Complainant

Respondent

Parties

Krzysztof Wegrzynski

Radoslaw Borowski t/a Classic Painting & Decorating

Representatives

Artur Kosiak

 Non-Attendance

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00059071-001

28/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00059071-002 WITHDRAWN

28/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00059071-003 WITHDRAWN

28/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00059071-004

28/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00059071-005 WITHDRAWN

28/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

 CA-00059071-006 WITHDRAWN

28/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00059071-007

28/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00059071-011

28/09/2023

The Complainant, a Polish national, was employed as a painter and decorator by the Respondent, who traded as Classic Painting and Decorating. His employment commenced in 2020 and ended in September 2023. His weekly wage was €650 gross; net €500

The Complainant lodged a number of complaints with the Workplace Relations Commission, including in relation to terms of employment, minimum notice and unfair dismissal. At hearing, some complaints were withdrawn (see above), leaving four principal matters for determination: (1) Failure to provide written terms and conditions of employment, (2) unfair dismissal, (3) failure to pay full statutory notice and outstanding holiday pay.

The Respondent did not attend the hearing. Accordingly, the Complainant’s evidence was uncontested.

CA-00059071-001 Terms of Employment.

The Complainant stated that he never received any written contract of employment, job description, payslips, or an employee handbook during his time with the Respondent. He maintained that he was given no information about company procedures or about his statutory rights as an employee.

CA-00059071-004 Unfair Dismissal:

The Complainant gave evidence that he was told verbally by the Respondent that there was no more work for him. Shortly afterwards, he received a short letter of termination written in English (exhibited). He claimed that there had been no consultation with him, no discussion of redundancy, and no fair procedure of any kind. The Complainant further stated that he later discovered that the Respondent’s business continued to operate after his dismissal and that another worker had been taken on in the same role. He submitted that this demonstrated that his dismissal was not due to a genuine redundancy situation. The Complainant also described the serious personal consequences of the dismissal. At the time of termination, he was 65 years old. He explained that, due to his age, limited English, and the difficult economic climate, he was unable to secure alternative employment. He stated that he and his wife fell into severe financial hardship, at one point living in their car. He confirmed that his only source of income became Jobseeker’s benefit, as his wife was not entitled to any support.

CA-00059071-007 Minimum Notice:

In relation to notice and pay, the Complainant said that he did not receive his full statutory entitlements when his employment ended. The Complainant accepted that he was given two weeks’ wages in lieu of notice.

CA-00059071-011 Holiday pay:

The Complainant stated he had not received a full week holiday pay that was due to him upon termination of his employment.

The Respondent did not attend the hearing.

CA-00059071-001 Terms of Employment.

Furthermore, Section 7(2) of the Terms of Employment (Information) Act 1994 (“the 1994 Act”) provides as follows in relation to redress: -

A recommendation of an adjudicator under subsection (1) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b)(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,

(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations undersection 17 of the Unfair Dismissals Act 1977, nd the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after a contravention to which the complaint relates, as references to the person who, by virtue of the change, becomes entitled to such ownership.

Under the 1994 Act, an employer must provide an employee with a written statement of terms and conditions within two months of commencement. The Complainant received no such document. His uncontested evidence is accepted, and this complaint is well founded.

The sole matter to be decided is the appropriate form of redress. In assessing compensation for the Respondent’s failure to comply with section 3 of the Act, I must take into account the practical consequences for the Complainant. He gave evidence that he repeatedly sought a written statement of his terms of employment but never received one. I am satisfied that the breach was at the more serious end of the scale, given the Complainant’s limited English and his vulnerability arising from a lack of knowledge of his statutory employment rights in Ireland. Having regard to these factors, I award the Complainant compensation in the sum of €2,600, approximately 4 weeks remuneration.

CA-00059071-004 Unfair Dismissal:

Section 6(7) of the Unfair Dismissals Act 1977 Act, as amended (“the 1977 Act”) provides:

"Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, 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 referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act."

Having reviewed the uncontested evidence, I am satisfied that the Respondent acted in an unreasonable manner in the termination of the Complainant’s employment. The Complainant was told verbally that there was no further work for him and was subsequently handed a brief letter of dismissal, without consultation, notice, or any form of fair procedure.

It is particularly significant that the Respondent’s business continued in operation and another worker was engaged in the Complainant’s role shortly after his departure. This undermines any suggestion of redundancy and demonstrates that the dismissal was not genuine. The Complainant, a 65-year-old worker with limited English, was placed in an extremely vulnerable position, and the Respondent made no effort to address his situation fairly or in accordance with law.

In these circumstances, I find that the Respondent’s conduct fell well short of the reasonableness required under section 6(7) of the 1977 Act and amounted to an unfair and unreasonable termination of employment. I find the Complainant was unfairly dismissed.

Redress. Redress for unfair dismissal is provided for under Section 7 where it provides: - 

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17of this Act) as is just and equitable having regard to all the circumstances, or

(ii) 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, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. (1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(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...

The financial and personal hardship experienced by the Complainant was contributed to significantly by the Respondent’s abrupt and unreasonable decision to terminate his employment. By ending his employment without fair process or adequate notice, the Respondent removed his only source of income at a time when, due to his age and limited English, his chances of securing alternative work were already limited. The Complainant gave unchallenged evidence that, following the dismissal, he and his wife became homeless, living in their car and without a permanent address from which to apply for jobs. I am satisfied that these difficulties and losses were aggravated by the Respondent’s unlawful conduct and are properly attributable to the employer to the extent that the quantifiable sum in this decision takes account of that, as referred to under section 7(a) of the 1977 Act. In contrast, no evidence was given of any contributory action by the Complainant in the manner of his dismissal.

Having weighed all factors, I consider that an award of one year’s salary, amounting to €33,800, is fair and reasonable in the circumstances. This sum reflects the seriousness of the breach, the gravity of the impact on the Complainant, and the absence of any contributory conduct on his part.

CA-00059071-007 Minimum Notice:

The Complainant gave evidence that he received two weeks pay in lieu of notice. The Complainant was employed withing the 2-to-5-year service band. The appropriate minimum notice is 2 weeks, therefore the notice falls within the acceptable range. The Minimum Notice and Terms of Employment Act 1973 (“the 1973 Act”) at section 7 provides:

7.Right to waive notice

(1)

Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.

(2)

In any case where an employee accepts payment in lieu of notice, the date of termination of that person's employment shall, for the purposes of the Act of 1967, be deemed to be the date on which notice, if given, would have expired.

The Complainant received and accepted two weeks’ pay in lieu of notice. In these circumstances, I find that the requirements of the Minimum Notice and Terms of Employment Act 1973 were met. Accordingly, this complaint is not well-founded.

CA-00059071-011 Holiday pay:

The Complainant gave evidence that he did not receive one week’s holiday pay that was due to him. The Payment of Wages Act 1991 (“the 1991 Act”) provides:

S.1 “wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including— any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice: Provided however that the following payments shall not be regarded as wages for the purposes of this definition: any payment in respect of expenses incurred by the employee in carrying out his employment,  payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office, any payment referable to the employee's redundancy, any payment to the employee otherwise than in his capacity as an employee, any payment in kind or benefit in kind[,any payment by way of tips and gratuities.

S 5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless-

(a)    The deduction (or payment) is required or authorised to be made by virtue of any statute, or any instrument made under any statute,

(b)     The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c)    In the case of a deduction, the employee has given his prior consent in writing to it.

Based on the Complainant’s uncontested evidence, I am satisfied that he was not paid one week’s holiday entitlement. Holiday pay is defined as wages within the meaning of section 1 of the 1991 Act and was therefore properly payable under the Act. As any award under the Act must reflect the net amount due.  I direct the Respondent to pay the Complainant of the net  sum of €500.

CA-00059071-001 Terms of Employment.

For the reasons outlined above, I find that the complaint was well founded and I award the Complainant the compensatory sum of €2600.

CA-00059071-004 Unfair Dismissal:

For the reasons outlined above, I find the Complainant was unfairly dismissed and I award the compensatory sum of €33,800.

CA-00059071-007 Minimum Notice:

For the reasons outlined above, I find the complaint was not well founded.

CA-00059071-011 Holiday pay:

For the reasons outlined above, I find the  complaint was well founded and I award the Complainant the net sum of €500.

Terms of Employment (Information) act 1994, Unfair Dismissals Act 1977, Minimum Notice and Terms of Employment Act 1973, Payment of Wages Act 1991.