ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008219
An Area Manager
A Fast Food Chain
The Complainant did not attend or was not represented at the Hearing
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 21/03/2019
Workplace Relations Commission Adjudication Officer: Enda Murphy
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
A complaint was received by the Director General of the Workplace Relations Commission by the Complainant on 23 April, 2017 alleging that his employer contravened the provisions of the Organisation of Working Time Act, 1997 in relation to him. A hearing for that purpose was scheduled by the WRC to be held on the following dates, namely: 10 October, 2017, 1 November, 2017, 21 February, 2018, 11 September, 2018 and 21 March, 2019. The Complainant was granted postponements on medical grounds of the hearings that were scheduled to be held on 1 November, 2017, 21 February, 2018 and 11 September, 2018. The Complainant upon making the applications for postponement of the hearings on these dates requested that the rescheduling of the hearing be deferred for extended periods of time in order to facilitate his medical condition. The WRC acceded to the Complainant’s request in this regard and periods of approx. six months were allowed between hearings when arranging the subsequent dates.
Following the postponement of the hearing on 11 September, 2018, the WRC wrote to the parties on 28 January, 2019 and notified them that a further hearing date was being scheduled for 21 March, 2019. The WRC Secretariat informed the Complainant in this letter, on the instructions of the Adjudication Officer, that the WRC’s Adjudication Service is bound by the principle of natural justice which means that it is obliged to ensure fairness for both parties in its procedures. It was noted in this letter that the Complainant had already been granted three postponements of the hearing in relation to these complaints, and in the circumstances, the hearing date of 21 March, 2019 was peremptory against him and that any further applications for a postponement by him could not be granted. The Complainant failed to attend the hearing on 21 March, 2019.
The Complainant was employed by the Respondent from 20 October, 2003 to 6 December, 2016 and was working in the position of Area Manager when his employment was terminated. The Complainant claims that he did not receive his statutory notice entitlements contrary to the Minimum Notice and Terms of Employment Act, 1973 on the termination of his employment.
The Respondent disputes the claim and contends that the Complainant signed a severance agreement and has compromised his right to refer a complaint to the WRC under the said enactment on the basis of the waiver which he signed upon the termination of his employment.
Summary of Complainant’s Case:
The Complainant failed to attend the hearing on 21 March, 2019 to provide evidence in support of the complaint under the Minimum Notice and Terms of Employment Act, 1973.
Summary of Respondent’s Case:
The Respondent’s solicitor and a number of the company’s witnesses were in attendance at the hearing venue on 21 March, 2019 and were ready to provide evidence in relation to the complaint.
The Respondent’s solicitor confirmed that his client strongly opposed the application for a further postponement of the hearing and made the following submissions in support of its position on this matter:
· The instant proceedings were initiated by the Complainant on 23 April, 2017 and the WRC in compliance with fair procedures is obliged to ensure that the matter be dealt with in a timely manner. The Complainant has already been afforded three postponements on medical grounds of hearing dates which have been scheduled by the WRC in relation to this complaint. The Respondent does not accept the veracity of the Complainant’s claims that he is unable to attend a hearing on medical grounds and submits that he is deliberately attempting to frustrate the WRC’s attempts to determine the proceedings by seeking repeated postponements in relation to the hearing of this matter and that his actions amount to an abuse of process.
· The Respondent is aware that the Complainant is currently employed by, and working as a Director of Operations, for a company which operates a restaurant under a franchise agreement with the Respondent. In this regard, the Complainant sent an e-mail to the Respondent in the course of his duties with his current employer as recently as 12 March, 2019. In the circumstances, it would appear that the Complainant is currently fit for work which is not consistent with his claim that he is unfit to attend the hearing on medical grounds.
· The Respondent and its solicitor have incurred considerable expenses and costs in attending the hearing on 21 March, 2019 and should the WRC be disposed to granting the latest postponement request it should only be countenanced on the proviso that the Complainant be required to reimburse the expenses incurred by the Respondent in relation to its attendance at the hearing on the aforementioned date.
· This is the second occasion that the Respondent has incurred the cost of attending at the hearing only for the matter to be subsequently postponed at the request of the Complainant. The Respondent attended at the hearing venue on the previous occasion that the complaint was scheduled for hearing (namely, 11 September, 2018) when the Complainant also failed to attend. However, the Respondent was later informed by the WRC that an application for a postponement, which had been submitted by the Complainant on 7 September, 2018 and through inadvertence had not been processed prior to the hearing, was being granted retrospectively.
· The hearing notification letter (for the hearing on 21 March, 2019) which was sent to the Complainant on 28 January, 2019 clearly states that postponements will only be granted in exceptional circumstances and applications for postponements should be made in writing to the Commission’s Adjudication Services at the earliest possible date. However, the Complainant only sent the latest application for a postponement by e-mail to the WRC at 16:07 on 20 March, 2019. Therefore, the application for postponement was not made in a timely manner and amounts to a further attempt to frustrate attempts to dispose of the instant proceedings.
Findings and Conclusions:
This complaint was scheduled for hearing on 21 March, 2019 at 10.00 am. I note that the Complainant has already been granted three postponements of the hearing on medical grounds prior to the most recent hearing date on 21 March, 2019.
The Complainant was not in attendance at the hearing venue at the scheduled starting time on 21 March, 2019 so I deferred the start of the hearing by 20 minutes in the event that the Complainant had been delayed. During this time, I also contacted the WRC Secretariat by telephone to enquire if the Complainant had been in contact to indicate that he would not be in attendance. Following enquiries by the WRC Secretariat, I was informed that the Complainant had submitted an application for postponement of the hearing by e-mail on 20 March, 2019 (this e-mail was received by the WRC at 16:09 on this date). This e-mail had not been brought to my attention prior to the scheduled starting time of the hearing on 21 March, 2019.
I reconvened the hearing at 10:20 am and brought this matter to the attention of the Respondent and I afforded the Respondent’s solicitor the opportunity to make submissions in respect of the Complainant’s latest application for a postponement. The Respondent strenuously opposed this application and its submissions in relation to this matter are set out above.
Having carefully considered this matter, I have decided not to accede to the Complainant’s latest application for a postponement of the hearing in relation to this complaint. In arriving at my decision in this matter, I have taken the following points into consideration:
· The instant complaint was referred to the WRC on 18 January, 2017 and I am satisfied that the WRC has made all reasonable attempts to proceed with the complaint in a timely and efficient manner. The Complainant has already been afforded three postponements of the hearing in relation to this complaint. The WRC has deferred the rescheduling of the hearing for significant periods of time on a number of occasions to facilitate the Complainant’s attendance. However, the Complainant continues to seek postponements and has not made himself available to attend a hearing.
· Article 6 of the European Convention on Human Rights provides that a person is entitled to have their civil rights determined within a reasonable timeframe by an independent and impartial tribunal. In this regard, the WRC’s Adjudication Service is obliged to adhere to the principles of natural justice which means that it must ensure fairness for both parties in relation to its procedures. I am satisfied that if the WRC was to grant any further postponements on the basis of the prevailing circumstances in this case, it may be construed as an infringement upon the Respondent’s rights to have this matter determined within a reasonable timeframe.
· The Complainant was informed by the WRC by letter dated 28 January, 2019 (after he had been granted the third postponement) that a further hearing date was being scheduled for 21 March, 2019. The WRC Secretariat informed the Complainant in this letter, on my instructions, and having regard to the WRC’s obligation to ensure procedural fairness, that the hearing date of 21 March, 2019 was peremptory against him and that any further applications for a postponement by him could not be granted. However, the Complainant failed to raise any issue about his inability to attend the hearing on this date until 16:07 on 20 March, 2019 (being the day prior to the hearing). I find that this was unreasonable in the circumstances.
· The Respondent adduced evidence in support of its contention that the Complainant has commenced employment with another firm since May, 2017 and has been in attendance at work in this capacity as recently as 12 March, 2019. In the circumstances, I am satisfied that it is not unreasonable to conclude that the Complainant does not wish to attend a hearing in relation to this matter and that the manner in which he has proceeded with this complaint heretofore has been intended to frustrate the WRC’s attempts to determine the complaint in a timely manner.
Having regard to the foregoing, I am satisfied that the WRC has made all reasonable attempts to proceed with the determination of this complaint in a timely and efficient manner. I find that the Complainant’s failure to attend the hearing on 21 March, 2019 in the circumstances to be unreasonable. In these circumstances and in the absence of any evidence to the contrary having been adduced before me, I must conclude that the complaint under the Minimum Notice and Terms of Employment Act, 1973 is not well-founded and I decide accordingly.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I conclude that the complaint under the Minimum Notice and Terms of Employment Act, 1973 is not well-founded and I decide accordingly.
Dated: March 26th 2019
Workplace Relations Commission Adjudication Officer: Enda Murphy
Minimum Notice and Terms of Employment Act, 1973 – Complainant’s Failure to Attend the Hearing - Postponement Application – Complaint not well founded