe that there was agreement in respect of either matter. I believe that the respondent’s directors had the intention to terminate the complainant’s existing contract of employment and decided to issue the P45 form, probably in the mistaken belief that the complainant’s apprenticeship had been completed on 14 May 2018. I believe that whilst there was no legal obligation for them to do so, that they wished to employ the complainant under a different contract albeit after a break. As regards the complainant, I accept that he believed that the issuing of a P45 form constituted a dismissal and that he did not wish to enter into an ad-hoc arrangement regarding his employment, particularly one that he considered to be illegal. In the circumstances I do not find that he resigned.
Section 6(1) of the Unfair Dismissals Act, 1977, states:
Subject to the provisions of this section, 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 sufficient grounds justifying the dismissal.
The definition of dismissal includes the following:
(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
Based on the above, I find that the complainant’s existing contract of employment was terminated by the respondent. The date of cessation on the P45 form was backdated to 18 May 2018 while the date of issue was 23 May 2018. In either case it occurred prior to the 25 May 2018, the date that the complainant’s apprenticeship officially was completed and thus, as observed above, is not covered by Section 4 of the Act.
I therefore find that the complainant’s dismissal was an unfair dismissal. I note, however, that the complainant stated in evidence that he had commenced new employment with another employer on 24 May 2018 and that the rate of remuneration is in excess of that applying to the complainant at the time of termination of his contract.
Complaint No. CA-00019508-002:
As a consequence of the decision that the complainant was dismissed by the respondent it follows that the provisions of the Minimum Notice and Terms of Employment Act, 1973, apply. Section 4 of the Act states:
(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.
(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…
As the complainant was in the employment of the respondent for just over 4 years he has an entitlement to 2 weeks’ pay.
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.
Complaint No. CA-00019508-001:
This is a complaint under the Unfair Dismissals Acts, 1977 – 2015. For the reasons stated above I find that the complainant was unfairly dismissed under the provisions of the Act. Section 7(1) of the Act deals with the various options as regards redress and, in that regard, I believe that compensation is the most appropriate redress in this case. I have already noted that the complainant had said that he had secured alternative employment commencing on 24 May at a higher rate of remuneration than that paid by the respondent. I presume that he had been seeking same as a result of uncertainty as regards continuity of employment. In any case, the result was that the complainant did not suffer any financial loss as a result of the dismissal. Subsection (c)(ii) of the above section states:
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 factors into account and having regard to what is just and equitable in all the circumstances, I require the respondent to pay to the complainant the sum of €1,000.00 as compensation in this regard.
Complaint No. CA-00019508-002:
This is a complaint under the Minimum Notice and Terms of Employment Act, 1973. I find this complaint to be well founded and require the respondent to pay to the complainant the sum of €1,050.00 as compensation in this regard.
Workplace Relations Commission Adjudication Officer: Joe Donnelly