Complainant

Respondent

Anonymised Parties

A General Operative

A Turkey Farm

Representatives

Bébhinn Murphy B.L. instructed by John P. Prior & Co Solicitors

Donna Reilly B.L. instructed by DAS Legal Expenses Insurance Company Ltd

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-00011883-001

30/05/2017

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

CA-00011883-002

30/05/2017

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

CA-00011883-003

30/05/2017

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

CA-00011883-004

30/05/2017

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

CA-00011883-005

30/05/2017

The complainant was employed by the Respondent as a General Operative. Her employment commenced on 5th September 2011 and was terminated on 11th April 2017. The complainant was paid a gross rate of €10 per hour. The complainant contends that she was unfairly dismissed and is seeking compensation in that regard.

The complainant contends that she was dismissed from her employment following a flawed disciplinary process. The complainant stated that the respondent’s Sickness and Absence Policy states that an employee who is absent from work must telephone the employer. The complainant stated that as she did not speak English, she always informed the employer of her absence by text message, which she contends she was previously allowed to do. The complainant acknowledges that she was given verbal warnings for sending text messages to the employer instead of telephoning in relation to the required notification of her absence.

The complainant’s position is that she was given a final written warning following a disciplinary hearing that was held on 3rd March 2017. The complainant stated that the English version of the letter confirming the final written warning provides for an appeal within 5 working days. The complainant contends that the version of the letter in the complainant’s own language does not include any option to appeal and is almost incomprehensible due to the poor standard of the online translation facility used by the respondent.

The complainant stated that she was subsequently absent on sick leave and returned to work in early April 2017. The complainant contends that a meeting took place on 11th April 2017 and approximately ten minutes after the meeting ended, the HR Manager informed the complainant at her work station that she was being dismissed and that she should leave the premises immediately.

The complainant stated that she did not know prior to the meeting of 11th April 2017 that she was at risk of losing her job and even after the meeting had concluded and she had left the premises, she was unaware of what had happened and what she should do next.

In relation to not submitting medical certificates on the third day of absence, the complainant stated that she was only working two days per week following surgery on a broken leg and was of the opinion that the certificate could be submitted on her next rostered working day. She said she was not aware of the requirement to submit a certificate for a day that she was not rostered to work.

The complainant contends that the dismissal was unfair as she was not afforded the opportunity to appeal the final written warning, and was dismissed on the basis of there being a final written warning in place. The complainant also stated that the respondent was influenced in its decision to dismiss her by taking into consideration previous warnings that had expired.

The respondent denies that the complainant was unfairly dismissed. The respondent stated that the complainant was dismissed for her failure to adhere to an established Sickness and Absence Procedure. The respondent stated that absences must be notified by telephoning the organisation on the first day of absence and that text messages are not permitted. The respondent also stated that medical certificates are expected on the third day of absence and that the complainant had also continually failed to follow this element of the process.

The respondent stated that, in line with its policies and procedures, the complainant was subject to a disciplinary process which resulted in a final written warning. The respondent stated that despite not speaking English, the complainant was aware of the process and the fact that she could appeal the final written warning. The respondent stated that the complainant received a letter confirming the final written warning which had been translated into her native language (Lithuanian) and had a translator present throughout the disciplinary process. The respondent contends that the complainant confirmed throughout her employment that she was aware of the policies and understood her right to appeal the disciplinary sanctions. There were two witnesses on behalf of the Respondent who gave evidence in relation to the translation of the letter which the complainant received.

The respondent stated that the complainant had been counselled and/or warned a total of 11 times between March 2013 and April 2017 in relation to not following the Absence and Sickness Policy. The respondent stated that its disciplinary procedure allows, in limited circumstances, historical warnings to be considered as part of the disciplinary process which may ultimately lead to dismissal.

The respondent contends that the complainant continued to breach the Sickness and Absence Policy by not telephoning the respondent and by not furnishing a medical certificate on the third day of absence.

The respondent cited Jerosenko v Mid West Cleaning (UD276/2014) in support of its case relating to persistent failures to adhere to the Sickness and Absence Policy. In relation to continued absences, the respondent cited the cases of O’Gorman v Yves Rocher (UD466/2015 and Dziersowska v Wincantonan (UD7/2002).

In relation to this case I find as follows:

The complainant accepted that she sent text messages to notify the respondent of her absences instead of telephoning as required. She accepted that the respondent had counselled her on this issue and had also invoked the disciplinary procedures of which she was aware. The complainant stated that as she was unable to speak English, she sent text messages on occasion and also telephoned on other occasions but while she mostly sent text messages, she was aware that she should have telephoned to notify the respondent of her absence.

A key element to this complaint is that the complainant was issued with a letter confirming a final written warning following a disciplinary meeting held on 3rd March 2017. The English version of the letter stated that the warning could be appealed. In the Lithuanian version of the letter which was translated by an online translation service, there is no mention of the possibility to appeal. At the hearing of this complaint, the complaint confirmed in evidence that she could not understand the Lithuanian version of the letter due to the composition of the words and the structure of the sentences. The Lithuanian interpreter engaged by the Workplace Relations Commission (WRC) at the complainant’s request was also unable to make sense of the Lithuanian version of the letter and confirmed that it did not contain the word appeal or any suggestion that the warning could be appealed. In addition, the two witnesses brought by the Respondent also struggled to understand the meaning of the Lithuanian version of the letter and both confirmed that the word appeal was not contained in the letter. Despite this, the respondent contends that the complainant understood that she had a right to appeal. I do not accept that the complainant was aware of her right to appeal the final written warning for the reasons stated above.

According to documentation supplied by the respondent, the complainant was spoken to on 11 occasions between 2013 and 2017. The last occasion prior to the 3rd March 2017 occurred on 6th May 2016 which resulted in no warning being issued. Previous to that the last occasion was 29th July 2015. There is no evidence to confirm that a warning was issued on that occasion but even if it had, it would, in the normal course of events have expired by 3rd March 2017. On that basis, I find that the final written warning issued by the respondent on 3rd March 2017 was excessive.

I further note that at the meeting on 3rd March 2017, the complainant identified that she had a problem with alcohol and that she had an appointment to seek help later that month. Despite the fact that the complainant had disclosed her difficulties with alcohol, the respondent confirmed in evidence that it did not put any supports in place for her. I find that on this issue the respondent failed in its duty of care to the complainant.

In relation to the disciplinary process carried out on 11th April 2017, the respondent accepted that the complainant had sent text messages in relation to her recent absences but had not telephoned as required and had not submitted a medical certificate on the third day of absence. The respondent dismissed the complainant on the basis of her repeated failure to follow the sickness and attendance policy. It was confirmed in evidence that the complainant was dismissed and asked to leave the premises immediately. On the basis of the evidence on this issue, I find that the decision to dismiss the complainant was made prior to the disciplinary meeting and notifying the complainant of this within minutes of the meeting concluding and asking that she leave the premises immediately was unfair.

The respondent stated that its disciplinary procedures allow in certain limited circumstances for spent warnings to be used “in consideration of the employees total work history” and the respondent relied on the previous 11 incidents where the complainant had been spoken to/warned about her breaches of the attendance and sickness policy. On this issue I find that there was no evidence presented at the adjudication hearing as to what the limited circumstances were and there were no live warnings in place at the time the final written warning was issued.

In all of the circumstances of this case, I find that issuing a final written warning was excessive on the basis that there was no written warning in place at the time and there was no opportunity to appeal the final written warning that subsequently issued. Consequently, the dismissal that occurred as a result of the existence of the final written warning was procedurally unfair.

I accept that there was a pattern of sickness absence in this case and a continuous attempt by the employer to address the issues with the complainant by counselling her and by invoking disciplinary sanctions on occasion. However, I am of the view that the events occurring from 3rd March 2017 until the complainant was dismissed on 11th April 2017 were not handled correctly and hence I find that the complainant was unfairly dismissed on procedural grounds.

The Law:

Sections 6(1) and Section 6(4) of the Unfair Dismissals Act, 1977 state as follows:

6(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

6(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Mitigation of Loss

The complainant quantified her losses at €36,400 and is seeking compensation in that regard.

In relation to the mitigation of loss, the complainant provided four stamped job applications and confirmed that she had sent approximately 10 CV’s to prospective employers since her dismissal. The complainant stated that it is not always possible to get forms stamped and that her lack of ability to speak English is also a barrier to gaining alternative employment.

In calculating the appropriate compensation due to the complainant, I am mindful of the EAT Decision of Coad v Eurobase (UD1138/2013) in relation to the complainant’s efforts to mitigate her loss. In that case the EAT found that the complainant’s efforts had not met the standard as set out in the case of Sheehan v Continental Administration Co. Ltd (UD858/1999) which 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.”

In the instant case, the complainant did not provide any evidence that she met the standard in attempting to mitigate her loss. In those circumstances, I do not consider it appropriate to award the level of compensation sought.

Having considered the written and verbal submissions of both parties to this complaint, I find that the complaint of alleged Unfair Dismissal is well founded. I consider it fair and equitable in all of the circumstances of this complaint to award the complainant €4,000 in compensation.

The complainant submitted four complaints alleging breaches of the Organisation of Working Time Act, 1997 in respect of Daily rest breaks and Weekly rest breaks, Additional Daily breaks and working in excess of the weekly maximum hours permitted under the legislation. The specifics of the claims relate to a three-week period from 1st December 2016 to 21st December 2016.

The parties to these complaints submitted extensive supplemental submissions after the adjudication hearing. The last submission received was dated 14th March 2018.

The complainant contends that she did not receive adequate daily rest periods between shifts in contravention of Section 11 of the Organisation of Working Time Act, 1997 and did not receive weekly rest breaks in accordance with the provisions of Section 13 of the Organisation of Working Time Act, 1997.

S.11 – Daily Rest periods

The respondent provided the appropriate records in relation to the complainant’s employment.

S.13 – Weekly rest periods

The respondent contends that it was a matter of practice that staff worked seven days per week in the busy period preceding Christmas. The respondent further stated that the additional hours were welcomed by the complainant and she did not at any time seek any time off, or raise any issues that she was dissatisfied with the arrangements.

Section 11 and 13 of the Organisation of Working Time Act, 1997 state as follows:

11. An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

13(1) In this section “daily rest period” means a rest period referred to in section 11

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

(5) Save as may be otherwise provided in the employee’s contract of employment—

(a) the rest period granted to an employee under subsection (2), or

(b) one of the rest periods granted to an employee under subsection (3),

shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.

In the instant case, the records provided in relation to the complainant outlined four breaches of Section 11 of the legislation; (5/12/16, 16/12/16, 17/12/16 and 18/12/16).

In relation to weekly rest periods the complainant worked seven days per week for a three-week period. In those circumstances the respondent has breached the provisions of Section 13 of the Organisation of Working Time Act, 1997 on three occasions.

The respondent has therefore breached Section 11 and Section 13 of the legislation on a total of seven occasions.

In all of the circumstances of the complaint, I consider it appropriateto award the complainant €700 in compensation for the infringement of her rights under the legislation.

The complainant contends that on 8th December 2016, she did not receive an adequate rest break in compliance with the legislation. The complainant states that she had an entitlement to a 30-minute break after 6 hours of work which she did not receive in the afternoon on that date.

The respondent stated that the complainant received all breaks and denies any contravention of the legislation.

Section 12 of the Organisation of Working Time Act, 1997 states as follows:

12.(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

The complainant’s representative outlined that the complainant did not receive the adequate rest break while at work on one occasion (8th December 2016). The alleged breach relates to the afternoon period of work which began at 13.33pm and finished at 20.32pm. There was no break provided for in that period of time. On that basis, I find that a breach of the legislation occurred.

Having considered the submissions of both parties to this complaint, I consider it appropriate to award the complainant compensation in the amount of €100 for the infringement of her rights under the legislation.

The complainant stated that for the three weeks in question, she worked up to 16 hours a day and only received one hours break in total each day broken down into a 15-minute break followed by a 30-minute break followed by a further 15-minute break.

The respondent submitted the appropriate records in relation to the complainant’s employment. The respondent’s position is that the complainant received all breaks in line with the legislation.

In relation to this complaint I find as follows:

From the records provided, it appears that the complainant did not work the level of hours that were claimed and it appears that, with the exception of the incidents referred to earlier in this decision, all breaks were provided in compliance with the legislation.

The requirement to provide breaks is provided in Section 12 of the Organisation of Working Time Act, 1997 as follows:

12(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

In the instant case, I do not find that the respondent breached the legislation.

Having considered the submissions of both parties to this complaint, I declare that this complaint is not well founded.

The complainant contends that in the three-week period (1st -21st December 2016) she worked in excess of the weekly maximum hours permitted under the provisions of the Organisation of Working Time Act, 1997.

The respondent stated that it had not breached the legislation in relation to the weekly working hours on the basis of the reference period provided in the legislation. The respondent stated that the reference period should be six months on the basis of the seasonal nature of the business.

In relation to this issue, I find as follows:

Section 15 of the Organisation of Working Time Act, 1997 provides as follows:

15.(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period” that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

(2) Subsection (1) shall have effect subject to the Fifth Schedule(which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule).

(3) The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.

(4) A reference period shall not include—

(a) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),

(aa) any period during which the employee was absent from work while on parental leave, force majeureleave or carer’s leave within the meaning of the Carer’s Leave Act, 2001,

(b) any absences from work by the employee concerned authorised under the Maternity Protection Act, 1994, or the Adoptive Leave Act, 1995, or

(c) any sick leave taken by the employee concerned.

(5) Where an employee is employed in an activity (including an activity referred to in subsection (1) (b) (i))—

(a) the weekly working hours of which vary on a seasonal basis, or

(b) as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,

then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24may specify, for the purposes of subsection (1) (c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months.

The respondent sought that the reference period be six months whereas the complainant stated that the appropriate refence period is the four-month reference period that applies in general circumstances.

The complaint was submitted to the Workplace Relations Commission on 30th May 2017. The reckonable period for consideration is the six months’ period prior to the complaint being made (29th November 2016- 30th May 2017). In terms of the applicable reference period, I consider it appropriate to use the four-month reference period that applies under the Act. While the respondent experiences a peak in demand in the weeks preceding Christmas, I am not satisfied that it is sufficient to deem the employment seasonal in nature and to extend the reference period to six months.

On the basis of the evidence submitted, it does not appear that the complainant worked in excess of the maximum weekly working hours permitted on average in the four-month period from 29th November 2016 to 28th March 2017.

Having considered the written and verbal submissions of both parties and all of the evidence adduced at the hearing of this complaint, I declare that this complaint is not well founded.