UD529/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                    CASE NO.

Krzysztof Rawski                               -claimant

                                                                                                                          UD529/2014

against

Callan Bacon Company Limited        -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr N. Russell

Members:     Mr J. Hennessy

                    Mr F. Dorgan

heard this claim at Kilkenny on 24th June 2015 and 18th August 2015

Representation:

Claimant:        Mr. Lars Asmussen B.L. instructed by Ormonde & Co. Solicitors, Suite 19,

                        The Atrium, Canada Street, Waterford

Respondent:    Mr. John Farrell, IBEC, Confederation House,

Waterford Business Park, Cork Road, Waterford

Background and summary of evidence:

A translator was provided by the Tribunal for the hearing. The case before the Tribunal was one of constructive dismissal. The claimant commenced his employment with the respondent company in October 2010, working as a general operative within the factory. The employment appeared to have been uneventful until the 19^th of April 2013.

The Tribunal heard that employees of the respondent’s factory are required to work at least four hours of overtime per week. On the morning of the 19^th April 2013 the claimant informed the Line Leader that he was unable to work overtime that day. At the end of his shift he left the line but was instructed to return to the line to carry out overtime. The claimant raised the matter with the Line Leader reminding him that he had already told him that morning he was unable to work overtime that day. It was the company’s case that when the claimant returned to the line he berated and pointed his finger at the line leader and that they pushed each other. The line manager was forced to intervene. It was the claimant’s case that he was verbally and physically assaulted by the line leader and that when he complained of this to the line manager he was threatened with dismissal should he pursue a complaint.

The claimant was very upset following the incident and he spoke with a shop steward. It was the evidence of the General Manager that he happened upon the claimant and the shop steward in the car park of the factory on 19^th April 2013 and that the claimant was upset and in a distressed state. The General Manager held a meeting in his office with the claimant in the presence of the Area Production Manager and the shop steward. The claimant made a complaint through English about the matter and the General Manager informed him that the matter would be investigated. It was the claimant’s evidence that at this meeting a request was made by him to see the CCTV footage but this was not provided to him at any stage.

It was the claimant’s evidence that he was very stressed regarding the incident and he attended his doctor on 22 April 2013 as a result. The claimant was prescribed medication and provided with a medical certificate. The claimant continued to be unfit for work thereafter and he provided medical certificates to the company via the shop steward.

The claimant’s solicitor wrote a letter dated 18^th November 2013 asking the company to fully investigate the claimant’s grievances and noting that the company have not contacted the claimant.

The company responded by letter dated 22^nd November 2013 (without prejudice rights were waived by the company at the hearing in relation to this letter) which stated that the matter would first be addressed at local level using the normal union procedure. The claimant’s solicitor replied that he was representing the claimant in the matter, not the union, and he again asked the company to investigate the claimant’s grievances.

At a meeting in December 2013 the claimant was informed that he would be referred to the company doctor for assessment. At that meeting the company raised the fact that a number of letters were sent to the claimant but it transpired that the claimant had moved address and the letters had not been sent to the relevant address.

A letter later issued to the claimant’s current address asking him to attend the company doctor on 20^th December 2013 but he could not attend on that date and his solicitor requested that the company re-arrange this appointment. The company wrote to the claimant re-arranging the appointment for 10^th January 2014. It was the company’s case that attempts were made on a number of occasions to contact the claimant by telephone for an update in relation to his health. The claimant refuted this in his evidence.

The claimant’s solicitor wrote a further letter dated 4^th March 2014 stating that the company had corresponded with a number of incorrect addresses for the claimant despite being aware that he was residing at his current address since March 2013. A number of letters from the company to the claimant were opened to the Tribunal. The claimant stated in evidence that he had never resided at the addresses on those letters. The solicitor’s letter further stated that the claimant was resigning his position on grounds of constructive dismissal. The letter noted that the company had corresponded with the claimant only in relation to his health but not in relation to his grievance or any investigation.

However, it was the evidence of the General Manager that an investigation was conducted and concluded within days of the incident occurring on 19^th April 2013. A letter was opened to the Tribunal dated 25^th April 2013 but should have in fact been dated 25^th May 2013. The letter was written by the Operations Manager and stated that the Line Leader had been suspended from his duties as a result of “pushing” the claimant on the line and that the manager of the line had been dismissed from his duties.

The General Manager stated that witness statements were taken from 11 employees in the vicinity of the incident. In reply to questions from the Tribunal, he confirmed that he wrote the statements of what the witnesses said and they signed them. It was the claimant’s evidence that he did not receive this letter despite the fact that it contained his correct address and he further stated that he was not told or provided with the witness statements until February 2014 when his solicitor received copies of them.

The General Manager stated that he reached the conclusion that the matter was “a storm in a teacup” and that while an incident had occurred no further action regarding it was required. The line leader was suspended pending the outcome of the investigation and was returned to work on the basis that he was not to react to a situation regardless of the provocation from an employee. During cross-examination it was put to the witness that the conduct he referred to as “a storm in a teacup” was a physical assault and that the claimant had also been threatened with dismissal by a manager and that the claimant was not informed of the investigation or its outcome even as part of a data request made to the company. The General Manager stated that attempts were made by the company to contact the claimant. He accepted that the claimant did not receive his contract of employment or the employee handbook in his native language and that a copy of the CCTV footage, which he had seen as part of the investigation, should have been retained.

The Production Manager’s evidence was that he tried to contact the claimant the week after the statements were taken. He made attempts to contact the claimant through the shop steward and the responses received indicated to him that the shop steward was in contact with the claimant.

It was the claimant’s evidence that he has a poor command of the English language and that most of the time another employee translated for him. It was put to the claimant during cross-examination that the management of the factory communicated with him in English without difficulty. The claimant replied that it may just have seemed that he understood what was being said. It was also put to the claimant that he had received training through the English language but he indicated that he had only understood the training through the actions demonstrated at training.

The Area Manager gave evidence that there are 23 employees on each shift and that English is the working language of the factory. The claimant’s role was to pack meat and this was a responsible role for labelling and quality check purposes. He and the Area Manager needed to communicate with each other and they were able to do this using the claimant’s functional level of English.

The claimant stated that he had lost trust in management when he resigned from his employment. He gave evidence of his financial loss and his attempts to mitigate that loss which included securing 18.5 hours work per week from February 2015 at a rate of €8.65 per hour. During cross-examination the claimant indicated that he is content with that level of work for the time being.

Determination:

The claimant having terminated his own employment the Tribunal must consider, if, in all of the circumstances he was entitled to so terminate and whether it was reasonable for him to do so.

The Tribunal heard extensive evidence, considered the documentation submitted and had due regard for the excellent submissions made by the representatives of both parties in arriving at its conclusions.

The preliminary findings of the Tribunal are:-

• There was a serious incident on      the 19^th April 2013. It was common case that the claimant was      in a deeply distressed condition after the incident.

• The investigation conducted by      the respondent was hasty and wholly inadequate, the conclusions drawn were      questionable, the documenting of the investigation was poor as was the      communication of the outcome to the claimant. The respondent ignored the requests of      the claimant’s legal representative for a comprehensive investigation.

• The communication between the      parties at the time was poor and the Tribunal firmly lays the greater      blame for this on the respondent.       Irrespective of any informal practices within the place of work, in      circumstances where the established line of communication was not proving      effective, the Tribunal cannot understand how the opportunity presented      for a solid line of communication through the claimant’s solicitor was not      taken. The respondent’s professed      frustration at the claimant’s failure to engage is totally irreconcilable with the respondent’s refusal to avail of the possibility presented to      it to engage through the claimant’s solicitor

Having considered its preliminary findings, the Tribunal determines that, in all of the circumstances the claimant was entitled to resign his position and that it was reasonable for him to do so.

During cross-examination the representative for the respondent elicited that the claimant, having secured new employment on the 2^nd February 2015, is happy in that employment and no longer actively seeking employment with improved terms. The Tribunal has taken that fact into account in measuring compensation.

The Tribunal awards the claimant the sum of €20,000 in respect of his constructive dismissal under the Unfair Dismissal Acts, 1977 to 2007.

While not ultimately relevant to the Determination of the Tribunal in this instance the peripheral issue of the translation of contracts of employment and supporting handbooks was a source of considerable discussion and debate. To this Tribunal it is simply unacceptable, that in a workplace where there is a multi-national workforce, employees would be denied access to copies of documents fundamental to their respective contractual relationships with their employer in their respective native languages. There are very few languages that cannot be easily (and relatively inexpensively) translated.

Sealed with the Seal of the

Employment Appeals Tribunal

This ________________________

(Sgd.) ________________________

     (CHAIRMAN)