CORRECTION ORDER
ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997
This Order corrects the original Decision ADJ-00029714 issued on 03/01/2023 and should be read in conjunction with that Decision.
The Complainant contacted the WRC stating an omission of the Respondent named in the original decision, supporting evidence was received with a request to amend the name. Comments were sought from the Respondent. I am satisfied that that there was an omission in the original decision, the correct legal entity is now named.
As the deciding Adjudication Officer has ceased to provide a service to the WRC, following referral from the Director General I have issued this Correction Order.
Workplace Relations Commission Adjudication Officer: Natalie Dawson
Adjudication Reference: ADJ-00029714
Parties:
| Complainant | Respondent |
Parties | David Kinsella | CME Industrial Specialist Limited |
Representatives | Self-represented | Self-represented |
Complaint:
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-00039859-001 | 15/09/2020 |
Date of Adjudication Hearing: 19/04/2022
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 15th September 2020, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Act. The complaint was scheduled for adjudication and following an adjournment, this took place on the 19th April 2022.
The complainant attended the hearing and Roger Smith, director attended for the respondent. The hearing was held remotely.
In accordance with section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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.
Background:
The complainant commenced employment with the respondent on the 28th May 2018 and was paid €750 per week. The parties disagreed as to the circumstances around the ending of the employment. |
Summary of Complainant’s Case:
The complainant gave evidence under affirmation and replied to the submissions and evidence of the respondent. He went on lay-off on the 27th March 2020 and was not called back to work. He denied resigning on the 9th April 2020. |
Summary of Respondent’s Case:
The respondent outlined that the complainant resigned from his employment on the 9th April after an angry phone call. This was when he left the work Whatsapp group. The respondent referred to the email of the 9th April which states that the complainant’s last date of employment was the 27th March 2020. |
Findings and Conclusions:
I note the background tax issue to this case. The complainant outlined that he was not registered for tax correctly by the respondent, something the respondent does not accept. This tax issue is not a matter for the Workplace Relations Commission to decide. What is in dispute and within the jurisdiction of the Workplace Relations Commission is whether the complainant resigned his employment or whether he was effectively dismissed by the respondent. Arising from the Covid-19 pandemic, the complainant went on lay-off on the 27th March 2020. I note that the respondent was designated an essential service and partly remained open. Staff had the option of coming into work and the complainant went on the Pandemic Unemployment Payment. The complainant left possessions in the respondent site, for example a drill and tools. The parties agree that there was a heated phone call on the 9th April, where the complainant raised the tax issues. The respondent interpreted the phone call as the complainant resigning from his employment. Having considered the evidence, I find that the complainant did not terminate his employment on the 9th April 2020. He raised the tax issues and later left the Whatsapp group. I do not draw an inference that leaving the Whatsapp group meant leaving his employment. While the phone call was difficult, it was not clear that the complainant intended to resign. The fact of tools being left in the respondent site is a strong indication that the complainant did not resign. The complainant was on lay-off and leaving the tools on-site is indicative of the complainant believing that he was still on lay-off. He collected the items on the 5th June 2020. I also note that the respondent email of the 9th April 2020 refers to the complainant’s employment ending on the 27th March 2020, but this was clearly a reference to his last attending work and going on lay-off. While this email refers to the phone call of that day and the tax issue, the email does not confirm the complainant’s resignation of that date. Instead, it refers to the commencement of lay-off. On balance, I find that the complainant was dismissed by the respondent when he was not called back to work when the site fully re-opened in the summer of 2020. I find, therefore, that this was an unfair dismissal as there were no substantive grounds for the dismissal. In respect of redress, I note that the complainant found alternative employment on the 18th June 2020 and was paid €570 per week net. His remuneration improved over time, and he was on a higher rate of pay as of the adjudication. The complainant incurred financial loss attributable to the dismissal and I find that the complainant is entitled to compensation of €4,000. |
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.
I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant compensation of €4,000. |
Dated: 3rd January 2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Unfair Dismissals Act / fact of dismissal in dispute |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029714
Parties:
| Complainant | Respondent |
Parties | David Kinsella | CME Industrial Ltd |
Representatives | Self-represented | Self-represented |
Complaint:
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-00039859-001 | 15/09/2020 |
Date of Adjudication Hearing: 19/04/2022
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 15th September 2020, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Act. The complaint was scheduled for adjudication and following an adjournment, this took place on the 19th April 2022.
The complainant attended the hearing and Roger Smith, director attended for the respondent. The hearing was held remotely.
In accordance with section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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.
Background:
The complainant commenced employment with the respondent on the 28th May 2018 and was paid €750 per week. The parties disagreed as to the circumstances around the ending of the employment. |
Summary of Complainant’s Case:
The complainant gave evidence under affirmation and replied to the submissions and evidence of the respondent. He went on lay-off on the 27th March 2020 and was not called back to work. He denied resigning on the 9th April 2020. |
Summary of Respondent’s Case:
The respondent outlined that the complainant resigned from his employment on the 9th April after an angry phone call. This was when he left the work Whatsapp group. The respondent referred to the email of the 9th April which states that the complainant’s last date of employment was the 27th March 2020. |
Findings and Conclusions:
I note the background tax issue to this case. The complainant outlined that he was not registered for tax correctly by the respondent, something the respondent does not accept. This tax issue is not a matter for the Workplace Relations Commission to decide. What is in dispute and within the jurisdiction of the Workplace Relations Commission is whether the complainant resigned his employment or whether he was effectively dismissed by the respondent. Arising from the Covid-19 pandemic, the complainant went on lay-off on the 27th March 2020. I note that the respondent was designated an essential service and partly remained open. Staff had the option of coming into work and the complainant went on the Pandemic Unemployment Payment. The complainant left possessions in the respondent site, for example a drill and tools. The parties agree that there was a heated phone call on the 9th April, where the complainant raised the tax issues. The respondent interpreted the phone call as the complainant resigning from his employment. Having considered the evidence, I find that the complainant did not terminate his employment on the 9th April 2020. He raised the tax issues and later left the Whatsapp group. I do not draw an inference that leaving the Whatsapp group meant leaving his employment. While the phone call was difficult, it was not clear that the complainant intended to resign. The fact of tools being left in the respondent site is a strong indication that the complainant did not resign. The complainant was on lay-off and leaving the tools on-site is indicative of the complainant believing that he was still on lay-off. He collected the items on the 5th June 2020. I also note that the respondent email of the 9th April 2020 refers to the complainant’s employment ending on the 27th March 2020, but this was clearly a reference to his last attending work and going on lay-off. While this email refers to the phone call of that day and the tax issue, the email does not confirm the complainant’s resignation of that date. Instead, it refers to the commencement of lay-off. On balance, I find that the complainant was dismissed by the respondent when he was not called back to work when the site fully re-opened in the summer of 2020. I find, therefore, that this was an unfair dismissal as there were no substantive grounds for the dismissal. In respect of redress, I note that the complainant found alternative employment on the 18th June 2020 and was paid €570 per week net. His remuneration improved over time, and he was on a higher rate of pay as of the adjudication. The complainant incurred financial loss attributable to the dismissal and I find that the complainant is entitled to compensation of €4,000. |
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.
I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant compensation of €4,000. |
Dated: 3rd January 2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Unfair Dismissals Act / fact of dismissal in dispute |