ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00003959

Parties:

Complaint(s):

Date of Adjudication Hearing: 26/May/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance Section 8 of the Unfair Dismissals Acts, 1977-2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant, a Lithuanian national, was employed as a Chicken Catcher from 2nd June 2008. on 1st March 2016 the business was subject to a transfer of ownership where the Complainant’s terms and conditions were continued, and an updated contract of employment was issued to the Complainant.   The Complainant submitted that he was unfairly dismissed on 7th June 2016 following what he maintained were unfounded complaints from clients of the Respondent, and where he contended he was not afforded fair procedures regarding his dismissal. The Complainant submitted that his dismissal was due the Complainant making a personal injury claim after a fall at a client site on 29th November 2014. The Complainant was paid €492.28 per week at the time of his dismissal.

Summary of Respondent’s Case:

The Respondent acknowledged that the Complainant was employed with them since June 2008 and that the company transferred ownership on 21 January 2016. The Respondent advised that it operates as a poultry contractor to a meat processor. The Respondent acknowledged the date of dismissal was 7th June 2016, but refuted that it unfairly dismissed the Complainant.

The Respondent advised that in accordance with its contract with the meat processor it provides workers to different farms to catch chickens, where they are loaded into crates to be processed by the meat processor.

The Respondent submitted that during May 2016 a number of farmers where the Complainant attended to catch chickens wrote to the Respondent stating they did not want the Complainant on the premises. The Respondent denied that the reason for it dismissing the Complainant was due to his personal injury claim.

The Respondent submitted that it had received a number of correspondences from farmers stating they did not want the complainant on the premises for varying reasons. These reasons stated that the complainant had made a personal injury claim against a farmer, that they just did not want the complainant attending the site, and two complaints inferring that the Complainant had departed from the accepted loading procedures by turning the lights on full in the chicken house, placing a plastic fertiliser over his arm and walked down the house flapping the bag which scattered the birds, and where over 50 birds were smothered and this amounted to financial costs as a result of reckless behaviour, and a complaint that the Complainant refused to follow instructions.

The Respondent submitted that it suspended the Complainant on 27 May 2016 on full pay to allow it to investigate the allegations of the complaints, and where it advised the Complainant in writing of the concerns related to the Complainant failing to follow farmers instructions, failure to respect the welfare of poultry, and for touching poultry house controls without permission. The Respondent also advised that he liaised with the meat manufacture to lobby on behalf of the Complainant but that the meat manufacture advised they were unable to assist.

The Respondent submitted that he invited the Complainant to a meeting on 3rd June 2016 to discuss the situation and put forward some alternatives and where the Complainant was advised he could be accompanied at this meeting. The Respondent also had a person attend who could translate from English to Lithuanian at this meeting. The Respondent maintained that at this meeting it advised the Complainant that farmers had brought several complaints against him and as a result they had demanded that the Complainant no longer work at their farms. It advised the first complaint was received on 12th May 2016 and complaints started to come in on 23rd May 2016. The Respondent also advised the Complainant that they were advised by farmers, that because of a personal injury claim was filed against a fellow former the farmers no longer no longer wanted to work with the Complainant. The Respondent advised the Complainant that they were not happy about this, they had fought in behalf of the Complainant to have him back to work on the sites, but the farmers had refused. The Respondent submitted that it advised the Complainant that he was informed that as they could no longer find work for him they may be forced to terminate his employment. The Respondent also maintained that they asked the Complainant if he had any suggestions regarding alternative employment that they can consider but that the complainant provided no alternatives. The Respondent advised that it took some time itself to consider alternatives but as a could find no alternatives they wrote to the Complainant on 7th June 2016 informing him that his employment would be terminated. The Respondent submitted that the Complainant was paid his notice and all entitlements which included four weeks wages in lieu of notice and nine days outstanding holiday pay. The Respondent advised the Complainant that he had the right to appeal the decision and an appeal was held on 17th June 2016, but that having considered matters on 22 June 2016 the appeal officer theory appointed by the Respondent upheld its decision to dismiss the Complainant.

The Respondent submitted that under section 6 (6) of the Unfair Dismissals Act it was for the employer to show that the dismissal resulted wholly or mainly from one or more the matters specified in subsection 6(4) of the Act, or other substantial grounds justifying the dismissal. The Respondent maintained that it in accordance with section 6 of the Act there were substantial grounds justifying the dismissal, and this was due to a third party placing pressure on the Respondent. The Respondent referred to the case of Henderson V Connect (South Tyneside) Ltd 2010 IRLR 466 where the test of reasonableness of a decision to dismiss, as stated by the Tribunal, is where the employer had done everything that it reasonably could do to avoid or mitigate the injustice brought about by the stance of their client, most obviously by a) trying to get the client to change its mind and if that was impossible b) trying to find alternative work for the employee but had failed. The Respondent therefore maintained that any eventual dismissal based on these circumstances would not be unfair. The Respondent submitted that in this case, even though the outcome for the employee might be unjust, that injustice is not the result of any unreasonableness on the part of the employer. The Respondent submitted that it made repeated attempts to get the farmers to change their mind and also sought for the meat processor to lobby in behalf of the Complainant, but these attempts failed.

The Respondent also referred to the case of Masini V Compass Group UK & Ireland Ltd ET/2701 1121/2014   where the Tribunal held that whilst there was an injustice to the employee, the employer had done all it could for the employee. The Complainant also referred to the decision of Bernard Sheen V Keating’s Bakery (UD 738/89) where the Tribunal noted that the Respondent attempted to undo the wrong but failed to do so in its dealings with the third party… The Respondent showed good faith and good intentions in the situation. The Tribunal went further and stated that where a grave allegation has been made, steps such as requesting a meeting at the highest level with third party should have been taken”.

The Respondent in the case within maintained that it lobbied with the farmers directly, requested meetings at the highest level with its meat processor client, but they were not interested in meeting with the Respondent nor was the client interested in lobbying on behalf of the Complainant. Despite these attempts the Respondent could not change the mind of the farmers or its client, or find alternative employment.

The Respondent further referred to the decision of Derek Healy V Provincial Security Services Ltd (UD 447/2011) where the Tribunal stated that every case must be considered in the light of its own particular facts… The employer would be expected the show that it has concluded an investigation into reasons for the refusal of the Respondent’s customer to have the Complainant work on the site. The Respondent therefore submitted that made every reasonable attempt to change the farmers’ decision, wrote to the farmers to establish why they would not want the Complainant back on site but to no avail, and given these circumstances it maintained that it applied fair procedures as far as practical. It therefore argued that the dismissal should be deemed to be fair, and with reference to Looney V Looney (UD 843/1984) that, considered against the facts, it behaved as a reasonable employer in a similar situation and circumstances would have done.

The Respondent argued the fact that the employee has suffered an injustice did not mean that the dismissal was unfair within the meaning of the statute as identified in the juris prudence of Henderson V Connect (South Tyneside) Ltd.

The Respondent also advised that before it dismissed the Complainant it afforded the Complainant with an opportunity to appeal the decision and where the Complainant was provided with the complaints that had been lodged by the farmers, the replies from the Respondent to eth farmers, and the subsequent correspondence from the farmers including the Respondent’s letter addressed to the meat processor. At this hearing the Respondent maintained that the Complainant did not offer any additional information. Having considered these issues the Complainant was advised that the original decision to dismiss remained and where the reason for dismissal was not taken on the foot of any misconduct proper performance against the Complainant, but the decision was taken on foot of the fact that as a result of clients of the Respondent rescinding the Complainant’s access to work on their sites and in the absence of any other alternative work for the Complainant to be employed within the company there was no alternative but to dismiss him from his employment.

Summary of Complainant’s Case:

The Complainant maintained that on 20th November 2014 he slipped and fell at a farmer’s premises causing injury. He subsequently submitted a claim to the Personal Injuries Board against both the Respondent and the farmer.

The Complainant submitted that he received a letter from the Respondent on the 27th May 2016 stating that the farmers he worked with had requested that he be removed from their farms for failure to follow instructions, failure to respect the welfare of poultry, for touching controls without permission, and for not following instructions.

The Complainant advised that he later received a copy of the farmers’ complaints of which there were eighteen. Of these he submitted that eight of the complaints did not specify any reason for refusing him entry on their farms, eight specified the reason as the Complainant had taken a claim against one of their colleagues, and two cited interference with controls.

The Complainant submitted that he was furnished with a copy of the Respondent’s response to the farmers’ complaints, and a copy of the farmers’ replies. He was then invited to a meeting on 3rd June 2016 advising him of the decision that his job was to be terminated. The Complainant submitted that he appealed this decision on 17th June 2016, but the decision to dismiss him was upheld and accordingly he was dismissed.

The Complainant maintained his dismissal was unfair as he was the best worker they had and where he had a loyal and unblemished career. He advised that the decision to dismiss him was not related to his conduct, yet the issues were being dealt with as if they were a disciplinary matter regarding his conduct. He submitted that he was never told of the real reason for his dismissal. He said the reasons provided by the farmers to the Respondent were vague, and the matters were never investigated by the Respondent to establish the basis of the farmers not agreeing to work with him.

The Complainant also advised that he was approached and asked to withdraw his personal injury claim by the Respondent. (At the hearing the Respondent denied this had happened).

The Complainant advised that he was never shown the notes of the meeting of 3rd June 2016 presented by the Respondent at the hearing. (The Respondent argued that he was shown them but refused to sign them). The Complainant further argued that within one week the Respondent advised it was to investigate the matter and the decision to dismiss was made on the 7th June 2015, some 10 days after receipt of the complaints, and where the Respondent maintained he could not find alternative work for the Complainant. Based on these circumstances the Complainant maintained he had been unfairly dismissed.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

Findings and Conclusions:

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

It is clear that the Complainant was dismissed. The evidence presented at the hearing supports that the Respondent received correspondence from some eighteen of its clients with regard to their objection to having the Complainant on their site. It would appear that in at least eight of these cases the Respondent’s clients referred to the fact that the Complainant had been involved in a workplace accident and had issued a personal injury claim. Whilst another eight clients were not specific in their reasons it is likely that their objections were due to the same reason. A further two clients raised concerns with regard to the Complainant’s performance and where one of these complaints referred in part two to an incident two years earlier.

Whilst the dismissal of an employee for making a personal injury claim it may typically be deemed to be an unfair dismissal, it is noted that the Respondent in this case did not seek the dismissal of the employee. The evidence presented indicates that during May 2016 some eighteen clients of the Respondent refused to allow the Complainant on their farm sites. Evidence presented by the Respondent indicates that representations were made by the Respondent to these farmers, and in addition the Respondent wrote to the meat processor asking for support with regard to persuading the farmers to overturn their decision but that the meat processor would not engage in the matter.

I am satisfied that based on the evidence provided the Respondent did all that was reasonable to seek work for the Complainant and, with reference to Henderson V Connect (South Tyneside) Ltd, it did what it could to persuade its clients to change their stance. However, the Respondent’s clients did not change their mind, and the Respondent had no other work for the employee. On that basis the Respondent had no option but to terminate the contract of employment. In so doing the Respondent relied on the Complainant’s contract of employment which stated that the employer may terminate your employment citing some other substantial grounds for termination other than capability, conduct a redundancy.

In effect, I find the decision to dismiss was due to the attitude of the Respondent’s clients and a refusal of the clients to change their decision regarding the Complainant working on their farms. I am satisfied that based on the evidence presented that was the reality of the unenviable situation the Respondent found himself in.

In accordance with the juris prudence presented by the Respondent it is clear that the Respondent done all that was reasonable to address what appears to be an unjust decision by his clients, despite representations and lobbying the Respondent could not reverse their decisions. The evidence presented is clear that the Respondent sought to have these decisions reversed but his clients refused. Accordingly, whilst the clients’ decisions may have been unjust and created an unfortunate set of circumstances I’m satisfied the Respondent had done all that was reasonable to avoid the dismissal, and where the decision to dismiss was not die to any unfair actions or omissions of the Respondent. I therefore do not find that the Complainant was unfairly dismissed in accordance with the unfair dismissals act.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977–2015 requires that I make a decision in relation to the unfair dismissal claim.

For the aforesaid reasons, I do not find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977. Under the circumstances, despite the unjust decision of the Respondents’ clients to refuse the Complainant enter their sites, I conclude that the Complainant was fairly dismissed by the Respondent.

Dated:   16.5.18

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words:

Unfair Dismissal, Unjust Circumstances.