ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002248

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 17/10/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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).

Unfair Dismissals Act 1977

Respondents Submissions and Presentations

The respondent confirmed that the claimant was employed from Sept 2009 to the 20^thNov.2015 and was paid €400 per week. The respondent denied that the dismissal was unfair and asserted that the claimant was dismissed for gross misconduct and neglect of duties .It was asserted that the claimant had been served with a series of verbal and written warnings over the years in accordance with his contract of employment.

It was submitted that on the claimant’s date of dismissal, there had been serious neglect of the pigs – it was alleged that they had been left without food, were hungry and photographic evidence was presented. It was asserted that this had been the final resort for the respondent and they were left with no option but to dismiss the claimant. The claimant had failed to appeal the dismissal and fire hazard and welfare issues had arisen as a result of the lights in the weaners being on all night.

It was asserted that the claimant had been failing in his duty of care to the pigs and had failed to provide TLC for the little pigs who were not thriving. It was asserted that in April 2014, 3 pigs had died and that the respondent had been lenient in only serving the claimant with a written warning at the time .It was alleged that the respondent had reduced the claimant to a 3 day week because of his continuing poor performance and behaviour .It was asserted that the claimant had a reasonable standard of English and when the respondent discovered that the pigs were hungry he met with the claimant “ at the scene of the crime”. It was contended that during the week of his dismissal the claimant was asked to clean the canteen and he refused to do so until he got his payslips.

Claimant’s Submissions and Presentation

The claimant was employed as a Farm Labourer with the respondent from the 12^th.Sept. 2009 to the 20^th.Nov.2015 when he alleges he was unfairly dismissed. It was submitted that the claimant was dismissed in the absence of fair procedures and without any previous disciplinary sanction. He asserted that he had only once received a warning in 2009 when he left early to go home on a Sunday , that he did not receive any verbal warnings as alleged by the respondent and that he had never received the warning letter of the 17^th.April 2015 re “ Deliberate Neglect” or indeed the warning of the 19^th.September2014 or the 3^rd.April 2014 furnished by the respondent.

The claimant denied the allegations of neglect of the pigs and submitted that he had fed them and would never let pigs to die. He asserted that the matter of full slurry tanks had never been raised with him and that the respondent reduced his status to part time after SIPTU had written to the respondent on behalf of the claimant. He could not recall precisely the chronology of meetings prior to the dismissal and asserted that he received the dismissal letter of the 20^th.Nov.2015 by post. He submitted that subsequent to this he met the respondent at a filling station where he was requested to sign up to a full and final settlement but declined to do so. He stated that he had been suffering from conjunctivitis the week he was dismissed and had never received protective goggles from the respondent. He denied the allegation that he had let the pigs go hungry because he had been angry and wanted to teach the respondent a lesson. He asserted he had to continuously challenge the respondent for pay slips and this was a major factor in the exchanges that took place prior to his dismissal.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

[Section 8(1B) of the Unfair Dismissals Act, 1977 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.

Decision:

I have reviewed the evidence presented at the hearings and noted the conflicting accounts of the parties in relation to the events leading up to the claimant’s dismissal. I have noted the respondent’s submissions with respect to previous sanctions and taken account of the certification from the claimant’s GP that the claimant was certified sick from the 16^th-19^th.November 2015. While I acknowledge the significant dispute between the parties with respect to previous sanctions and noted the absence of clarity from the claimant with respect to the sequence of meetings prior to his dismissal, I have concluded on the balance of probabilities that the dismissal was procedurally flawed and therefore unfair. I base this on my conclusion that the initial decision to reduce the claimant to a 3 day week and to dismiss him less than 2 weeks later were effected without observance of the claimant’s rights under natural justice , without observance of the respondent’s own disciplinary procedures and without compliance with the provisions of SI146/2000. Accordingly I uphold the complaint of unfair dismissal and require the respondent to pay the claimant €10,000 compensation within 4 weeks of the date of this decision.

Minimum Notice and Terms of Employment Act 1973

Claimant’s Submission

The claimant submitted the respondent was in breach of the Act for failing to provide him with minimum notice in accordance with the Act.

Respondent’s Submission

The respondent denied that any notice was required in circumstances where the claimant was guilty of gross misconduct and had failed to meet required performance standards.

Decision

Having reviewed the evidence presented at the hearing, I find the respondent failed to pay the claimant his due notice and I require the respondent to pay the claimant €1,600 compensation within 4 weeks of the date of this decision.

Organisation of Working Time Act 1997

Summary of Claimant’s Position

The claimant submitted the respondent was in breach of the Act for failing to pay him 3 weeks outstanding holidays on termination of his employment.

Summary of Respondent’s Position

The respondent denied any breach of the Act in their written submission but accepted at the hearing that the claimant was due 9.44 days holidays at €220 per week (rate based on 3 day week).

Decision

I have reviewed the evidence presented at the hearing and noted that no working time records were submitted by the respondent to support their position. In these circumstances I am upholding the complaint and require the respondent to pay the claimant €1,200 compensation within 4 weeks of the date of this decision.

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Dated:   5^th January 2017