Complainant

Respondent

Anonymised Parties

A Supervisor

A Seafood Processor

Representatives

Tiernan Lowey (BL) instructed by                               Wilkie & Flanagan Solicitors  

Peninsula Business Services (Ireland) Limited

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-00005042-001

07/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00005042-002

07/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00005042-003

07/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007

CA-00005042-004

07/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00005042-005

07/06/2016

The Complainant was employed from the 26th January 1998 to the 13th April 2016. The Complainant held several roles with the respondent since the beginning of his employment. On the termination of his employment he worked as a pre-pack supervisor.

He filed complaints with the WRC on the 7th June 2016, alleging breaches of the following employment legislation:

·         Section 8 of the Unfair Dismissals Acts, 1977 - 2015

·         Section 27 of the Organisation of Working Time Act

·         Section 7 of the Terms of Employment (Information) Act, 1994

·         Schedule 6 of the Consumer Protection Act, 2007

·         Section 79 of the Employment Equality Acts, 1998 – 2015

The Complaint filed under Section 79 of the Employment Equality Acts 1998 – 2015 was withdrawn by the Complainant’s Representative.

The Complaint filed under Schedule 6 of the Consumer Protection Act, 2007, was not progressed by the Complainant’s Representative as it was filed in error.

Introduction

The Complainant claims that he was constructively dismissed by the Respondent when he was forced into tendering his resignation on or around 13th April 2016. The Complainant’s decision to resign was made in circumstances where the Respondent had acted in repudiatory breach of contract and/or acted unreasonably towards the Complainant so as to entitle a reasonable employee in his position to terminate his own employment, with or without notice. Further, the Complainant submits that the circumstances of his constructive dismissal constitute a dismissal for the purposes of the Protected Disclosures Act 2014 to 2015 and/or the Unfair Dismissals Acts 1977 to 2015.

In addition, the Complainant claims that he was required to work in excess of the hours legally permissible and in breach of the Organisation of Working Time Act 1997. The Complainant also claims that he was not notified in writing of changes to his terms of employment contrary to the Terms of Employment (Information) Act 1994.

Background

The Complainant’s final position with the Respondent was as a pre-pack supervisor. During his time with the Respondent, however, the Complainant occupied a number of different roles.

The Complainant commenced employment with the Respondent on the 26th January 1998 as a driver; in 2005, he was promoted to the role of salesman; in 2008, he was made a director of the Respondent and promoted to the role of factory manager. He was asked to resign as director in 2010 without any or any adequate explanation. In May 2014, he was demoted from to the position of factory manager to that of office manager, a move which came one month after he had lodged a bullying complaint about Mr. JM, one of the members of the M family who own the Respondent company.

In October 2014, the Respondent’s head of operations resigned and the Complainant was made head of operations. In March 2015, the Complainant was instructed to train in a new head of operations on the express understanding that he would thereafter be provided a senior role in sales. While, the new head of operations was installed in July 2015, the Respondent, without explanation, reneged on its promise to provide the Complainant with a sales position. Instead, the Respondent decided to demote the Complainant to the role of pre-pack supervisor.

As pre-pack supervisor, the Complainant was required to work unsocial hours. His typical basic hours were usually from 4am to 2pm and he was also required to work additional overtime hours. The Complainant was forced into making a series of complaints about his conditions of work and the manner in which his position in the company was being eroded and undermined. On foot of his complaints and by way of apparent placation, he was told by the Respondent that by January 2016 he would be provided a role more suitable to his experience and seniority.

The Complainant claims that his constructive dismissal arose as a result of the Respondent’s conduct and repudiatory breach of contract. He also maintains that these matters arise in the context of his making disclosures to his employer concerning the Respondent’s failure to adhere, inter alia, to EU labelling laws for fish products. The Respondent denies that it acted in breach of EU labelling laws. It is therefore necessary to set out the relevant law in this regard before going on to consider the Complainant’s disclosures, the related disciplinary process and the circumstances leading to his decision to terminate his own employment.

Law concerning labelling of fish and fishery products

European law

The law in relation to the labelling of fish products is primarily to be found in a series of European regulations, which are binding in their entirety and have immediate application. Domestically, there are also a series of Irish statutory instruments, which both formally implement these regulations and put in place mechanisms by which their application can be policed.

The starting point is Council Regulation (EC) No 1224/2009, which established an EU- wide control system for ensuring compliance with the rules of the common fisheries policy. A subsequent regulation, Commission Implementing Regulation (EU) No 404/2011, laid down the rules for implementing this control system.

These regulations, which address the common organisation of the markets in fishery and aquaculture products (hereinafter “the CMO rules”), are product-specific rules and provide additional rules over and above the general rules on the provision of food information and labelling to the consumer contained in Regulation (EU) No 1169/2011 (commonly known as ‘FIC’), which the Respondent purports to rely on in the instant case.

Labelling laws involves both mandatory and voluntary requirements on the part of persons, both legal and natural, involved in the sale or supply of fish products. The CMO rules require the provision of additional mandatory information on the labelling of fishery and aquaculture products. Article 68(3) of the Commission Implementing Regulation (EU) No 404/2011 specifically provides that:

“Where a fisheries or aquaculture product has been previously frozen, the word ‘defrosted’ shall also be indicated on the label or appropriate mark referred to in paragraph 1. The absence of this wording at retail level shall be considered as meaning that the fisheries and aquaculture products have not been frozen beforehand and later defrosted.”

Article 68(4) of the Regulation contains a list of derogations from this requirement, which derogations, it is submitted, do not apply in the instant case.

In addition to the above Regulations, Article 35 of a further Regulation (EU) No 1379/2013 sets down the mandatory labelling requirements for the vast majority of fishery and aquaculture products marketed within the European Union, irrespective of their origin. The regulation stipulates that such products “may be offered for sale to the final consumer or to a mass caterer only if appropriate marking or labelling” (emphasis added) are indicated. Article 35(1)(d) specifically provides that the label must indicate “whether the product has been defrosted.”

In the instant case, the Respondent was responsible for the preparation and packaging of fish fillets for sale to the final consumer in, amongst other locations, a customer supermarket. The relevant annex in the legislation tells us that “fish fillets and other fish meat (whether or not minced), fresh, chilled or frozen” are covered by the rules (CN code 0304).

The Regulation lists certain exceptions to this rule which exceptions, it is submitted, have no application in the instant case.

During the course of the instant hearing, the Respondent gave evidence that in its view it was not bound by the strict labelling laws in relation to defrosted fish concerning their products. In so asserting, the Respondent purported to rely on one of the exceptions to the rules in relation to labelling of defrosted foods contained in the general rules concerning the provision of food information set out in FIC. Specifically, the Respondent maintained that the requirement to designate as ‘defrosted’ on foods that have been frozen before sale did not apply to “foods for which the defrosting has no negative impact on the safety or quality of the food.”

With respect, this argument is entirely misconceived. It is submitted that the Respondent cannot rely on any such exception as no such exception is contained in the product- specific regulations dealing with the mandatory labelling requirements fish aquaculture products contained in the later Regulation (EU) No 1379/2013, detailed above.

Article 35 also requires information in relation to “the area where the product was caught or farmed, and the category of fishing gear used in capture of fisheries.”

It will be noted that, in addition to the disclosures in relation to the deliberate unlawful use of defrosted fish, the Complainant made protected disclosures about the deliberate use of fish that was too old and product that was weighed less than the amount stated on the products’ labels.

The FIC rules contain the mandatory information required to be displayed on food generally. Of particular note, in the context of this case, are Articles 9(1)(e) and (f), which provide respectively, inter alia, that “the net quality of the food” must be displayed and that “the date of minimum durability or the ‘use by’ date” must also be displayed. Article 23 provides that the net quantity of food weighed by mass must be expressed using kilograms or grams. Article 24, which deals with foods that have been frozen, provides, inter alia, that in relation to “foods which, from a microbiological point of view, are highly perishable and are therefore likely after a short period to constitute an immediate danger to human health, the date of minimum durability shall be replaced by the ‘use by’ date. After the ‘use by’ date a food shall be deemed to be unsafe.”

Article 10 lists additional mandatory particulars required of specific types or categories of food, including “frozen unprocessed fishery products” must display “the date of freezing or the date of first freezing in cases where the product has been frozen more than once, in accordance with point (3), which requires that the date of freezing shall be indicated preceded by the words ‘Frozen on ….’, the date itself or a reference to where the date is given on the labelling and “the date shall consist of the day, the month and the year, in that order and in uncoded form.”

Domestic law

Domestically, S.I. No. 121 of 2016 was introduced for the purpose of giving effect to Chapter IV of Regulation (EU) No 1379/2013 which contains the rules regarding consumer information. Regulation 4 therein provides that in relation to mandatory information:

“a person shall not place on the market any fishery or aquaculture product in contravention of Article 35(1), (2) or (3) of Regulation 1379/2013 in relation to mandatory information to be indicated to the final consumer or mass caterer.”

Regulation 9 deals with procedures for compliance with the rules. Regulations 14 and 15 address the nature of various offences associated with non-compliance (including non- compliance with Regulation 4) and prosecution powers of the relevant authorities.

In circumstances where the failure to label the fish in accordance with the established labelling laws, it is submitted that the disclosures constituted protected disclosures.

Constructive dismissal, the Unfair Dismissals Acts and protected disclosures

The Unfair Dismissals Act 1977, as amended, contemplates three distinct types of dismissal. In addition to terminations of the contact of employment by the employer, the legislative definition of dismissal includes terminations of the contract by the employee (otherwise known as a constructive dismissal). The relevant definition covers such dismissals:

“whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

It is respectfully submitted, based on the facts adduced at the hearing of this matter, that the Complainant was entitled and/or it was reasonable for him, to terminate his contract of employment with the Respondent. The evidence demonstrates that the Respondent acted in breach of contract, in breach of statute and/or conducted itself in a matter warranting the Complainant’s decision reasonably to terminate his contract of employment. Further, it is submitted that the Complainant’s trust and confidence in his employer, a necessary element of any employment contract, had irretrievably broken down in circumstances where, inter alia:

a)       the Respondent repeatedly failed, refused and/or omitted, to investigate a series of disclosures raised by the Complainant;

b)      the Respondent penalised the Complainant for raising the said protected disclosures by, inter alia, instituting a bogus and grossly unfair disciplinary process which led to an unfair disciplinary sanction, which thereafter led to an unfair appeals process;

c)       the Respondent failed to adhere to the provisions of its own employee handbook in carrying out the related investigation, disciplinary hearing and appeal, which resulted in the said sanction being issued and upheld;

d)      the Respondent sought to scapegoat the Complainant for the supply of poor quality product to a customer, which was rejected by a customer, in circumstances where the Respondent, its board members and senior members of management, were responsible for the supply of same and knew the real reason for the product’s poor quality and therefore its rejection;

e)      the Respondent deleted text messages from the Complainant’s mobile phone and thus sought to deprive the Complainant of relevant evidence in support his protected disclosures; and

f)        by deleting the Complainant’s entire record of text messages, the Respondent breached the Complainant’s rights to privacy and dignity in the workplace, regardless of whether or not the phone had been originally provided to the Complainant by the Respondent.

Protected Disclosures Act 2014

Section 11 of the Protected Disclosures Act 2014 specifically protects employees from dismissal for having made a protected disclosure. The same section amends the Unfair Dismissals Act 1977 such that the dismissal of an employee shall be deemed to be an unfair dismissal “if it results wholly or mainly” from “the employee having made a protected disclosure.” In circumstances where an employee’s dismissal (including constructive dismissal) arises as a result of making a protected disclosure, both an adjudication officer and the Labour Court is empowered to make compensation awards of up to 260 weeks.

Under Irish law, an employee is therefore protected against dismissals arising from protected disclosures pursuant to the Unfair Dismissals Acts and is also protected against penalisation for having made a protected disclosure.   Penalisation for the purposes of the Protected Disclosures Act 2014 is defined under section 3 therein as:

“any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(a)    suspension, lay-off or dismissal,

(b)    demotion or loss of opportunity for promotion,

(c)     transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d)    the imposition or administering of any discipline, reprimand or other penalty

(including a financial penalty),

(e)    unfair treatment,

(f)      coercion, intimidation or harassment,

(g)    discrimination, disadvantage or unfair treatment,

(h)    injury, damage or loss, and

(i)      threat of reprisal.” [emphasis added]

It is respectfully submitted that a consideration of the facts shows that the Respondent penalised the Complainant for the purposes of the 2014 Act.

Section 5 of the Protected Disclosures Act 2014 details the circumstances in which a disclosure will fall to be regarded as protected disclosures for the purposes of the Act. This relates to the disclosure of information which both came to the worker’s attention in connection with his employment and in respect of which the worker reasonably believes tends to show one or more relevant wrongdoing. Section 5(3) lists examples of such wrongdoing as including:

-          that an offence has been, is being or is likely to be committed,

-          that a person has failed, is failing or is likely to fail to comply with any legal obligation,

-          that the health or safety of any individual has been, is being or is likely to be endangered and

-          that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

It is respectfully submitted that the information provided by the Complainant in the context of both the initial and subsequent disclosures described below engages one or more of these four examples of relevant wrongdoings. Indeed, there is a statutory presumption that any such disclosures are protected disclosures, until such time, if at all, as the contrary is proved.

The Disclosures

Initial disclosures

Following the appointment of Mr. VB to the role of head of operations, the Complainant became concerned about a number of practices within the factory concerning product which fell short of expected quality, labelling, safety and ethical standards.

The Complainant raised his concerns on two separate occasions with the Respondent, initially in November 2015 and then again in January 2016, the precise details of which have been provided by the Complainant in oral evidence. In essence, the Complainant disclosed to the Respondent the following matters that were now occurring in the factory:

a.      the deliberate use of defrosted salmon as fresh salmon being passed off to customers as fresh and not labelled as defrosted;

b.      the deliberate use of mackerel which was too old when leaving the factory; and

c.       the deliberate packaging of product that weighed less than the amount stated on the products’ labels.

These practices represented grave and serious departures from domestic and European food safety standards and laws, including fish safety guidelines and labelling laws. By raising these matters with the Respondent, the Complainant sought to invoke the company’s whistleblowing policy.

Following the making of these three disclosures, the Respondent took no steps to put an end to these illegal practices. Indeed, in breach of contract and, in particular, the Respondent’s whistleblowing policy contained in the Employee Handbook, the Respondent failed to carry out any inquiry into the Complainant’s protected disclosures.

In or around January 2016, despite his stated concerns, the Complainant was directed by senior management to keep staff on the line for an additional two hours every day in order to freeze salmon in advance of its use for Easter to ensure that it was able to meet the orders under its supply contract with a customer. In so doing, the Respondent was deliberately freezing product which it knew would be defrosted at a later stage to be sold and labelled illegally as fresh product.

On or around the time of filling the customer order in March 2016, the Complainant was directed by the Respondent to manipulate the weight of product by putting smaller portions into packages which had pre-printed product sleeves to pass them off as being heavier than their actual weight, contrary to EU rules in relation to the display of a product weight. Specifically, the Complainant was told to set the average weight of a product to 235g when the labelling specifically provided that the average weight of the product would be 240g.

The Complainant complied with the directions of his seniors in circumstances where it was clear to him that to disobey his instructions would jeopardise his continued employment with the Respondent. This caused the Complainant considerable stress and anxiety.

Subsequent disclosures

On or around 3rd March 2016, the Complainant was directed to use the aforementioned defrosted salmon that had been deliberately frozen earlier that same year to meet the customer Easter order. Once again, the Complainant complied with these directions notwithstanding his grave concerns about this practice.

On the following afternoon, on the 4th March 2016, after a very long early morning shift, the Complainant was called, without notice, to a meeting which was attended by Mr. DM, managing director, and Mr. VB, head of operations. Both men confronted the Complainant about the appearance of the product which had been rejected by the customer “due to pale colour and seeping cloudy liquid.”   The products in question were labelled as ‘fresh salmon fillets’ to be used by 9th March 2016. The order, which was partially rejected by the customer, had contained the salmon that had been frozen earlier in the year to meet the increased demand from a customer for Easter. According to an internal customer QC Check Report, out of a total 365 cases, a total of 108 were returned. Therefore, in total, approximately 5,000 salmon fillets were returned on this basis.

During the said meeting, the Complainant was accused by the Respondent, its servants or agents, of permitting product to be supplied to a customer which was of a poor visual appearance. The Respondent made no reference to the fact that the delivery had been made up in part of the controversial defrosted salmon. The Complainant was immediately concerned by the Respondent’s response to the rejected product as it became apparent that the company intended to scapegoat him for something that had resulted from specific and unlawful company directions to pass off defrosted salmon as fresh salmon. The Complainant asked to speak with Mr. DM in private. Mr. VB left the room and the Complainant disclosed to Mr. DM (who had, in fact, given the initial instruction to freeze the salmon for the customer order) that he had been directed to use defrosted salmon. Notwithstanding Mr. AM’s early role in this unlawful enterprise, it is submitted that that this event constituted a protected disclosure.

Despite his protestations, the Complainant was suspended following this meeting on the purported grounds that he was unable to provide an immediate explanation for the release of a product which appeared to be of poor quality. Notwithstanding the fact that the Respondent was deliberately ignoring the real issue – that defrosted salmon was labelled for sale as fresh salmon – and seeking to fabricate a bogus disciplinary issue – the release by the Complainant of product that looked of poor quality – the Complainant was at this time both mentally and physically exhausted. The Complainant oral evidence at the hearing of his state of mind during the meeting on the 4th March 2016 which followed particularly intensive period of work and in respect of which he was given no notice.

By email dated 5th March 2016, the Complainant wrote to Mr. AM, director of the Respondent, setting out, inter alia, his concerns about the unlawful practices by the company and other ‘cowboy’ directions of Mr. VB, head of operations. Specifically, the Complainant again made disclosures to the Respondent, its servants or agents, concerning:

a.      the deliberate use of defrosted salmon as fresh salmon being passed off to customers as fresh and not labelled as defrosted;

b.      the deliberate use of mackerel which was too old when leaving the factory;

c.       the deliberate packaging of product that weighed less than the amount stated on the products’ labels; and

d.      the deliberate use of salmon from the Faroe Islands in circumstances where the Complainant understood the customer to have specified that its salmon originate from Scottish or Norwegian waters.

The Complainant advised Mr. AM that everyone in the factory knew that the salmon that had been returned by the customer was the defrosted salmon that had been previously put aside for the specific purpose of ensuring it met the customer Easter order. The Complainant reminded Mr. AM that this was the reason for the product’s poor visual appearance and stated that this too was known by the Respondent, its servants or agents. The Complainant stated that he had no alternative but to comply with the directions of management in this regard. He informed Mr. AM that he would have to raise these concerns in order to defend himself at a meeting scheduled to take place on Monday, 7th March 2016, but stated that he was concerned about the security of his job in doing so.

The Complainant said he felt he was being scapegoated by the Respondent for these unlawful acts.

The Complainant also informed Mr. AM in this email that he was in possession of a text message which could provide definitive proof of at least one of the above listed disclosures, namely, that he had been directed by the Respondent to send out underweight product.

It is submitted that the information provided by the Complainant in his email to Mr. AM contains a series of disclosures about relevant wrongdoings which constitute protected disclosures for the purposes of the Protected Disclosures Act 2014. However, like before, in breach of contract and statute, the Respondent took no steps to investigate or respond to the Complainant’s protected disclosures.

Unfair disciplinary process

Instead, following these events, the Complainant was subjected to a grossly unfair disciplinary process characterised by its abject failure to adhere to the basic precepts of fair procedure, natural justice and a series of specific procedural safeguards to which he was entitled pursuant to his contract of employment. It is respectfully submitted that the treatment to which the Complainant was subjected in this regard in and of itself constitutes conduct and/or repudiatory breaches of contract warranting an employee in such circumstances reasonably to terminate their own employment.

The Complainant was not only given no notice of the meeting on the 4th March 2016 but was never informed at any material time that the meeting was intended to constitute an investigation meeting for the purposes of the Respondent’s disciplinary procedures. Indeed, the decision to render this meeting a disciplinary investigation meeting was made by the Respondent after the fact. Accordingly, the Complainant was never advised that the meeting on the 4th March 2016 was an investigation until he was invited to attend the next stage in the process, the disciplinary hearing.

In relation to investigations, the Respondent’s employee handbook provides:

a.      That the purpose of the investigation meeting would be to establish the facts;

b.      That details of the investigation would remain completely confidential;

c.       That the investigation would be carried out by a designated member of the management team;

d.      That, where there was any possible conflict of interest, the investigation would be carried out by an agreed external third party;

e.      That the person nominated to carry out the investigation would have appropriate training and experience and be familiar with the procedures involved;

f.        That the investigator would meet with the employee individually;

g.      That the investigation would be carried out as quickly as possible; and

h.      That temporary suspensions may be necessary but only to ensure that an uninterrupted investigation can take place.

It is submitted that the Complainant was denied each of these contractual safeguards. Perhaps most egregiously, the Respondent appointed Mr. DM as the person to carry out the investigation. As managing director, Mr. DM was the most senior member of the Respondent’s management team. Furthermore, in circumstances where Mr. DM had given the initial instructions to freeze salmon stock in anticipation of the customer Easter order, he was clearly conflicted and incapable of addressing the issues from a position of impartiality. It also became apparent at the hearing of this matter, and during the course of Mr. DM’s cross-examination, that he had no training or experience in carrying out investigations, again contrary to the handbook’s explicit commitments in this regard.

The meeting on the 4th March 2016, which the Respondent labelled an ‘investigation meeting’ ex post facto was attended not only by Mr. DM and the Complainant but also by Mr. VB, another party who was clearly implicated in the unlawful enterprise leading to the rejection by a customer of the Respondent’s product. In this regard, contrary to the handbook, the investigator failed to meet with the employee on an individual and confidential basis.

The Respondent failed to provide any or any adequate explanation as to why the Complainant’s suspension was necessary. In particular, no efforts were made to show that it was necessary, as required in the handbook, to ensure that an uninterrupted investigation could take place. Recent rulings of the superior courts in this regard suggest that employers must have very strong grounds for suspending employees in such circumstances given the potential such a measure has to damage a person’s reputation.   Furthermore, employees should be given all reasonable opportunity to make submissions to resist any decision to suspend. This too was denied the Complainant. In addition, the Complainant was denied a right of legal representation in the context of an investigation which had serious implications for his future and reputation.

While the Respondent’s disciplinary procedures clearly contemplate two separate processes – an investigation and then, where warranted, a disciplinary hearing – it contains no details in relation to the procedures for a disciplinary hearing. In the absence of same, it is submitted that the basic guidelines contained in SI146/2000 are usually applied as representing a minimum level of procedural fairness expected to be applied by an employer. It is submitted that the Respondent failed to apply these basic safeguards.

The Complainant was denied all fair procedure in the context of the disciplinary hearing. The allegations were not clearly put before him. The letter dated 8th March 2016 from the Respondent to the Complainant, which invited him to a disciplinary hearing, raised for the first-time new matters – failure to devote his attention and abilities to the business and possible adverse publicity and loss of money to the company – which had not formed any part of the initial meeting on the 4th March 2016. This meant that the Complainant was denied a fair right of reply or adequate time to prepare a proper defence.

By email dated 11th March 2016, the Complainant wrote to Mr. DM setting out his position in response to the proposed disciplinary hearing due to take place later that day. In this email, the Complainant expressly refers to his earlier disclosures as constituting protected disclosures pursuant to the Protected Disclosures Act 2014. He raises his concerns about the Respondent’s decision to request his company mobile phone and the subsequent deletion of his personal messages. He also sought confirmation that the Respondent had notified the customer of the health and safety issues associated with packaging defrosted products and labelling them as fresh.

At the subsequently disciplinary hearing later that day, when asked if he had seen the Complainant’s email, according to the Respondent’s note of the meeting, Mr. DM said “I didn’t get a chance to go through it in detail. I just scanned it.” In fact, the Complainant never received any response from the Respondent, its servants or agents, in relation to the matters raised in his email. The same meeting note depicts a hearing characterised by repeated efforts on the part of Mr. DM to exact exculpatory evidence from the Complainant as opposed to conducting a fair and impartial hearing.

Despite a number of interventions by the Complainant and his solicitor identifying in clear terms the grave flaws in the Respondent’s disciplinary process, the Respondent persevered with this unfolding farce, choosing to carry on regardless thus failing to engage or address in any meaningful way the many concerns raised by or on behalf of the Complainant.

The person tasked with carrying out the disciplinary hearing was, once again, Mr. DM.   Mr. DM had been instrumental in the original direction to the Complainant in January 2016 to freeze salmon so that it could be used for the customer Easter order and sold as fresh salmon. Furthermore, Mr. DM had chaired the meeting on the 4th March 2016, in respect of which the Complainant had no notice which was deemed an investigation meeting nevertheless. The decision to appoint Mr. DM to conduct the disciplinary hearing represented a fundamental departure from fair procedure and, in particular, the nemo iudex in causa sua principle. Mr. DM was actually or, in the alternative, objectively biased on the facts and incapable of producing a fair result.

This bogus disciplinary process culminated in the Respondent’s decision to issue the Complainant with a final written warning lasting 12 months on his file on the purported grounds that he had permitted product of a poor appearance to be supplied to a customer. In the premises, the Respondent sanctioned the Complainant for something that it knew was caused by its own unlawful acts, namely the passing off of defrosted salmon to be sold as fresh salmon. The Complainant was warned by the Respondent that any further misconduct during the 12-month period of the final warning would result in further disciplinary action.

While the Respondent purported to offer the Complainant a right of appeal, it appointed Mr. AM to hear it. Mr. AM was clearly conflicted in this case and an inappropriate selection owing to his actual or, in the alternative, perceived bias. Mr. AM had never responded to the Complainant email dated 5th March 2016 in which he had raised serious protected disclosures. Furthermore, shortly after Mr. AM was informed in that same email about the existence of text messages on his mobile phone that could damage the Respondent, the Complainant’s mobile phone was apprehended by the Respondent who thereupon deleted all text messages on it.

The Complainant’s efforts to have an independent external party appointed to hear the appeal fell on deaf ears. In fact, the entire appeals process was fatally flawed and similarly characterised by its procedural unfairness and the actual or, in the alternative, perceived bias of the party chosen to hear the appeal. It is a particularly extraordinary indictment on the Respondent’s understanding of or attitude to procedural fairness that the person who refused the request for an external appeal was the same person whose impartiality had been called into question by the Complainant. Furthermore, when this matter was raised by the Complainant, Mr. AM had written to the Complainant to say that the question of his own impartiality could be raised at the appeals hearing itself, the procedural unfairness of which needs no elaboration. The efforts on the part of the Complainant’s solicitor to have these concerns addressed were ignored by the Respondent.

In its appeal, the Respondent failed materially to address the Complainant’s grounds of appeal. The appeal was unsuccessful and its outcome amounted to a whitewash. It is a further indictment on the part of the Respondent that it failed to stand down the disciplinary process in circumstances where, by the time the appeal was heard, the Respondent had already obtained an admission by Mr. VB that he had given the Complainant the specific instructions to use defrosted salmon to be sold as fresh salmon, which had resulted in the customer’s rejection of its product.

On 6th April 2016, Mr. AM informed the Complainant that he was upholding the decision to issue him with a final written warning. By letter dated 12th April 2016, the Complainant wrote to the Respondent tendering his resignation as a result of the Respondent’s total disregard shown to him and the efforts made by his employer to make him leave his employment. By email dated 15th April 2016, the Respondent purported to invite the Complainant to raise his grievances through the company’s grievance procedures. It is submitted that the Complainant had by now lost all trust and confidence in his employer and these acts constituted lip service on the part of the Respondent. The Complainant had repeated sought to have his grievances addressed before he terminated his own employment but each of these attempts, listed above, had been ignored.

Deletion of text messages

In his email dated 5th March 2016, the Complainant notified Mr. AM and only Mr. AM, of the existence of a text message which supported his contention that he had been directed by the Respondent, its servants or agents, to manipulate the weight of product to be sold at a weight less than that stated on the product’s label. Shortly after Mr. AM had been so advised, the Complainant was for the first time ever instructed by the Respondent to hand in his mobile phone to the company. The Complainant agreed to this unusual request. Under cross-examination at the hearing, both Mr. DM and Mr. AM denied that Mr. AM had told him about the text messages. Instead, Mr. DM stated that he had requested the Complainant’s phone because two other supervisors in the company had made certain allegations about the Complainant and that evidence in relation to these allegations was contained in the Complainant’s text messages. When asked to identify the alleged complainants, Mr. DM said that he did not remember who they were. Mr. DM confirmed that there were only four supervisors at the time but that he could still not remember those two who he was now alleged had made the allegations about the Complainant which led to his seizing the Complainant’s phone and deleting its text messages. When asked whether he read the text messages, Mr. DM said that he had not done so and had simply deleted them. When asked why he had deleted the text messages, Mr. DM said he wanted to delete the evidence in relation to the allegations made about the Complainant. Mr. DM could offer no reasonable or legitimate explanation as to why he would have acted in this way. In addition, when asked, Mr. DM confirmed that no action was taken against the Complainant in respect of these alleged allegations, that Mr. DM could not recall the nature of the allegations and that these allegations had never been put to the Complainant.

It is respectfully submitted that Mr. DM’s explanation for seizing the Complainant’s mobile phone and deleting its text messages is wholly implausible and deliberately misleading. The Complainant would urge the adjudication officer to draw all necessary inferences in relation the credibility of both Mr. DM and Mr. AM arising out of same and the authenticity of their evidence.

When his phone was returned to him, all text messages on the phone (which included personal and family messages) had been deleted. This act, which was in flagrant breach of the Complainant’s rights to privacy, clearly represented an effort of the Respondent, its servants or agents, to destroy evidence of unlawful and/or inappropriate behaviour on its part. Fortunately, the Complainant had made a copy of one of the relevant text messages, a copy of which was handed to the adjudication officer.

Conclusions

It is submitted that the issues raised in these submissions not only demonstrate the impossible position in which the Complainant found himself, but they also touch upon extremely serious matters of more general public interest and, in particular the health and safety of consumers of fish products.

In this regard, it is submitted that most member of the public will be extremely troubled to learn that any supermarket, let alone one of Ireland’s leading supermarkets, was knowingly supplied by a large company with fish product to be sold to the end consumer as fresh fish when the same company knew that the product had in fact been frozen and defrosted. Indeed, no information was provided by the Respondent in relation to the customer’s state of knowledge of these matters or whether the customer had even been informed about these matters, which are of vital consumer interest and public health. Indeed, it is likely that a failure by the customer to prevent the sale of controversial salmon fillets to the end consumer could have serious implications for the customer in terms of liability for negligence and in respect of consumer law.

The laws regarding food labelling and, in particular, those relating to mandatory information to be displayed on food products, are founded on concepts of the consumer’s right to information as well as public health considerations. That these necessary and fundamental laws were so willingly flouted by the Respondent, a significant player in the supply of fish across Ireland, is a damning indictment on its character.

Regrettably, by reason of his role in the company and on foot of directions from the highest levels of management. the Complainant found himself caught up in these unlawful practices. When he sought to raise his concerns, the Respondent failed to act to change its unethical and illegal practices. When eventually the Respondent’s practices resulted in the rejection by the customer of fish product, the Respondent, its servants or agents, sought to put the blame on the Complainant. The Complainant’s efforts to resist this response and thus disclose to the Respondent information of relevant wrongdoings was met with further penalisation by the Respondent, its servants or agents.

It is submitted that the Complainant acted reasonably in terminating his own employment. In the premises, the Complainant respectfully requests that his claim for unfair dismissal be upheld.

The respondent harvests and processes quality fish products for customers throughout Ireland.

The Complainant has been employed with the respondent in several roles since 26th January 1998.

The Complainant resigned his employment on 13th April 2016 and lodged claims with the Workplace Relations Commission under the Unfair Dismissals Act 1977, the Consumer Protection Act 2007, the Employment Equality Act 1998, the Terms of Employment Information Act 1994 and the Organisation of Working Time Act 1997.

The respondent wholly refutes these claims.

Background

The Complainant commenced employment with the respondent on 26th January 1998 as a van driver. On 28th March 2006 he was promoted to the position of Sales Manager.

In August 2008 the Complainant was appointed a Director of the respondent company. In November 2012 it was mutually agreed that the Complainant resign his directorship. No board meetings were being held at this time, so the position was meaningless. There was no change in the Complainant’s terms and conditions of employment.

On 29th January 2014 the Complainant took the position of Logistics/ Office Manager. The Complainant’s performance was below par. To remedy this, on 1st April 2014 2 ½ days training was provided for the team.

Between 23rd March 2015 and 14th July 2015, the Complainant was appointed acting Operations Manager to fill in while the previous Head of Operations had left, and the respondent were recruiting a suitable candidate for the role. The Complainant showed the new Head of Operations, VB the internal workings of the company, as any new employee would be shown on commencement of a new position. VB had qualifications and more relevant experience and that made him a more suitable candidate for the role.

In August 2015 the Complainant was offered and accepted the position of Pre-Pack Supervisor, as a project to improve the efficiency of the line. He remained in that position until he resigned. This role required the Complainant to manager the line, recruit personnel, monitor quality and improve efficiency. The role required an individual of the Complainant’s experience and knowledge. It was not a demotion.

At no time was the Complainant promised a job in sales. It was however indicated that the respondent may create a Business Development role, but this was not pursued.

Between 2010 and 2016 the Complainant did not receive a reduction in pay.

Allegations

On 2nd April 2014 the Complainant made a complaint in relation to JM, the Complainant’s peer who managed the filleting line. The Complainant declined the option to pursue his complaint through the formal route and instead an external mediator was engaged. The meditation was held on 6th May 2014 and was successful as the parties reached a written agreement to assist them in moving forward.

A casual habit had developed among staff to take home a van at night. In September 2014, all employees were told that personal usage of company vehicles was no longer permitted.

In March 2015 the Complainant raised 2 further issues:

1) He took issue with the fact that he could no longer use a company van for personal use and

2) He claimed he was promised a job in sales that he was never given.

In response to these complaints the Managing Director met with 2 of the shareholders and the decision was confirmed that no employee should have personal use of a company vehicle. This outcome was explained to the Complainant. The concept of a Business Development Manager was discussed at a meeting at which the Complainant was present. The position didn’t transpire and was not promised to anybody including the Complainant.

The Complainant alleges that he was instructed to manipulate the weight of product, this allegation is vehemently denied. Evidence will be given that it is necessary to change the weight settings of the cutting and weighing machines depending on the density, shape and consistency of the specific type of fish. This is necessary to ensure that the average weight of product is above or equal to the weight on the label.

Disciplinary process

On 4th March 2016 the Complainant and VB were invited to an investigation meeting regarding the package and supply of poor quality salmon to a large customer on 3rd and 4th March. It was a core part of the Complainant’s job to ensure that all fish being supplied was of adequate presentation and quality. His opinion is the last quality check and the end of the line before the product goes to the customer. During the meeting the Complainant advised that he noticed that the fish was of poor quality but ‘packed it anyway’. The Complainant alleged that VB had been less than friendly towards him and had told him to use the frozen salmon as fresh due to a shortage of fresh salmon. The Complainant had made no previous complaints regarding VB. The Complainant was suspended on full pay. This was confirmed in a letter dated 7th March 2016.

After this meeting the Complainant sent an e-mail on 5th March 2016 outlining several complaints in relation practices in the factory. This was the first time the Complainant had raise these issues. As a result of the incident VB resigned from his employment on 7th March 2016.

By letter dated 7th March 2016 the Complainant was invited to a disciplinary to be held on 8th March. He was also provided with the evidence to be used at the disciplinary meeting.

The disciplinary meeting was held on 9th March the meeting lasted 10 minutes and was adjourned by the respondent. It was reconvened on 11th March 2016. During the meeting the Complainant admitted that although he had packed defrosted salmon before the appearance of the salmon packaged on 3rd and 4th March was paler than that packaged previously. Thus, corroborating the respondent’s position that the issue was the quality of the salmon as opposed to the fact that it was frozen.

By letter dated 14th March 2016 the Complainant was issued with a written warning. By e-mail of 15th March the Complainant appealed this decision. The appeal process was a de novo hearing and investigation, meetings were held. on 21st March an investigation meeting was held with VB. The appeal meeting was held on 30th March. The meeting was adjourned to enable clarification of instruction regarding salmon available. During the appeal meeting, for the first time the Complainant stated that FM instructed him to use frozen fish, previously he had advised that it was VB.

The appeal meeting was reconvened on 4th April 2016. By letter of 6th April 2016 the Complainant was advised that the issuance of the written warning was being upheld.

By letter dated 13th April 2016 the Complainant confirmed he was resigning. The respondent asked the Complainant to reconsider and offered him the grievance procedure.

The Complainant responded advising that he wished to ‘commence proceeding for the termination by you of my employment’.

By letter dated 26th April the respondent advised that PM, chairman of the board had been arranged to hear his grievance, should he wish to avail of this. No response was received and the Complainant’s P45 was issued.

The respondent’s position is that there had been a shortage of salmon on several occasions before the situation was not exceptional given that deliveries of fish are dependent upon inter alia weather conditions. On these occasions the fresh fish was apportioned between the customers, meaning that each customer received less than the amount they had requested. Had the situation been handled in the normal manner regarding shortages on Thursday 3rd March the fresh fish would have been apportioned amongst the customers. In addition, the respondent took a delivery of 2,239.40kg of whole fresh salmon on Thursday at 2pm. The delivery was late as normal delivery is in the early hours of the morning. The filleters were brought in early on Friday 4th March to process the delivery. This delivery was available to fulfil the pre-pack order on Friday 4th March.

The Complainant was not sanctioned for using frozen fish, he was sanctioned for using sub- standard fish. Frozen salmon can be of equal quality to that of fresh. The Complainant had previously reject fish due to poor quality – both fresh and frozen.

VB accepted responsibility for the use of frozen fish and resigned over the matter.

Consumer Protection Act 2007

The first time the Complainant raised any issues regarding practices in the factory was on 5th March, after he had been suspended.

Terms of Employment Information Act 1994

It is admitted that the Complainant did not received a Statement of Main Terms and Conditions of Employment within the requisite time frame. The Complainant was given a Statement of Main Terms and Conditions of employment and acknowledged receipt on 28th March 2006. He received an Employee Handbook on the same date.

The Complainant received a job description outlining his duties as acting Operations Manager, this was signed in May 2015.

At no time did the Complainant request a Statement of Main Terms and conditions of Employment. It is submitted that any award made in respect of this breach on the part of the respondent should be nominal.

The Law

In the case of Irish Water v Patrick Hill (TED161) the Labour Court noted that the employee did not suffer any monetary loss of any other form of material detriment or prejudice as a result of the technical breaches and that his claim was based solely on the fact that the contract was non-c compliant and they stated that

“These claims are wholly devoid of any substantive merit…it should be emphasised that compensation, if any must be within the bounds of what is fair and equitable having regard to all the circumstances. On any reasonable view, even if those complaints herein were well founded in the technical sense, the dictates of fairness or equity could not justify an award of compensation in the circumstances of this case.”

Organisation of Working Time Act 1997

The Complainant has alleged he works excessive night hours starting at 4am and finishing at 2pm.

The respondent refutes this allegation. The Complainant worked 4am to 2pm 5 shifts per week.

In or about late February 2016 the Complainant raised an issue regarding starting too early in the morning, he was advised that there was no requirement for he to start as early as he had. The Complainant was further advised that as Pre-pack Supervisor he had authority to set the start time for the team. On foot of this complaint Mr. DM, Managing Director called a meeting and it was agreed that the team would start at the later time of 6am and finish at 4pm each day, expect for Monday when the company required as 4am-2pm shift.

The Complainant never raised an issue in relation to breaks, he received a ½ hour paid tea break and a 1-hour unpaid lunch break each day.

As outlined above the Complainant received a hand book and Statement of Main Terms and Condition of employment detailing his break entitlements.

The Respondent submitted a summary of the timesheets worked by the Complainant.   The following is a summary of the timesheets:

Period between 8th December 2015 to 7th April 2016 (inclusive)

Total hours worked in period: 697.33

Number of weeks = 16

Average hours per week = 697.33 /16 = 43.58 hours per week

Period between 14th December 2015 to 13th April 2016 (inclusive)

Total hours worked in period: 696.83

Number of weeks = 16.14

Average hours per week = 696.83 /1614 = 43.14 hours per week

Notes:

Start and finish times are expressed in accordance with the24 hour clock.

For ease of calculation 30 minutes past the hour is expressed as .5, i.e. 3.30 is expressed as 3.50.

45 minutes past the hours is expressed as .75 etc.

Where a finish time has not been recorded, the finish time of the rest of the employees on the shift has been used.

Claim lodged on the 7th June 2016, reference period 8th December 2015 – 7th June 2016.

4 months from the 8th December 2015 is to 7th April 2016, however complainant suspended from 5th March 2016 – Count hours to 11/4/16 to compensate for 4 days annual leave taken.

17 weeks 3 days in period 8/12/15 to 7/4/16 (inclusive) less period of suspension between 5/3/16 to 14/3/16 (inclusive) (10 days) = 16 weeks.

The complainant ceased employment on the 13th April 2016, 4 months prior to that date is the 14th December 2015 – Count hours back to the 10th December 2015 to compensate for 4 days annual leave taken.

17 weeks 4 days in period 14/12/15 to 13/4/16 (inclusive) less period of suspension between 5/3/16 to 14/3/16 (inclusive) (10 days) = 16 weeks 1 day.

The Law

Section 16 (1) of the Organisation of Working Time Act states “Night time means the period between midnight and 7am on the following day.” It further states that a “Night worker means an employee (a) who normally works at least 3 hours of his or her daily working time during night time, and (b) the number of hours by whom during night time, in each year, equals or exceeds 50 per cent of the total number of hours worked by him or her during the that year.”

The Complainant as per the above, does not fall into the category of night worker.

Unfair Dismissal Act 1977

The Complainant has alleged he was constructively dismissed.

SI 146/2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 states that an employee has the right to be represented during the disciplinary process, section 4 subsection 4 states ‘For the purposes of this Code of Practice, “employee representative” includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise.’ There is no right to legal representation during the process.

Further, in Employment Law, Frances Meenan at page 975 it states ‘the Supreme Court has considered that legal representation is the exception rather than the rule depending on the circumstances of the case’. It goes on to state ‘In serious cases, he may be entitled to have representation’.

In Ward v Stobart (Ireland) Ltd [2012] E.L.R. 201 taken from Employment Law, the tribunal considered that the seriousness of the allegations (gross misconduct) against the Complainants and the seriousness of the sanctions faced were relevant factors in determining that the Complainants were entitled to legal representation.

It is submitted that the converse is also true, specifically that where the allegations against the Complainant are of a less serious nature and are such that would warrant a written warning, such as the case at hand, there is no right to legal representation.

The Law

As the allegation of dismissal is in dispute, it is submitted that the Complainant is alleging that he was constructively dismissed. The Unfair Dismissals Acts define constructive dismissal as,

‘the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer’

The Respondent respectfully submits that the burden of proof now shifts to the Complainant to set out their case. The Respondent refers to the decision of ‘Employer -v- Employer’ (UD1146/2011), where the EAT found that,

‘This was a case of constructive dismissal and in such cases a high level of proof in needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary

There are two tests in the statutory definition wither or both of which may be invoked by and employee.

1.       Contract test, i.e. if an employee argues the entitlement to terminate the contract because of a fundamental breach of contract on the part of the employer. The breach of contract being alleged must be either a sufficient breach going to the root of the contract or one which shows that the employer no longer intends to be bound by one or more or the essential terms of the contract

2.       Reasonable test: i.e. that the conduct of the employer is such that it was reasonable for him to resign.

The absence of a written contract of employment and grievance procedure does not entitle an employee to terminate their employment. That doesn’t mean in itself that there was a breach of contract’.

It is well established in law that an employee must exhaust all such procedures before they can consider themselves to be constructively dismissed. The Respondent refers to the following decisions Higgins v Donnolly Mirrors Ltd. (UD104/1970) (also taken from Mary Redmond, Dismissal Law in Ireland, 2nd Edition). Here the Appellant’s claim for constructive dismissal was rejected as she had failed to discharge the heavy burden of proof she bore, John Travers v MBNA Ireland Ltd. (UD720/2006) where the EAT held that “the Complainant did not exhaust the grievance procedure made available to him and this proves fatal to the Complainant’s case,” Donegan v Co Limerick VEC (UD828/2011) it was held that “the Complainant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace….The respondent’s conduct was not so unfair or damaging to the Complainant’s rights and entitlements that she had no option but to resign from her position,” and more recently in Debbie Kearns v Silverfern Properties Ltd. [2013] 2 JIEC 0701 the EAT held that “In order to succeed in a claim of constructive dismissal a Complainant must show, that either their contractual terms were altered in such a way, going to the root of the contract, as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal.

It is submitted that the Complainant has failed to satisfy this heavy burden of proof.

Consumer Protection Act 2007

The Complainant has lodged a claim alleging he has been penalised for reporting breaches of the Consumer Protection Act 2007.

The Complainant has not specified how he was penalised. The respondent can only assume this penalisation resulted in the Complainant’s termination of his contract of employment.

It is submitted that the Complainant must elect under which Act she intends to pursue his claim for dismissal, in circumstances whereby he cannot obtain redress under both Acts.

The Respondent’s refer to the well-established rule in Henderson v Henderson [1842] 3 Hare 100, which has been cited with approval in Parson v Ianrod Eireann [1977] 2 IR 523 and Cunningham Intel Ireland Ltd. [2013] IEHC 207 where the High Court held, “[A]ll matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances.”

Conclusion

The respondent wholly refutes the Complainant’s allegations under the Unfair Dismissals Act. Consumer Protect Act, Employment Equality Act, Terms of Employment Information Act and Organisation of Working Time Act.

In Able Security v Hardijs Langsteins DWT1319 the Labour Court held that:

“The Court has consistently held that a Complainant carries an evidential burden to put in issue the facts upon which his or her claim is grounded and must outline the claim with enough particularity to allow a Respondent know what it is they are being accused of.”

The respondent respectfully submits the Complainant should set out his case to allow them to defend the claims made against them.

The Respondent’s position

As a small company it was not uncommon for employees to move roles a number of times to meet company needs. The Complainant accepted each position that he was offered with enthusiasm and a desire to add value.

The Complainant was not disciplined for using frozen fish he was issued with a written warning for using poor quality fish. The issue of the frozen fish was dealt with separately with VB who accepted responsibility and resigned over the matter.

It is submitted that even if the Complainant genuinely believe that the respondent was wrong in issuing a written warning, his reaction in resigning from his employment was disproportionate.

The respondent’s business is fifth generation in the fish industry. It has never been involved in a formal labour dispute in its history.

CA-00005042-001: Unfair Dismissals Act, 1977

The Complainant was called to a meeting by the Respondent on the 4th March 2016. He was not advised that the meeting was an investigation meeting.

The Company Handbook states

“a.         That the purpose of the investigation meeting would be to establish the facts

b.            That details of the investigation would remain completely confidential“

The Respondent failed to abide by these guidelines. In fact, Mr. VB, the Complainant’s supervisor, also attended this meeting.

At the end of this meeting the Complainant was suspended on full pay and he was advised by Mr. DM “to return to see him at 11.00am on Monday 7th March 2016”. The Complainant was not advised why it was necessary to suspend him. The Employee Handbook states:

“h.          That temporary suspensions may be necessary but only to ensure that an uninterrupted                 investigation can take place.”

There was no reason why an “uninterrupted investigation” could not have taken place while the Complainant was still actively working.

The Complainant received a letter from Mr. DM, dated 8th March 2016, requesting him to attend a disciplinary hearing on Wednesday 9th March 2016. It was stated that the meeting “is to discuss the following matters of concern to me”.

“Alleged failure to devote the whole of your time, attention and abilities to our business and its affairs during your normal working hours which may have resulted in adverse publicity and loss of money to the company, namely that on the 3rd March 2016 and 4th March 2016 you packed cases incorrectly resulting in a loss to the company.

These matters are regarded serious misconduct, which may result in a level of warning issued to you.”

These matters were not clearly put to the Complainant at the first meeting held with him on the 4th March 2016.

Mr. DM carried out the investigation meeting on the 4th March 2016. He also conducted the disciplinary meeting which resulted in the Complainant being issued with a final written warning. Mr. DM should not have been involved in chairing the disciplinary meeting, as he had already carried out the investigation meeting.

By email, dated 5th March 2016, the Complainant advised Mr. AM of concerns that he had relating to matters in the workplace. He received no response from Mr. AM in relation to those matters. The Complainant appealed the sanction of the final written warning. An appeal hearing took place on the 30th March 2016. Mr. AM conducted the appeal hearing. The Complainant raised concerns regarding the impartiality of Mr. AM to hear at the appeal hearing based on the information that the Complainant had provided to Mr. AM in his email of 5th March 2016. However, Mr. AM refused to allow an independent third party to conduct the appeal hearing. The Complainant’s appeal was not upheld.

The disciplinary process conducted by the Respondent was unfair to the Complainant. The same manager conducted both the investigation meeting and the disciplinary meeting – that was unfair to the Complainant. The Complainant was suspended by the Respondent without any clear reasons as to why it was necessary to suspend him. Mr. AM should have allowed an independent person to conduct the appeal hearing. A satisfactorily explanation was not provided as to why the emails on his work phone were deleted by the manager.

The Respondent did not afford the Complainant due process and fair procedures in the manner by which the investigation, the disciplinary process and the Complainant’s appeal was carried out.

The Complainant had lost faith in the Respondent’s ability to be fair and as a result resigned from the organisation.

CA-00005042-002: Organisation of Working Time Act, 1997

The Complainant alleges that he was required to work in excess of the hours legally permissible, under the Organisation of Working Time Act 1997. The Respondent denies the Complainant worked in excess of the legally permissible hours in relation to the reference period relating to this claim. The Respondent’s Representative submitted detailed timesheets, which clearly shows that the Complainant did not work in excess of the hours legally permissible under the 1997 Act.

The Respondent was not in breach of the Organisation of Working Time Act, 1997.

CA-00005042-003: Terms of Employment (Information) Act, 1994

The Complainant was employed by the Respondent on the 26th January 1998. The Complainant did not receive a written statement outlining his terms and conditions of employment within 2 months of the commencement of employment. The Complainant was provided with a written statement outlining his terms and conditions of employment on the 28th March 2006. The Complainant should have been notified in writing of the various changes to his terms and conditions of employment each time that he took on a new position of employment.

The Respondent was in breach of the Terms of Employment (Information) Act 1994.

CA-00005042-004: Consumer Protection Act, 2007

This complaint was not progressed by the Complainant’s Representative.

CA-00005042-005: Employment Equality Act, 1998

This complaint was withdrawn by the Complainant’s Representative.