ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006230

Parties:

	Complainant	Respondent
Anonymised Parties	A Chef	A Catering Company

Representatives

David Alvarez Solicitor for Sky Solicitors

John Barry Management Support Services (Ireland) Ltd

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00008365-001	24/11/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008365-002	24/11/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008365-003	24/11/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00008365-004	24/11/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00008365-005	24/11/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008365-006	24/11/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00008365-007	24/11/2016

Date of Adjudication Hearing: 21/06/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 8 of the Unfair Dismissals Acts, 1977 – 2015 ; Section 27 of the Organisation of Working Time Act, 1997 ; Section 6 of the Payment of Wages Act, 1991; Section 7 of the Terms of Employment (Information) Act, 1994 and Section 11 of the Minimum Notice & Terms of Employment Act, 1973 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant commenced employment in September 2000 and the employment ended in July 2016. The Complainant was a Chef in a whole sale food preparation outlet. The Complainant physically ceased working in or about the 6^th September 2015. He was on continuous Sick Leave from that date.

1: Summary of Complainant’s Case:

1:1 To assist in handing the claim I have summarised the main elements below. The Complainant submitted, via his Solicitor, a comprehensive written submission and via an Interpreter gave Oral evidence.


Act	Complaint/Dispute Reference No.	Summary Comments
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00008365-001	Withdrawn prior to hearing.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008365-002	No Paid Holidays
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008365-003	No Paid breaks
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00008365-004	No Written Statement of Terms and Conditions of Employment
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00008365-005	Unfair Dismissals with due Procedure / breach of Natural Justice /SI 146 of 2000
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008365-006	Penalisation for refusing to co operate with a Breach of OWT Act,1997
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00008365-007	No Statutory Minimum Notice given

1:2 In the Oral Hearing it was clear that the key issue was the Unfair Dismissal Act, 1977 claim - CA-00008365-005

In this instance the Complainant maintained that he had been dismissed with effect from the 26/07/2016 without any fair procedures or realistic efforts made to establish contact with him. In the Oral Hearing it was made clear that the Complainant was not able to communicate, other than at a most basic level, in oral English and was functionally illiterate. He had a major difficulty with understanding Text Messages. He had no IT/PC skills whatsoever.

The Communication efforts from the Respondent to invite him to meetings by Text or e mail were often completely incomprehensible to him.

In regard to his medical situation no efforts were made by the Respondent to clearly establish his medical condition prior to the Dismissal decision being taken.

It was accepted that elements of the claim might be out of time but this was due to the Communications difficulties of the Complainant.

2: Summary of Respondent’s Case:

2:1 Again to summarise matters I have briefly set out the Respondent position. Detailed consideration will be given to specific complaints below following the summary.
Act	Complaint/Dispute Reference No.	Summary Comments
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00008365-001	Withdrawn prior to hearing.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008365-002	No Paid Holidays. Complainant was paid for all outstanding Annual leave on termination. The Public Holiday claim is Out of Time. The claim was lodged on the 24^th November 2016 more than 12 months since he was last in employment.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008365-003	No Paid breaks This element of the claim is Out of Time as per claim above
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00008365-004	No Written Statement of Terms and Conditions of Employment. The Complainant received written Terms in April 2010.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00008365-005	Unfair Dismissals with due Procedure / breach of Natural Justice /SI 146 of 2000 This will be given greater detail below.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008365-006	Penalisation for refusing to co operate with a Breach of OWT Act,1997 The claim is refuted. The Complaint is referenced, in submissions, to the provisions /requirements of the Health and Safety at Work Act, 2005. Taking these provisions the claim is without adequate foundation and No Penalisation was proven or actually took place.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00008365-007	No Statutory Minimum Notice given. The Complainant had been fairly dismissed due to lack of contact with the Respondent. Accordingly no claim for notice is valid.

The Unfair Dismissals Act, 1977 claim. CA-00008365-005

The Complainant went sick on the 6^th September 2015. Irregular Sick certs followed. In June 2016 the Respondent made a number of efforts to contact the Complainant. Ms A, the Administrator made telephone calls, e mails and sent registered letters. Eventually a very loose e mail correspondence link, via it appeared a literate third party, was established. The Respondent sent a letter and an email dated the 13^th July 2017 effectively informing the Complainant that unless he corresponded/made contact by the 25^th July 2016 his employment would be terminated. No reply was received and on the 26^th July 2016 the Respondent wrote ,by registered mail , to the Complainant accepting his de facto resignation due to lack of contact. The Registered letter was returned by An Post.

The Complainant visited the Respondent (to have Social Welfare forms completed) on the 20^th Septembers 2016 and no mention was made of any disagreements regarding the dismissal. The Social Welfare forms clearly stated the date of the ending of employment.

The Respondent made all correct efforts to contact the Complainant to allow him fully participate in the proper employment procedures. Effectively he, in simple English, “walked away” from his position by his failure to engage in any realistic communications with his employer. The claim for Unfair Dismissal must accordingly fail.

3: Findings / Discussion of the Evidence and Conclusions: The Unfair Dismissal Claim

3:1 The Law and Natural Justice /S.I. 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures.

In the landmark case Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

Code of Practice on Grievance and Disciplinary Procedures is equally clear cut on the issue of proper procedures and adequate inquiries.

3:2 Consideration of the Evidence.

The parties both made written submissions. However the materials evidenced on the date of the Oral Hearing were equally significant.

The background of the Complainant was crucial I felt.

He had no functional English and was illiterate. He had been recruited by other Urdu (his native language) speakers from his home country and had effectively lived in a Non English environment while in Ireland. His supervisors were Urdu speakers as was the Managing Director / chief executive of the Company. The Complainant worked, what appeared to be a six day week, with long hours.

The Respondent initially took quite a relaxed view, it seemed, to his absence in late 2015. Medical certs were supplied infrequently. In the Summer of 2016 the Respondent, quite properly in my view, sought to bring some clarity to matters.

A number of issues follow.

Communications :

The efforts at establishing communications were, it appeared, carried out primarily by Ms. A, the Administrator. She clearly did not speak the Complainant’s language and did not seem to have fully allowed for the facts of the Complainant’s illiteracy. None the less she made a considered and genuine effort to establish communications. Her evidence was credible. From the Oral evidence I formed the opinion that the Complainant was aware in July that the Respondent was seeking to make contact. However the question as to whether or not Dismissal/ Ending of Employment was grasped by the Complainant was far from clear.

None the less I felt that Natural Justice would have required that an Urdu speaker (from the existing staff) should have been requested to assist in the Communications process. The Complainant had some 15 years service at this stage and his illiteracy and lack of English must have been well know to the staff of the Respondent. Natural Justice requires that an employee facing dismissal has to be made fully aware of his position and his views canvassed even allowing for Language difficulties.

The opportunity for a follow up or clarification at the visit by the Complainant in September 2016 did not appear to have been availed of. In keeping with Natural Justice, an Appeal of the Dismissal with the Managing Director, in the Complainant’s own language, would have been opportune at that stage.

Procedural issues.

The Complainant did not speak English and could not read or write. The issuing of Terms and Conditions did not appear to have happened until 2010 at the earliest. The written materials relating to the major Customer incident (incorrect labelling) in 2011 were a good grounding in the procedures. It also highlighted the difficulties the Complainant was having with Mr. WM, his Superior. Issues in relation to the differences in Ages between the parties were mentioned. However I did not feel, having reflected on the evidence that the Complainant was fully aware of the importance of the written procedures.

Medical issues:

Legal precedents are very strong here. An employer has to be fully cognisant, to a reasonable degree, of all employment related Medical issues. The Complaint had been on Sick Leave since September 2015. Accepting the communication difficulties set out above Natural Justice would seem to have been better served if the Respondent had made, even cursory Medical Inquires, as to the Medical situation of the Complainant in mid Summer 2016.

To end the Complainant’s employment in the absence of up to date medical information, even from a GP, does not sit well with legal precedents in this area.

Respondent Mitigation

In mitigation for the Respondent the Complainant had by 2016 been living in Ireland for some 15 years. His colleagues, from his own country were able to communicate with him in his own language. At the oral hearing, while he was heavily reliant on the Interpreter, I did not get the impression that all matters were lost on him. By replying, albeit by a blank sheet, to Ms. A’s email in July 2016 he had to have been aware that the Respondent was trying to contact him.

As there was an onus on the Respondent to use an Urdu speaker to help with the Communications there was an equal onus on the Complainant to establish an effective channel of communications. Common sense had to apply, as well, to the Complainant. He was absent for over 9 months. He could not have believed that the Respondent was not anxious to make contact with him

3:3 Summary /Conclusions from the Evidence –both Oral and Written.

On the basis of the Communications, Lack of Medical Inquires and lack of required Proper Information to the Complainant, as discussed above, and referencing SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures I came to the view that the Dismissal was technically Unfair.

In mitigation to the Respondent I was also of the view that the behaviour of the Complainant, in not keeping in regular contact with his Employer, was very remiss. There were plenty of Urdu speakers on the staff of the Respondent, illiteracy of the Complainant not withstanding, and a channel of communication could easily have been maintained. Likewise there was nothing to prevent him from keeping his employer apprised of his medical situation.

Accordingly the final conclusion in regard to the Unfair Dismissal claim is that the Dismissal was Unfair but that the Complainant contributed, by his over relaxed Communication efforts in early 2016 with his employer, to a factor of 50% to the Decision. I did not find it credible that the Complainant t was unable to keep in regular Communication with his employer during this period. The Complainant was able to secured Irish Citizen ship in or about 2008 and his lack of English language skills was not as clear cut, I felt, as he maintained.

3:4 Redress:

In evidence it was stated that Reinstatement or Reengagement were not viable options. The Complainant has been on Disability Benefit and unavailable for employment, since the date of the Employment Ending.

Accordingly under Section 7(1) (c) of the Unfair Dismissal Act, 1977 I award redress of four weeks gross pay to the Complainant. Taking the approximate figures from the Claim form of a weekly wage of some € 450 this equates to a gross lump sum of €1,800.

The taxation of this amount to be a matter for discussion with the Revenue Commissioners.

4: Other Complaints. Consideration from the Evidence and Redress where appropriate.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008365-002	No Paid Holidays. Complainant was paid for all outstanding Annual leave on termination. The claim was lodged on the 24^th November 2016 more than 12 months since he was last in employment. The Public Holiday claim is Out of Time and is dismissed.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008365-003	No Paid breaks This element of the claim is Out of Time as per claim above. The Claim is Dismissed.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00008365-004	No Written Statement of Terms and Conditions of Employment. The Complainant received written Terms in April 2010. The Claim is well founded. The evidence pointed to the fact that no written T&Cs had been provide for the first ten year’s of employment. Redress : Under Section 7 of the section 7 of the Terms of Employment (Information) Act, 1994 Redress of Four Weeks Pay (€1800) is awarded as compensation for Breach of a Statutory right. Taxation to be a matter for Consideration by the Revenue Commissioners.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008365-006	Penalisation for refusing to co operate with a Breach of OWT Act,1997 I did not find this Complaint well founded. It lacked specific supporting evidence. Complaint is Dismissed.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00008365-007	No Statutory Minimum Notice given. Complainant was Unfairly Dismissed. Statutory Notice of some 8 weeks gross pay is accordingly due. €450 x 8 = €3,600 Gross Pay. Taxation a matter for the Revenue Commissioners.

5: Formal Decisions:

Section 41 of the Workplace Relations Act 2015, Section 8 of the Unfair Dismissals Acts, 1977 – 2015; Section 27 of the Organisation of Working Time Act, 1997 ; Section 6 of the Payment of Wages Act, 1991; Section 7 of the Terms of Employment (Information) Act, 1994; Section 11 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

The Decisions are as set out above in Sections 3 and Four of this Adjudication.

In Summary

Unfair Dismissal was found (Complaint CA-00008365-005) Redress of € 1,800 awarded.

Terms of Employment (Information) Act, 1994 (CA-00008365-004) – Compensation of € €1,800 awarded.

Minimum Notice & Terms of Employment Act, 1973 (Complaint CA-00008365-007) – redress of €1,800 awarded.

All other Complaints dismissed (Ref Sections 3 and 4 above) as either out of time or otherwise not well founded.

Dated: 10^th August 2017

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