ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00015407

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00019680-003	08/06/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00019680-004	08/06/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00019680-005	08/06/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00019680-006	08/06/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00019680-007	08/06/2018
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006	CA-00019680-008	08/06/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00019680-009	08/06/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00019680-010	08/06/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00019680-011	08/06/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00019680-012	08/06/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00019680-013	08/06/2018

Date of Adjudication Hearing: 16/10/2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was employed as a General Operative from mid--2000 to 5th January 2018. He was paid €600 gross per week. He has claimed that he did not get a written contract of employment, was unfairly dismissed, did not get minimum notice and was penalised for making a complaint concerning health and safety. He has sought compensation.

He withdrew the following complaints

CA 19680-006 Industrial Relations Act 1969

CA 19680-007 Employment Equality Act 1998

CA 19680-008 Employees (Provision of Information & Consultation) Act, 2006

CA 19680-010 Redundancy Payments Act, 1967

Rate of Pay

I note the representations made concerning the actual rate of pay. I note that the Complainant is relying upon Regulations contained in SI 287/1977 “shall be his earnings in respect of that employment (including and regular bonus or allowance which does not vary having regard to the amount of work done and any payment in kind”. The Respondent stated that the Complainant received expenses of €150 per week and €10 for phone. These were regular payments. I note the definition of wages in the Payment of Wages Act Sec 1 (1) (b) states, “the following payments shall not be regarded as wages for the purpose of this definition (1) any payment in respect of expenses incurred by the employee in carrying out this employment”.

However, I note that these alleged expenses never varied and were not vouched expenses. Therefore, I must conclude that they were a form of wages and not actual “expenses incurred in carrying out this employment”.

I find that the Complainant’s wages were €600 gross per week.

1)Terms of Employment (Information) Act CA 19680-003/004

Summary of Complainant’s Case:

Sec 3 CA 19680-003

The Complainant stated that he did not receive a written statement of his terms and conditions of employment. He was not provided with a grievance and disciplinary procedure and bullying and harassment policy and procedure. He was not advised of these especially during the investigation carried out by the Respondent. This has prejudiced his ability to defend himself. Therefore, this breach of the Act is a most serious one.

Sec 5 CA 19680 -004

There were changes to the Complainant’s terms and conditions, deduction of union dues and changing his location of work.

Summary of Respondent’s Case:

Sec 3 CA 19680-003

The Respondent stated that the Complainant was not in receipt of terms and conditions of employment.

Sec 5 CA 19680 -004

There were no changes to his terms and conditions of employment. No union dues were deducted from his wages, they were paid by the Respondent because one particular client company insisted upon union membership. The Complainant was employed to operate in multi-site locations. This part of the claim is rejected.

Findings and Conclusions:

Sec 3 CA 19680-003

I find that the Respondent did not issue a contract of employment and so they have breached Sec 3 of this Act.

Sec 3 (1) “ An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”

I find that compensation is warranted.

Sec 7 (2) (d) of the Act states,” compensation of such an amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks remuneration”.

Sec 5 CA 19680 -004

I find that union dues were paid by the Respondent and that the Complainant was employed to work in a multi-site environment.

I find that this part of the claim fails.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent has breached Sec 3 of this Act. CA 19680-003.

I require the Respondent to pay the Complainant compensation of €1,750 within six weeks of the date below.

2)Unfair Dismissals Act CA 19680-005

Summary of Respondent’s Case:

The Respondent stated that there were no problems with the Complainant for the first fourteen years of employment. In 2012 he crashed his vehicle making the company liable for personal injuries. He did not report that incident. In 2015 he was convicted of driving with a false licence. He was issued with a letter concerning this matter. It was a final written warning. This was issued on 16th February 2016. The letter stated, “If there are any further incidents we will have no option but to dismiss you from our employment”. He had to be removed from a Client’s site for not wearing safety equipment. They stated that they “gave out hell to him”. On 28th October 2017 a violent incident occurred, in which it was alleged that the Complainant hit another employee with timber and the other employee hit him back. The Complainant and another member of staff were injured. An external company was engaged to investigate this matter. The report was issued in January 2018. The delay was caused by the illness to the investigator. The report found that the Complainant was a bully and that the Company would be better off without him as it appeared that he is disruptive and caused discontent. The report recommended that both employees be dismissed. The Respondent decided to dismiss both employees. The Complainant was advised on 3rd January 2018. The letter of dismissal referred to the previous incidents outlined above. The dismissal was effective from 5th January 2018.The Complainant’s solicitor wrote to the Respondent seeking an appeal of the decision to terminate the employment. He was given one week’s pay in lieu of notice. The dismissal was proportionate and justified. They cited case law in support, UD136/1984, UDD1812, UD584/2015.

This claim is rejected.

Summary of Complainant’s Case:

The Complainant stated on 28th October 2017 without warning he was assaulted by a fellow employee. The employee believed that he had been struck with a piece of skirting board. He was knocked to the floor and did not retaliate. He reported the incident to a company director. He was out sick for one week. On his return the director complained about how much it was costing to investigate the incident. He was treated in an aggressive manner by the company and isolated. He was also moved to another site. He was interviewed as part of the investigation. He was not given the right of representation at this meeting. He was given no details of this investigation. No witness statements were given to him. He received no communication until he was dismissed on 5th December 2018. He was not given any notice or information about the investigation. He was not given an outcome of the investigation or a copy of the report. He was called to a meeting and given his P45 and a cheque for €550. He protested but was told “it is what it is”. The Company failed to follow any basic procedure and they denied him all fair procedure and natural justice. His solicitor requested an appeal, but it was not given. He pointed out that previous warnings can’t remain on files for ever. He was unaware of the final written warning. This dismissal was both substantively and procedurally unfair. No alternatives to dismissal were considered. He cited case law in support. UD192/1978IEHC 137 [1997] UDD11/2016. He sought a reference, but he did not receive it. His dismissal has caused a huge problem for him. He has applied for only four jobs. He has been out sick since March/April. He has relied upon the Liz Allen case in support of his inability to mitigate his loss. He has sought compensation.

Findings and Conclusions:

Substantive matters

I note that a violent incident occurred on 28th October 2018. There were no witnesses to the incident.

I note from evidence the Complainant stated that he was seriously injured and was out sick for one week.

I note that an independent investigator could not determine who started the incident but both employees struck each other.

I note that both employees were dismissed for this violent act.

I find that a violent act as referred to here is a most serious matter.

On the balance of probability, I find that the Complainant struck a fellow employee and the fellow employee struck the Complainant.

It was not possible to determine who initiated the incident.

I find that such acts of violence are usually deemed acts of gross misconduct.

I find that the complainant was part of a violent incident and that this constitutes gross misconduct.

I find that the incident was of such a grievous nature that it constituted gross misconduct warranting dismissal. Therefore, the dismissal was substantively fair.

Procedural matters

I find that the dismissal was hopelessly flawed from a procedural point of view.

I find that following the incident of 28th October it would have been prudent to suspend both employees with pay pending investigation.

I find that the independent investigator should have agreed terms of reference with both parties.

I find that witness statements should have been taken and copied to both parties.

I find that this investigation should have been fact finding in nature only.

I find that both parties should have been advised in writing what they were accused of and given the right to defend themselves and the right to representation.

I find that they should have been interviewed in a private room.

I find that once the report was completed both parties should have been given a copy of it.

I find that this report should only have established whether the parties to the violent incident had a case to answer and whether it should be escalated to a disciplinary hearing.

Both parties should have been advised in writing of the allegations made against them, given time to defend themselves and the right to representation.

The disciplinary investigation should have been carried out by a person unconnected with the fact-finding investigation.

I find that both parties should have been advised of the potential outcome of dismissal.

I find that both parties should have been copied with the disciplinary investigation report.

I find that a senior company manager should have made the decision based on the disciplinary investigation report and convey it to the parties having advised them in advance of the purpose of the meeting.

Both parties should have been given the right of appeal the sanction of dismissal.

I find that the Respondent relied upon a final written warning allegedly given on 16th February 2016, which the Complainant denied ever receiving it.

I find that a warning must have a life and, in this case, natural justice would suggest that if it was issued then it would have expired usually after 12 months, i.e. 15th February 2017.

As can be seen from the above none of these were applied in this case. I find that the dismissal was procedurally unfair and so renders the dismissal unfair.

I find that compensation is the appropriate redress.

I find that the Complainant has contributed substantially to his dismissal.

I also find that he has not mitigated his loss and that he has been unfit for work since March/April.

These matters must also be considered when establishing the quantum of the award.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

For the above stated reasons, I have decided that the dismissal was unfair.

I have decided that the Complainant has contributed substantially to his dismissal.

I have decided that as the Complainant was unfit for work from March/April he has suffered a loss of earnings from 5th January to say 5th April a period of some 13 weeks.

I have also decided that the Complainant did not mitigate his loss during that time as he is obliged to do.

In the Employment Appeals Tribunal case Sheehan v Continental Administration Co Ltd (UD858/1999) it stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

I have decided that the Respondent should pay the Complainant compensation of €4,500, for the unfair dismissal which reflects his contribution to his dismissal. This is to be paid within six weeks of the date below.

3) Minimum Notice & Terms of Employment Act CA 19680-011/012/013

Summary of Complainant’s Case:

The Complainant stated that he was unfairly dismissed. He received €550 but this was wages owing not notice. He is entitled to 8 weeks’ notice and so is claiming €4,800.

Summary of Respondent’s Case:

The Respondent stated that they gave him one week’s notice as they believed that this was what he was entitled to. The cheque for €550 was notice and not wages.

Findings and Conclusions:

I refer to the decision in the unfair dismissals case, see above.

I note that the Respondent decided that notice should be paid and gave him on week’s pay.

I note the conflict of evidence regarding the payment of €550. On the balance of probability, I find that this was the equivalent of one week’s notice and not wages owing.

I find that he has a statutory entitlement to eight weeks’ pay in total. As he has received one week this leaves a balance of seven weeks owing, amounting to €4,200.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent has breached the Minimum Notice and Terms of Employment Act.

I have decided that this complaint is well founded, and I require the Respondent to pay the Complainant €4,200 within six weeks of the date below.

4)Safety, Health & Welfare at Work Act CA 19680-009

Summary of Complainant’s Case:

The Complainant stated that having raised a complaint with a director about the assault and safety at work on 28th October 2017 he was transferred to a different site. The director admonished him about the cost of the investigation. He was then isolated and victimised by the company. This conduct by the Respondent constitutes penalisation under Sec 27 of this Act. He is seeking compensation.

Summary of Respondent’s Case:

Employees are regularly moved to different sites, that is part of their contract of employment. The Respondent decided to separate both employees when the incident was reported. As the Complainant was a general operative it made sense to move him to another site and this is normal practice to relocate and nothing was implied by it. They stated that the Complainant did not raise a formal complaint. There was a conversation with a director of the company but no complaint. There was no protected act invoked so no penalisation could take place. The claim is rejected.

Findings and Conclusions:

Sec 27 of the Act states, “In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. (2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of 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) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

I note that the Labour Court Determination No HSD 081 stated, “It is clear from a plain reading of Sec 27 subsection 3 of this section that penalisation is rendered unlawful under the Act when it is perpetrated on an employee for having performed or committed one or more of the acts referred to in the succeeding paragraphs of that subsection. Thus it is perfectly plain that in order to succeed in a cause of action grounded on the Section a Claimant must establish not only that he/she suffered a detriment of a type referred to at subsection (1) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at subsection (2).

Therefore, I find that penalisationcan only be established if conduct or omissions which are included in the statutory meaning of the term penalisation arise and as a consequence of an act protected in subsection 3 and but for the protected acts of subsection 3 the claimant would not have suffered the detriment complained of.

Therefore, for the Complainant to succeed he must establish that he having made a complaint the Respondent retaliated to that complaint by transferring him and isolating him.

I find that there was a conflict of evidence on whether a complaint was made. There was no written complaint made.

I find that the Complainant provided no evidence of isolation or bullying.

I find that the movement of the Complainant to another site was not in retaliation but a prudent measure while the investigation was in process.

I did not find evidence of the Complainant making a protected act and no evidence of the Respondent retaliating.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons, I have decided that this complaint is not well founded and so it must fail.

Dated: 06/12/2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly