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-00000013-001

01/10/2015

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

CA-00000024-001

02/10/2015

The    complainant was employed by the Employer as an Operative (Shift Manager) for    5 years. The Claimant was unfairly dismissed by his Employer on 17th June    2015 in the circumstances more fully set out hereunder.      Prior to the Claimant’s dismissal by the Employer on 17th June 2015, the    Claimant had only ever been the subject of two complaints from the Employer    in respect of the Claimant’s employment with the Employer. The Claimant    received a verbal warning on 11th June 2014 that remained in place for 6    months for running in the aisles of the Employer’s factory premises in    alleged breach of the Employer’s health and safety procedures. The practice    that resulted in the Claimant receiving the verbal warning was a practice in    which the Employer’s employees regularly engaged in and was a practice that    was not actively discouraged by the Employer but tolerated by the Employer    as a means of aiding the Employer’s employees in meeting the Employer’s    production deadlines.      The second complaint related to a breach of the Employer’s health and safety    procedures. In or around June 2014, the Claimant cut a roll of plastic while    the rollers were turned on (which speeded up the process), which was    contrary to the approved procedure of first turning off the machine and then    cutting the plastic. The Claimant was given a written warning which remained    in place for one year.      The Claimant sustained an injury in an accident in the workplace during the    course of the Claimant’s employment on the 16th April, 2014. The Claimant    suffered personal injuries to his left foot/ ankle. After some    consideration, the Claimant decided to take a personal injuries claim    against the Employer. As of the date of this Complaint Form, the claimant’s    personal injuries claim is currently with the Injuries Board for assessment.      When the Claimant’s Manager became aware of the fact that the Claimant had    lodged a personal injuries claim against the Employer in respect of the    accident that occurred on the 16th April 2014, he began to behave adversely    to the Claimant from then on until the date of the Claimant’s dismissal on    17thJune 2015. In particular, he approached the Claimant on several    occasions (including in particular, but not limited to, approaches made on    16th June 2014 and on 3rd March 2015) and stated to the Claimant that the    Claimant should not pursue his personal injuries claim. Moreover, the    Manager regularly approached the Claimant and sought updates as to the    status of the Claimant’s personal injuries claim. Further, to the Claimant’s knowledge, the    Manager questioned other employees as to the status of the Claimant’s    personal injuries claim. Further, he went so far as to approach the Claimant    in an attempt to settle the Claimant’s personal injuries claim directly with    the Claimant despite being fully aware that the Employer’s insurance company    was dealing with the matter on the Employer’s behalf and despite being    advised by the Claimant that his Solicitors were on record for the Claimant    in respect of the Claimant’s personal injuries claim. This conduct on the    part of the Manager towards the Claimant amounted to bullying, harassment    and intimidation by him of the Claimant that was motivated by the exercise    by the Claimant of his constitutional right to institute proceedings against    his Employer in respect of the injury suffered by the Claimant during the    course of his employment and that constituted an unlawful attempt to    dissuade the Claimant from proceeding with his personal injuries claim.      On the Claimant’s instructions, his Solicitors wrote to the Employer and to    the Employer’s Insurance Company on record in respect of the Claimant’s    personal injuries claim on two separate occasions (by letters dated 20th    June, 2014 and 31st March, 2015) requesting that the Manager refrain from    intimidating or speaking to the Claimant about the Claimant’s personal    injuries claim.      However, despite these Solicitor’s letters dated 20th June 2014 and 31st    March 2015, the Manager continued to approach and harass the Claimant about    the status of the Claimant’s personal injuries claim and did so until the    date of the Claimant’s dismissal on 17th June 2015. In or around June 2014,    prior to the date of the Claimant’s dismissal on 17thJune 2015, the Manager    approached the Claimant while the Claimant was working and uttered the    following remark to the Claimant:      “do you think I will take this lying down, I’ll fight tooth and nail, this    will take years. How much do you think you will get”.      Unfortunately, the Claimant was involved in a second accident in the    workplace on 18th May, 2015 in which the Claimant suffered further personal    injuries. The Claimant sustained an injury to his right ring finger when it    became trapped between two rollers, which caused the Claimant to sustain a    fracture to his right ring finger and the tendons to become removed from the    bone. The Claimant is currently under the ongoing care at Waterford    University Hospital in respect of this injury. The Claimant intends to bring    a further personal injuries claim against the Employer in respect of the    further personal injuries suffered by the Claimant during the course of his    employment on the 18th May 2015.      Following the accident of the 18th May 2015, the Claimant was not in a    position to carry out his work with the Employer and the Claimant was    certified as unfit for work with his Employer from 18th May 2015 until 26th    June 2015. The Claimant was placed on disability with the Dept. of Social    Protection (in or around October 2014, the Claimant had been suspended by    the Employer from the Employer’s Company Sick Pay Scheme due to a    miscommunication with the HR Department of the Employer in relation to sick    pay Certificates, thus making it necessary for the Claimant to register for    disability benefit with the Dept of Social Protection).      During the course of the Claimant’s employment with the Employer, the Claimant    extended occasional, informal and limited assistance to his brother in his    brother’s recently opened food business in a Public House.. This assistance    consisted of attending at the premises for short periods during which the    Claimant inter alia took some customer food orders and served some customer    food orders. At no time was the Claimant employed by his brother and at no    time was the Claimant otherwise contracted to his brother for reward.      The Manager became aware of the Claimant’s attendance at the Claimant’s    brother’s premises. On Friday 12th June 2015, he telephoned the Claimant and    stated to the Claimant that he (the Manager) had seen the Claimant working    in his brother’s premises on 12th June 2015. The Manager also stated to the    Claimant that he had an independent witness who had seen the Claimant    working in his brother’s premises. He requested the Claimant to attend a    meeting on Monday the 15th June 2015 and suggested that the Claimant should    bring a union representative. On 15th June 2015, the Claimant telephoned the    Manager that he was unable to attend the meeting on the 15th June 2015 on    the basis that he could not obtain union representation for the 15th June    2015. The Manager rearranged the meeting for the 17th June 2015 and Mr.    Power stated to the Claimant during this conversation that “changing the    date of the meeting would make no difference to the outcome”.      The meeting took place on 17th June, 2015. Present at the meeting were the    Claimant, the Manager, a Shop Steward, and a representative from the HR    department of the Employer. The Claimant was represented at the meeting by    the Shop Steward.      Before the meeting of the 17th June 2015, the Employer did not furnish the    Claimant with written particulars of the purpose of the meeting on 17th June    2015; the matters to be discussed and considered at the meeting on 17th June    2015; and the possible outcomes of the meeting on 17th June 2015.      At the meeting on 17th June 2015, the Manager put it to the Claimant that    the Claimant had been seen on more than one occasion working in the Claimant’s    brother’s premises. He also put it to the Claimant that he (the Manager) had    personally attended the Claimant’s brother’s premises on Friday the 12th    June, 2015 and witnessed the Claimant assisting his brother in the    restaurant. The Manager further stated to the Claimant that it was well    known that the Claimant was working at the Bar and that he (the Manager) had    heard it himself. The Claimant confirmed to the Manager that he did assist    his brother in a limited and informal way in the Bar as aforesaid and that    the Claimant did not receive any remuneration from his brother for this    informal and limited assistance. The Claimant confirmed to the Manager that    he was not in the employment of his brother or otherwise contracted to his    brother for reward.      At the meeting on 17th June 2015, the Claimant was presented by the Manager    with a letter from a named person stating that they had seen the Claimant    working in the restaurant on several occasions. The meeting on 17th June    2015 was the first occasion on which the Claimant saw this letter or learned    of the existence of this letter.      The Manager stated to the Claimant that the Claimant had worked while    certified as unfit for work until 26th June 2015 and that this constituted    gross misconduct. He also stated to the Claimant that the Claimant’s    personal injuries claims against the Employer would be dismissed by reason    of this.      After the Claimant had answered the Manager’s questions and allegations, the    Claimant was asked by him to leave the meeting room so that he could discuss    the matter with the Shop Steward. The Claimant left the room as requested    and the Shop Steward remained in the room with the Manager. While the    Claimant was outside of the room, the Manager informed the Shop Steward that    the Claimant should resign from his employment with the Employer and that if    the Claimant did not resign from his employment with the Employer, the Claimant    would be fired. The Shop Steward left the meeting to inform the Claimant of    the Manager’s position.      The Claimant re-entered the meeting and said that he had been up front and honest    with the Manager and explained that he had a young family. There was a 5    minute recess after which the meeting    recommenced and the Claimant stated that he would not be resigning from his employment.    The Manager then told the Claimant that his employment with the Employer was    terminated with immediate effect. The Claimant thereupon left the meeting    room by himself.      The Claimant subsequently received a letter dated 19th June 2015 from the Employer    signed by the Manager and headed “Gross Misconduct-Dismissal” and confirming    that the Claimant’s employment with the Employer was terminated with    immediate effect. At no time did the Employer afford the Claimant a right of    appeal against the decision to dismiss the Claimant.      In all of the circumstances, the Claimant was unfairly dismissed by his    employer within the meaning of the Unfair Dismissals Acts 1977 to 2007. The    decision of the Employer to summarily terminate the Claimant’s contract of    employment was wholly premature, in breach of the rules of fair procedures    and procedurally and substantively disproportionate.      Pursuant to s.6(7) of the Unfair Dismissals Acts 1977 to 2007, the Workplace    Relations Commission is empowered to have regard to the reasonableness of    the conduct of the Employer with regard to a dismissal in determining    whether the dismissal is an unfair dismissal. The Employer’s behaviour with    regard to its decision to terminate the Claimant’s contract of employment    was, in all of the circumstances, wholly unreasonable and, of itself, the    behaviour of the Claimant’s employer with regard to the dismissal of the    Claimant renders the Claimant’s dismissal unfair within the meaning of the    Unfair Dismissals Acts 1977 to 2007.      The matters upon which the Claimant will rely in support of his claim that    he was unfairly dismissed by the Employer within the meaning of the Unfair    Dismissals Acts 1977 to 2007 are not confined to the matters set out herein and    the Claimant fully reserves the right to adduce in evidence and rely upon    further or other matters not specified herein in support of his claim.