Complainant

Respondent

Anonymised Parties

Butcher

Meat Processing Plant

Representatives

William Maher, Barrister,instructed by         Brendan Hyland, Solicitor

John Brennan, Ibec West Regional Director

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-00000146-001

09/10/2015

The Complainant was dismissed on 18th September 2015. The Respondent contends that the Complainant was dismissed for “walking off the line”, which is deemed an offence of gross misconduct, warranting dismissal as provided for in company/union agreements. The Complainant contends that he was dismissed for having made a protected disclosure in relation to his own health and safety.

Counsel for the Complainant made extensive written and oral submissions over a four day hearing period, summarised as follows:

Introductory Information

The Complainant is an Hungarian national who commenced employment with the Respondent on 21st October 2000. He is a qualified butcher and his net rate of pay was €420 per week.                         It is contended that in September 2015, the Complainant made a protected disclosure to the Respondent in relation to concerns he had for his health, safety and welfare at work as a result of injuries he sustained in the course of his employment. It is submitted that the Respondent did not wish to deal with these concerns and instead, removed the Complainant from his employment without proper process or true justification. It is submitted that the Complainant was dismissed as a result of having made a protected disclosure within the meaning of the Protected Disclosures Act 2014. Furthermore, the Complainant’s dismissal was unfair within the meaning of the Unfair Dismissals Act, as amended. It is submitted that on 9th October 2015, the Complainant obtained an Interim Relief for reinstatement/reengagement in his employment from the Circuit Court. This was subsequently revoked on 29th October 2015. The Judge in the case declared that she was satisfied that the Complainant had made a “protected disclosure” but that she was not satisfied that the protected disclosure was the main reason for the Complainant’s dismissal as he had “walked off the line”. That decision was appealed to the High Court but with the consent of both parties was struck off with no order for costs. It should be noted that the only reason there was agreement to strike out was because the WRC hearing was imminent.

Continuity of Service

Counsel for the Complainant argued that the “Compromise Agreement” signed by the Complainant should be rendered null and void for the reason that he was not aware of the true nature of that agreement. Section 13 of the Act was quoted in support of that argument. Also case law was cited (Hegarty v Agra Ltd UD 822/1984, Hurley v Royal Yacht Club [1997] E.L.R. 225).

The Respondent contends that the Complainant signed a new 12 week contract on his return to work.   The Complainant denies that the signature on that contract is his and that he only became aware of that document during the legal proceedings. It is submitted that the Complainant was subject to an ongoing, continuous contract notwithstanding the four week break in his employment.

Protected Disclosure

It is argued that the true reason for the Complainant’s dismissal was because he made a complaint thereby highlighting deficient health and safety practices on the meat boning line. On various dates, and especially on 15th and 18th September 2015, the Complainant protested against injuries he had sustained in the course of his work. He complained to his Supervisor, to the Health and Safety Officer and to the HR Manager and the Operations Manager. By the HR Manager’s admission, the Complainant was considered a “high risk” individual given his previous personal injuries claims brought against the factory. It is argued that the Respondent decided against allowing any fair procedures or due process so as to properly ascertain the facts about the Complainant leaving the line to seek help.  Legal submission was made as to the following provided for in the Protected Disclosures Act 2014, summarised as follows:

1.       It is automatically presumed to be a protected disclosure until the employer proves otherwise

2.       There is no minimum service requirement

3.       There is no set manner of making a protected disclosure

4.       A breach of any person’s health and safety in the workplace is entirely a relevant wrongdoing

5.       The maximum compensation for dismissal as a result of having made a protected disclosure is 5 years salary.

It is submitted that the Respondent failed to comply with its own disciplinary procedures or the statutory norms of a disciplinary process as provided for in SI 146 of 2000 in that:

The complainant was not advised that he was being subjected to a disciplinary hearing, was not advised that he faced the prospect of summary dismissal and was not given any right of appeal Frizelle v New Ross Credit Union, unreported 30th July 1997 sets out the basic premises which must be established to support the decision to terminate employment for misconduct.

In summary, it is contended that the Complainant was dismissed unfairly for having made a protected disclosure and that fair procedures were not followed in dismissing him.

The Respondent’s Representative made extensive written and oral submissions over a four day hearing period, summarised as follows:

The Respondent outlined the situation in relation to the Complainant’s application for interim relief and noted that having heard the Respondent in the matter the Judge in the Circuit Court refused the relief. The appeal to the High Court was withdrawn. The Affidavits sworn are submitted to assist in the hearing in the instant case.

The Complainant was dismissed for “walking off the Line” which is considered an action of gross misconduct that merits summary dismissal. This sanction was historically agreed with the Complainant’s trade union and has been consistently applied.    

Continuous Service

The Complainant first commenced employment on 21st October 2000. In or around May 2015, the Complainant advised the Human Resources Manager of his intention to travel to the Netherlands to explore new opportunities. He advised that he was resigning from the employment but wanted compensation for an alleged injury in February 2013. In light of the Complainant’s 15 years service and his stated intention to leave Ireland and set up elsewhere, the Respondent offered a sum of €4,500 in full and final settlement of all claims arising from his employment.   The Complainant had ample time to discuss this with his trade union representative or obtain legal advice. He signed a leaver form and his employment ceased on 2nd June 2015 and a P45 was issued to him.                       In or around early July 2015 the Complainant returned to the Respondent and advised that his plans had not worked out, and he wished to return. The Respondent reviewed staffing needs and offered the complainant a 12 week contract which he accepted. The Complainant advised he was fit to return to work and that previous shoulder complaints had been addressed. The Complainant signed the contract on 6th July 2015 and commenced work.  

There are two issues to be considered in this case:

1.       Continuous Service in the context of the right to avail of the provisions of the Unfair Dismissals Acts which provide that an employee must have one year’s continuous service except in certain circumstances.

2.       Section 2 of the Unfair Dismissals Act 1977 as amended which includes having made a protected disclosure as providing an exception to the rule that dismissed employees are precluded from bringing a claim if they have less than one year’s continuous service and Section 6 (2) (ba) of the amended Unfair Dismissals Acts which provides that the dismissal of an employee shall be deemed to be an unfair dismissal if it results wholly or mainly from one or more of the following: “the employee having made a protected disclosure”.

Should I find that the Complainant’s service was continuous, he is entitled to bring his complaint of unfair dismissal in it’s entirety. Should I find that his service with the Respondent was not continuous and that he does not have the required one year to avail of the Act, I will decide whether he can avail of Sections 2 and 6(2) (ba).

Continuous Service

The Minimum Notice and Terms of Employment Act First Schedule provides the definition of continuous service for the purposes of the Unfair Dismissals Act 1977 as follows:

“The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by:

-          The dismissal of the employee by his employer, or

-          The employee voluntarily leaving his employment”.

Based on the evidence and submissions, and the Complainant’s own evidence, I find that the Complainant voluntarily left his employment on 2nd June 2015.   There was some contradictory evidence regarding the signing of the ‘compromise agreement’ and the Leaving form.   However, I am satisfied that the Complainant voluntarily entered into this Agreement and left his employment to pursue another opportunity abroad. When that did not work out, he sought and received employment again with the Respondent. The date of service of his employment therefore in this case is from 6th July to 18th September 2015 and he does not have the required one year’s continuous service to avail of the Act. I therefore find that the Complainant does not have the required service to pursue his claim in normal circumstances under the Act.

The issue for consideration then remains as to whether the Complainant qualifies in the exceptional circumstance of having made a protected disclosure.

Protected Disclosure

An employee having made a protected disclosure provides an exception to the rule that dismissed employees are precluded from bringing a claim if they have less than one year’s continuous service.

Section 11 (1) (b) of the Protected Disclosures Act 2014 amends the Unfair Dismissals Act 1977 by inserting Section 6 (2) (ba) into section 6 of that Act rendering the dismissal of an employee to be an unfair dismissal if it results wholly or mainly from “the employee having made a protected disclosure”

The Protected Disclosures Act 2014 is a relatively new piece of legislation with a dearth of case law to be relied upon in making findings and conclusions. I note that the Description of the Act provides:

“An Act to make provision for and in connection with the protection of persons from the taking of action against them in respect of the making of certain disclosures in the public interest and for connected purposes”.

The Act provides for broad definitions of what constitutes protective disclosures. The Complainant relies on Section 5 of the Act in support of his case.

Section 5 of the Act provides:

“5. (1) For the purposes of this Act ‘protected disclosure’ means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of passing of this Act) made by a worker in the manner specified in section 6,7,8,9,or 10.

(2) for the purposes of this Act information is ‘relevant information’ if –

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.

(3) The following matters are relevant wrongdoings for the purposes of this Act –

(a) that an offence has been, or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or any other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,..

The Complainant relies on section 5 (3) (d) to support his argument that he made a protected disclosure.   I have considered the submissions and evidence made in this case and I find that the Complainant did make complaints about pain he was experiencing while working on the line in and around 18th September 2015. However, the question to be addressed is did this constitute a protected disclosure or was it a workplace grievance?

Statutory Instrument S.I. 464 of 2015 clarifies the difference between a grievance and a protected disclosure as follows:

“30. A grievance is a matter specific to the worker i.e. that worker’s employment position around his/ her duties, terms and conditions of employment, working procedures or working conditions. A grievance should be processed under the organisation’s Grievance Procedure.

A protected disclosure is where a worker has information about a relevant wrongdoing”.

The S.I. clarifies many aspects of ‘whistleblowing’ and recommends that organisations should have a ‘Whistleblowing Policy’. It states the importance of workers understanding the distinction between a protected disclosure and a grievance. In this case I find that the Complainant sought to ‘retrofit’ a claim of protected disclosure/whistleblowing to the predicament in which he found himself.

I note the evidence of the Manager who stated that the Complainant told him at the time of the incident that he was in trouble – that he walked off the line.

Based on the evidence and submissions, I find that the Complainant was dismissed for ‘walking off the line’ which is a gross misconduct offence in that employment.   The employment is highly unionised with company / union agreements and grievance and disciplinary procedures and I find that the grievance the Complainant had around seeking to be transferred to other duties was a workplace grievance which should have been processed by him through procedures. I do not find that he can rely on the exception to the one year’s continuous service or Section 6 (2) (ba) of the Unfair Dismissals Act 1977 as amended.

Continuous service.

Protected Disclosure.