ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022430
Parties:
| Complainant | Respondent |
Anonymised Parties | Warehouse Manager | Product Distribution Company |
Representatives | JW O'Donovan Solicitors | Peninsula |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00029105-001 | 14/06/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00029105-002 | 14/06/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00029105-003 | 14/06/2019 |
Date of Adjudication Hearing: 21/10/2019
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
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 complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant alleges that that he left the company premises after a heated discussion with management. He claims that he was subsequently deemed dismissed by the Respondent, which constituted unfair dismissal. The Respondent asserts that the Complainant resigned of his own accord. The Complainant also has a claim for minimum notice as well as for unpaid wages. |
Summary of Respondent’s Case:
Unfair Dismissal This Complainant worked as a warehouse manager for the Respondent and resigned but was not dismissed. The Respondent was issuing contracts to all their employees. All other employees had no difficulty with the contracts, but it appeared that the Complainant did. Ms.X, a director with the Respondent company, issued contracts to all employees and when she did not receive the Complainant’s contract back, she approached him on the warehouse floor to see if he had issues with it. It was submitted that the Complainant repeatedly refuse to engage with Ms. X, despite the fact she was one of his two bosses, saying instead he would only speak to her husband and co-director, Mr Y “man to man”, which, it is submitted, he also didn’t do. Ms X then requested of the Complainant that he put any query in writing and/or highlight it in the contract, so that she could take HR advice in respect of it. It was submitted that the Complainant provided Ms. X with nothing to this effect. It was submitted that Ms X approached the claimant again a few days later, when he had still provided nothing to her to give to HR. Ms. X then said she would inform the Complainant of this and a meeting was organised for the following day, for the three of them i.e. with the Complainant, Ms. X and Mr Y. That meeting took place on May 3rd, 2019. It appears that, in particular, the Complainant took issue with his job description, which it was submitted accurately described the role he had been doing and was required to do; with the discretionary use of a work van which had been provided to accommodate his lack of personal transport and the fact he resided 40km from his job and with the performance-based nature of a performance-based bonus, which he had successfully achieved for a number of years. It was submitted that, at that meeting, on Friday, May 3rd, the Complainant “tendered his resignation” (i.e. quit his job without notice) in the middle of a meeting, by storming off, having thrown his work jacket and the keys to his work van on the table, and having put out his hand to shake his employer’s hand saying: “I’m out of here.” It was further submitted that he informed another employee that he had quit, that same afternoon. It was asserted that the Respondent acted reasonably in inviting the Complainant to put his objections/grievances in writing so that the Respondent could take HR advice in respect of them and the claimant refused to do so. It was submitted that the fact the Complainant resigned without ever engaging in any grievance process, or seeking to do so, and that this proved fatal to his case. Furthermore, it was submitted that the Complainant was given an opportunity to reconsider his resignation, on May 3rd, by Ms X, and declined to do so, simply ignoring her and continuing to walk off. It was denied that a new clock in/clock out app represented more work for him (as per his claim papers) and, in fact, it was asserted that Ms X was the only “admin” on the app and she expressly told the Complainant to inform any employees with queries about it of that fact and to direct them to her. It is asserted that the app reduced the Complainant’s workload rather than increased it. The Complainant’s work had to be covered for the rest of that day (Friday). The Respondent did not hear from the Complainant on Friday, Saturday, Sunday or Monday, at all. Although, the claimant did inform another employee on May 3rd, Mr Z, that he had quit. Several days later, the claimant rang Mr. Z again and attempted to reformulate the contents of the conversation he had had with him, on Friday, May 3rd. 2019. It is submitted that this attempt was a contrivance. It is submitted that first thing on Tuesday morning (it was a bank holiday weekend), HR was informed by the Respondent of the claimant’s resignation. There had been no chance to do it on Friday afternoon because his work had to be covered. Subsequently, on Tuesday, May 7th, at approximately 10.30 am (approx. 2 hours after work started), Mr Y received a text message from the Complainant saying he was going to the doctor. Mr Y did not respond to this, as he had already accepted the Complainant’s resignation. Ms. X subsequently received an email from the Complainant with a medical certificate attached. She responded re-iterating that the Complainant had resigned and that the Respondent had accepted his resignation, several days earlier. The Respondent denies dismissing the Complainant. It is asserted that the claimant resigned his position, which was accepted; And that several days later, the claimant attempted to rescind his resignation and to allege, after resigning that he had medical issues. It is submitted that this is also a contrivance.
Minimum Notice It was submitted that it is the claimant who resigned without notice. In circumstances where an employee quits without notice, the employer does not owe the Complainant notice pay. Payment of Wages In respect of the shortfall of €100 euros alleged, it is accepted having gone through the accounts that there is a discrepancy of €74.58 between January and May, in the claimant’s favour. Direct Evidence of Mr Y Mr Y gave his account of what transpired at the meeting of May 3rd and the aftermath. He told the Complainant that the bonus was performance based which the Complainant disputed and that the Complainant had raised issues about agreed deliveries concerning the Company van and extra hours he had to work. He stated that he and the Complainant had raised their voices and that the meeting was tense and fraught. He stated that he recalled the Complainant saying that “I can’t do this anymore” and also that “I’m gone from XX products” whilst getting up and throwing the van keys on the table. He received an email from the Complainant on the following Tuesday, after a Bank Holiday weekend, stating: “I am not feeling well at the moment. Have doctor’s appointment tomorrow. Will keep you updated.” In cross examination he stated that he never questioned the competence or capability of the Complainant, but he agreed that the purpose of the meeting was to seek the consent of the Complainant to the new contract and iron out any issues he might have. Direct Evidence of Ms X Prior to the meeting of May 3rd, 2019, Ms X said that the Complainant spoke to her about issues with the proposed contract specifically in relation to his wages, minus the bonus, and the company van. She said he preferred to speak with Mr Y, her husband and Director, “man to man”. At the meeting of May 3rd, Ms X said that the Complainant had not written down his issues as requested but raised his issues verbally. She said the Complainant had issue with the term “modify” regarding his duties. He also raised the issue of the bonus not being factored in and the fact that it was performance related. The Complaint also raised issues about the extra time it took for deliveries with the Company van. She said that the Complainant said that he could not do it anymore, that he threw the keys of the van and the company jacket on the table and that he walked out the door. She had repeatedly asked him to calm down. She also followed him through three warehouses stating “are you really going to do this” but that he proceeded to leave the premises. Her next contact with him was when she sent an email to the Complainant on May7th 2019 accepting his resignation. In cross-examination Ms X admitted that the bonus had been paid for the past two years but gave no evidence about how performance was measured or accounted for in the payment. She admitted that she did email the Complainant at 5.59pm that day, approximately 6 hours after the meeting in the office, with details of updated contract terms. She said this was a mistake. She also acknowledged that in a note that was exhibited as a contemporaneous account of the meeting there was no reference to the utilisation of the grievance procedure even though in the Respondent’s submission it is claimed that the Complainant’s failure to do so was fatal to his case. She further acknowledged that in the employee’s handbook it stated in relation to “resignations” that “All resignations must be supplied in writing and stating their reason for resigning.” but she stated that she wasn’t familiar with the handbook. Legal Submissions Failure to Utilise and/or Engage with Any Grievance Procedure, at all. The Respondent refers to the Employment Appeals Tribunal decisions of Conway v Ulster Bank Ltd. (UD 474/1981) (taken from Mary Redmond, Dismissal Law in Ireland, 2nd Edition), where the Tribunal found that the claimant had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints”. It is submitted that the fact the claimant resigned without ever engaging properly in the grievance process also proves fatal to his case. Furthermore, it is submitted that the claimant was given an opportunity to reconsider his resignation and declined.
Reasonability and Proportionality of Employer’s conduct: It is submitted that the Respondent acted reasonably and proportionately in the circumstances of this particular case. The Respondent refers to the following decisions: Looney & Co. Ltd. v Looney UD843/1984, (taken from Mary Redmond, Dismissal Law in Ireland) where the EAT said that it is their responsibility to “consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.” Barry v Precision Software Ltd. (UD 624/2005) [2006] 10 JIEC 1801, where the Tribunal said: “[I]n determining whether the dismissal was unfair or not, section 6(6) of the Unfair Dismissal Act 1977 provides that it will be for the employer to ensure that there were substantial grounds justifying the dismissal… It is not for the Tribunal to intrude into the Respondent's managerial decisions. The Tribunal has to look at what a reasonable employer would do in the circumstances. Neither is it for the Tribunal to consider what sanction it would impose. The Tribunal's function is to decide whether the employer's reaction and sanction came within the range of responses, which a reasonable employer might make” and
Allied Irish Banks Plc v Brian Purcell [2012] 23 E.L.R. 189. In this case Linnane J. reinforced the above stating: “…it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer's view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.” Mitigation Should the Adjudication Officer find that the Complainant was unfairly dismissed, which is denied, the issue of mitigation arises. It is incumbent upon a claimant to seek to mitigate his/her losses as per Section 7(2)(c) of the Act. Coad v Eurobase (UD1138/2013) where the Tribunal noted; “In calculating the level of compensation, the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Co. Ltd. (UD858/1999) that a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.” Notwithstanding the foregoing, the Respondent also refers to the decisions of: Mlynarski -v- Pianos Plus (UD 1294/2008) where the Claimant was awarded no compensation. The Tribunal held that, “…the dismissal of the claimant was procedurally unfair and therefore the dismissal was an unfair dismissal… The Tribunal determines that the claimant was unfairly dismissed … and finds that the claimant’s contribution to his own dismissal is such that the appropriate remedy is an award of compensation in a nil sum.” In the WRC decision of A Beauty Therapist v Beauty Clinic ADJ-00011306 the Adjudicator noted that the dismissal while unfair, the Complainant “contributed 100% to the dismissal and no award of compensation is made.” Most recently, and very significantly, the Labour Court found in Synergy Security Solutions -v- Dusa (UDD1911), in addition to the employee having significantly contributed to his dismissal, the Labour Court awarded a successful claimant nil unfair dismissal compensation on the basis that he has failed to mitigate his loss, saying:
“The Court finds the evidence tendered by the Complainant to the effect that he has been unable to find alternative work in the period since 11 April 2017 to date to be lacking in credibility and cogency. The Complainant is well educated and experienced. He holds a Private Security Authority licence and has a bachelor’s degree in international business. He has good language and communications skills. The Court is aware from its own knowledge that there are many current vacancies in the jobs market, in the security industry and elsewhere, that offer remuneration in or around the level that the Complainant was in receipt of while he was in the Respondent’s employment. In short, the Court is not satisfied that the Complainant has made reasonable efforts to mitigate his loss. For that reason, the Court marks the compensation payable to the Complainant at nil.”
|
Summary of Complainants’ Case:
The Complainant was warehouse manager but was also Operations Manager dealing with customers and placing orders with suppliers. He also had use of the company van as personal transport which he used for delivery of the company’s products whilst on the way home in the evening. He was also the de facto reference person for other employees who had queries in respect of work and other contract issues. He was paid €3,062.50 gross per month; net €2818.76 which gave a gross salary of €36,750 per annum plus a yearly bonus of €6000. In the months prior to his dismissal there were several employee issues because of people leaving and being out sick. This caused enormous pressure on him in terms of hugely increased work demands and significantly longer hours at work. He had sought long term solutions with management, but none were forthcoming. On the 23rd of April 2019 a draft contract of employment was given to him on the warehouse floor. He was told that that the copy given to him would be changed as the use of the of the company van would be deleted from the draft given to him. This was the first contract of employment he had received. He was also concerned with the fact that there was no reference to his annual bonus of €6000 which was paid in two twice yearly tranches. On the same day a new employee handbook had been introduced which caused some consternation with staff, but management did not facilitate a meeting to address these staff concerns. Ms X approached him on May 2nd and indicated a new contract would be issued to him with the removal of the benefit of the van. A meeting was arranged to discuss these issues on the following day. Direct Evidence of the Complainant – Meeting of May 3rd, 2019 and aftermath. In direct evidence the Complainant said that at the outset he set out to clarify matters regarding some of the language in the proposed contract but that the meeting deteriorated into a heated discussion when his performance, working hours, his ability to work and the use of the company van was raised by Mr Y. He felt very intimidated by the attitude of Mr Y and the defence of Mr Y by her husband by Ms. X. He felt confused and all he wanted to do was get out of there. He stood up and because he felt he had to leave the room. Ms X asked him to sit down, which he did but the aggressive behaviour against him continued. Mr Y shouted “Leave the van. I will get someone else to do the deliveries.” He said I couldn’t do this anymore and felt a panic attack coming on. He put the keys on the table and left the room. He walked off the premises in a panicked and confused state. He walked for a few miles in a daze. He was adamant that he did not resign that day. Six hours after the incident he received an email from Ms X with revised contract terms. On Tuesday May 7th, the day after a Bank Holiday Monday, the Complainant contacted his doctor and sent an email to Mr Y to say he was not feeling well, that he had a doctor’s appointment the following day and would update him. Later that day at 1650 on May 7th he received an email from Ms. X to say his resignation had been accepted and thanked him for his work at the company. He sent a replying email at 19.42 denying he had resigned and explaining why he left the meeting on that day. He furthermore sent on a medical certificate on May 8th and sought a reply to his earlier email. He received a replying email later that day from the Respondent re-iterating the position that that he was deemed to have terminated his employment by resignation. Documentary evidence was produced to show that the Complainant had applied for a number of jobs. He remained out sick until July 1st, 2019 and returned to work for a new employer as a warehouse manager from that date. His commencing salary with his new employer was €30,000 per annum, which was €6750.00 less than his previous employment per annum. There was also a loss of a bonus of €6000 p.a. and the use of a company van. Cross Examination of the Complainant. The Complainant accepted that Ms X followed him through 3 warehouses and called him back numerous times. He also denied that he had told a fellow employee that he had resigned from his position. He accepted also that he applied for a new job on May 7th. Payment of Wages The Complainant accepted that the claim for an outstanding payment was for the sum of €74.58 as calculated by the Respondent, and not €100 as originally claimed. Minimum Notice The Complainant submitted that if it is found to be an unfair dismissal, the full terms of the Minimum Notice & Terms of Employment Act, 1973 should be applied which in this case is four weeks’ pay. |
Findings and Conclusions:
The Law In accordance with Section 6(1) the Unfair Dismissals Act, 1977, as amended (The Act): “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”. In addition Section 6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice. On the issue of “heat of the moment” resignations or where events could be construed that there was a resignation, but that circumstances when studied further might suggest otherwise, the Labour Court have given guidance. In Millet v Shinkwin 2004 E.L.R. 319 The Court determined “That where an employee makes a decision to resign which is not fully informed because he/she is not in a position to fully evaluate his/her options or he/she may act on a misinterpretation of something which is said or done and the situation is still retrievable, it would be unreasonable for an employer to deny an employee an opportunity to recant within a reasonable time once the true position becomes clear and such a denial may in the circumstances amount to a dismissal.” The Court in Millet gave further authority, amongst other cases, for coming to its decision in the following account: There is, however, a significant body of authority for the proposition that there are exceptions to this general rule and that there are occasions in which an apparently unconditional and unambiguous resignation may be vitiated by the circumstances in which it is proffered. In Kwik-Fit (GB) Ltd v Lineham [1992] I.R.L.R. 156, the following passage appears at paragraph 31: “If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment, personalities constitute an important consideration. Words may be spoken, or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’) and indeed the intellectual makeup of the individual may be relevant (see Barclay [1983] I.R.L.R. 313). These we refer to as ‘special circumstances. Where ‘special circumstances’ arise, it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the ‘special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively.” There is not so much conflict of evidence in this case as there is a misinterpretation of the meanings of actions and words. There is common case that the Complainant said he had “can’t do this anymore” at the meeting, that he laid the keys on the table and walked off the premises. Both parties agreed that the words “I resign” were not used. The Respondent in evidence viewed this course of action as a resignation whereas the Complainant said he needed to get off the premises for that day only the good of his own health and that he never intended to resign. The first issue to be considered here is whether the Respondent acted reasonably in its dealings with the Complainant at the meeting of May 3rd and in the subsequent days that followed when termination of employment was confirmed. By her own admission Ms X stated that she was unfamiliar with the Employee handbook. Ms. X also acknowledged, when it was brought to her attention at the hearing, that the Respondent’s own requirements in the handbook demand that any resignation must be in writing with accompanying reasons given for the resignation. Furthermore, Ms X admitted that 6 hours after what she believed was the act of resignation, she sent the Complainant a revised contract of employment. There is a reasonable expectation that an employer would become familiar with their own prescribed rules in the employee handbook, specifically with regards to the requirements on resignations. The Respondent failed to do so and did not apply its own rules when dealing with the Complainant. The Respondent also issued a revised contract to the Complainant six hours after what it considered was a termination of employment by resignation. These two fundamental facts suggest that it was it was unreasonable for the Respondent to have interpreted the words and actions of the Complainant on May 3rd as a de facto resignation. The Labour Court in Millet above is clear authority that when ambiguous words are expressed in a heated environment, the employer cannot just assume that someone has resigned even though words and actions could well indicate that such an action was taken. Time must be allowed for the employee to calm down and essentially reconsider. Heated words were exchanged, and both sides agreed that the words “I resign” or “I quit” were not used. The Complainant walked off the job on the day and he should not have done so. He clearly left his employer in the lurch however he gives weighty evidence on his state of mind as an explanation for his actions. He also sought to recant on subsequent days in correspondence. The Respondent chose not to accept the position of the Complainant and instead deemed the Complainant’s contract to be terminated I am again reminded by the Labour Court in Millet where it stated: “…it would be unreasonable for an employer to deny an employee the opportunity to recant within a reasonable time once the true position becomes clear and such a denial may in the circumstances amount to a dismissal.” For all the reasons stated above and upon applying the law to the facts as I found them I deem the Complainant to have been unfairly dismissed by the Respondent and I uphold the complaint of Unfair Dismissal. Mitigation of Loss Section 7(2) of the Act deals with compensation and mitigation of loss. (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, (d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, (e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal….
(3) In this section— “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay. In coming to the award in this case I am taking into account the fact that the Complainant had been out sick from the date of dismissal May 7th, 2019 until July 1st, 2019 when he took up employment at a lesser salary. He had not been available for work in that period, albeit he did furnish applications for work to numerous employers. I conclude, on the balance of probabilities, that this illness period can be attributed to the circumstances surrounding his dismissal. There is prospective loss as the new employment is not on comparable terms, but I am aware also of some contribution the Complainant made to his own dismissal on the day. Having considered all the circumstances of the case I conclude that the claim is well founded, and I award the Complainant €12,000 for Unfair Dismissal.
Payment of Wages It is agreed between the parties that there is an outstanding sum of €74.58 in unpaid wages therefore I find the claim well founded and I award the Complainant €74.58 under section 6 of the Payment of Wages Act, 1991.
Minimum Notice: The minimum period of notice is addressed in section 4 of the Minimum Notice and Terms of Employment Act, 1973 which reads:
(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— (a) if the employee has been in the continuous service of his employer for less than two years, one week, (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, (c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, (d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks, (e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks. (3) The provisions of the First Schedule to this Act shall apply for the purposes of ascertaining the period of service of an employee and whether that service has been continuous. (4) The Minister may by order vary the minimum period of notice specified in subsection (2) of this section. (5) Any provision in a contract of employment, whether made before or after the commencement of this Act, which provides for a period of notice which is less than the period of notice specified in subsection (2) of this section, shall have the effect as if that contract provided for a period of notice in accordance with this section. (6) The Minister may by order amend or revoke an order under this section including this subsection.
In deciding the Adjudication Officer is guided by section 12 of the Act: (1) A decision of an adjudication officer under Section 41 of the Workplace Relations Act, 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention. (2) A decision of an adjudication officer under Section 41 of the Workplace Relations Act, 2015.in relation to a dispute as to the entitlements of an employee under section 6 may include such directions as the adjudication officer considers appropriate.
The intention behind Section 12 is to deal with real and actual loss. The loss sustained must be due to the employer's contravention of the Act. The Labour Court addressed this point in Anglo Beef Processors v Lancu MND187 where it determined that a Complainant, though entitled to notice of termination of employment from his employer, was not, due to illness, ready to work for his employer during that notice period and accordingly had no entitlement to payment in respect of the period of notice. The Complainant in this case was entitled to notice of 4 weeks upon termination of employment from the Respondent but was out sick and not in a position to work that notice period, therefore the loss was attributable to the Complainant and not the Respondent. On this basis I conclude that claim for payment for minimum notice is not well founded. |
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-00029105 -001: I find that the complaint under the Unfair Dismissals Act is well founded and I award the Complainant €12,000 CA-00029105-002: I find the complaint under the Payment of Wages Act,1991 is well founded and I award the Complainant €74.58. CA-00029105-003: I find that the complaint under the Minimum Notice and Terms of Employment Act,1973 is not well founded therefore the complaint fails. |
Dated: 12th December 2019
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Key Words:
Unfair Dismissal, Payment of Wages, Minimum Notice |