ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00039571
Parties:
| Complainant | Respondent |
Parties | Gary Gibbs | Apcoa Parking Ireland Limited |
Representatives |
| Peter Dunlea IBEC |
Complaints:
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-00051165-001 | 14/06/2022 |
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Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00051165-003 | 14/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00051165-004 | 14/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00051165-005 | 14/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00051165-006 | 14/06/2022 |
Date of Adjudication Hearing: 24/05/2023 and 28/05/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal. Gross Misconduct might be considered a substantial reason.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is a positive onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
In addition to the claim for Unfair Dismissal the Complainant also made separate complaint against his Employer alleging that they had contravened relevant sections of the Minimum Notice & Terms of Employment Act, 1973 and the Organisation of Working Time Act, 1997 and the Payment of Wages Act, 1991.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.
This matter was brought to the attention of the WRC by workplace relations complaint form dated the 14th of June 2022.
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Summary of Complainant’s Case:
The Complainant represented himself at the first day of hearing. The Complainant did not attend the second day set aside for this case. I am satisfied that the Complainant was put on notice of the hearing day by letter emailed to the Complainant on the 2nd of April 2025. |
Summary of Respondent’s Case:
The Respondent was represented by IBEC and a number of witnesses presented to give evidence on the first day. The IBEC representative attended alone on the second day. |
Findings and Conclusions:
It is noted that in the aftermath of the hearing held on the 24th of May 2023 an email was sent to both parties by the Adjudicator which read as follows:- Good afternoon Gentlemen. I refer to the hearing of the above entitled Adjudication File which was listed today in the WRC. I understand that, since filing his complaint, the Complainant successfully appealed the decision to terminate his employment and had returned to the workplace six weeks after the purported dismissal. The Complainant says he is at no financial /remunerative loss arising out of the sort period of time when he was out of work. He was I understand back-paid by the Respondent for that period of time. There is only one outstanding issue. That relates to the Holiday Pay which would have accrued to the Complainant following the decision to terminated. I understand a sum of money was paid when the Contract of Employment was thought to be terminating but that the Complainant believes the sum paid was less than what he was entitled to. Holiday pay should, I understand, be paid at a basic rate with an enhanced payment over and above depending on the level of commission earned in the 8-week period immediately prior to calculation. The Complainant was not in a position to tell me what the shortfall was. In the circumstances Ms. C S the Regional HR Manager has agreed to look at the records (going back six months from June 2022- (the date the complaint was lodged) and calculate any shortfall that might stilll be payable. I am hoping that Ms. Smith will, within two weeks of this date be able to advise the Complainant directly what is owing (if anything) and how any calculation was reached. If Mr. Gibbs is satisfied with the outcome of that process (and any payment which is due to paid has been paid) I would ask that he contact me and the case Officer (email address above) to confirm that the case is withdrawn. If Mr. Gibbs is not satisfied he should confirm this is the case and I will re-engage with the parties. I would be grateful to have confirmation either way on or before the 14th of June next. I confirm that (after the May 2023 hearing date) the Complainant never came back to the WRC confirming what the position was, and it is in these circumstances that this matter was re-listed for the 28th of May 2025.
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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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00051165-001 - The complainant was not Unfairly Dismissed. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00051165-003 – The complaint herein is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00051165-004 - The complaint herein is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00051165-005 - The complaint herein is not well founded and fails Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00051165-006 - The complaint herein is not well founded and fails.
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Dated: 07th of August 2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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