ADJ-00012653

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00012653

Parties:

Complaints:

Date of Adjudication Hearing: 30/08/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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, a Polish national, submitted that due to behaviour of his employer, a meat producer, he had no option but to resign and therefore was making a complaint of constructive dismissal. The Complainant also maintained that he was not provided with the work for which she had been employed contrary to his terms and conditions of employment, and that the Respondent failed to inform him, as a fixed term employee, of opportunities for apparent employment and of appropriate training opportunities.

Summary of Complainant’s Case:

CA-00016678-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant commenced employment with the Respondent on 16th June 2014 where he applied for the position of a Boner. He maintained he had worked with a former employer in this role and had always been an efficient Boner. However, when he took up employment with the Respondent he was deployed as a General Operative and was therefore not paid at a Boner rate of pay which was higher than that of a General Operative. The Complainant maintained that he had sought opportunities to get the appropriate skills, but the Respondent failed to employ him as a Boner which he maintained was what his contract of employment stated. He advised that he would have worked at a higher level of work than a General Operative, but he was only paid at a General Operative rate of pay. The Complainant advised that he was not provided with sufficient time to demonstrate his boning skills where he would have been up to speed in two weeks, but that opportunity was never provided to him. The Complainant also advised that he had been seeking a position as a Boner but that the Respondent failed to employ him in that position despite his ability to work as a Boner.

The Complainant submitted that on many occasions he received late payment of wages, or where his rate of pay was lower than he was entitled to receive for the hours he had worked. The Complainant maintained that he regularly had to raise concerns to management before these matters were resolved, and despite his representations he would regularly have received less pay than he was entitled to. The Complainant submitted that when errors were made they were always underpayments, never over payments, and in a factory where 48 of the 50 people employed were non Irish. The Complainant submitted six occasions from March 2016 to June 2017 where he maintained he was short either ½ hour to an hour’s pay on these weeks.

The Complainant also maintained that he had shoes stolen and money stolen and made complaints about these issues to his line manager and HR but the matters were never resolved.

The Complainant advised that he was unfairly treated at a disciplinary meeting due to an absence on 4th May 2017 where he advised that he was wrongly diagnosed by the hospital and therefore he did not accept the disciplinary warning he was issued with at that time. The Complainant also submitted that there was an incident in his house on 7th July 2017 and he could not attend. The Complainant contended that when he called the company he heard somebody laughing about the issue.

The Complainant submitted that all of these issues had impacted on his mental health and as the Respondent failed to reasonably address his concerns he had lost trust in the Respondent, and had no option but to resign from his position out of frustration on 14th July 2017.

The Complainant therefore submitted that a as a consequence of the actions and omissions of the Respondent he was constructively dismissed.

CA-00016705-001 Complaint under Section 7 of the Terms of Employment (Information) Act, 1994

The Complainant submitted that prior to taking up employment he had spent five years as a Boner with another employer. When he took up employment with the Respondent he maintained that he was appointed as a Boner however he was deployed as a General Operative at a lower rate of pay in the abattoir. He maintained this was a change in his terms and conditions of employment which he was not notified of in writing, and that despite representations made to the Respondent to be employed as a Boner the Respondent failed to appoint him to that position.

The Complainant therefore submitted that the Respondent had changed his terms of employment without his consent, and without providing notification of the changes in his job as a Boner to that of a General Operative. The Complainant submitted this was in breach of The Terms Of Employment (Information) Act 1994.

CA-00016705-002 Complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The Complainant submitted that he was employed in fixed time work and that other vacancies and opportunities arose regarding work of a higher level of skill as a Boner but he was never offered these positions. The Complainant maintained that he was not advised of these positions nor was he afforded the opportunity to develop the skills and experience to be employed as a Boner. The Complainant contended that the Respondent had appointed seven new workers, where a few them did not have the skills and this occurred despite the fact that he was a very good worker. The Complainant submitted he was treated unfairly by not been afforded the opportunity to be deployed as a Boner.

Summary of Respondent’s Case:

CA-00016678-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent submitted that did not treat the Complainant unfairly.

The Respondent confirmed the Complainant was employed from 16th June 2014 and that the Complainant terminated his employment on 14th July 2017 when the Complainant tendered his resignation.

The Respondent submitted that the Complainant’s contract of employment stated he was employed as a Boner/abattoir operative where he would be required to work in both the boning hall and in the abattoir. The Respondent advised that the Complainant was required to work for the majority of his employment in the abattoir.

The Respondent submitted that there had been disciplinary issues during the course of the Complainant’s employment where the Complainant had been issued with a written warning on 6th October 2015 arising out of a breach of health and safety rules, and furthermore he was issued with a written warning on 30th May 2017 due to levels of absenteeism and the matter of reporting his absences.

The Respondent submitted that the Complainant had been employed on the clear basis that he would be required to work in either the boning hall or the abattoir s an operative, and where the type of work he would be required to do in accordance with his contract of employment was that he would report to either the boning hall manager or to the abattoir manager. The Respondent therefore submitted that there was no entitlement for the Complainant to work just in the boning hall.

The Respondent submitted correspondence it received from the Complainant on the 25th of July 2016 where the Complainant had asked for redundancy due to a breach of his terms of employment, and that he was making an official complaint where he demanded an improvement in his conditions or else be made redundant. The Respondent submitted that on 9th August 2016 it advised the Complainant that it was not in a position to offer the Complainant a redundancy and that his terms and conditions of employment stated he was a deboner/abattoir operative. That is what he was employed as, and on that basis there had been no change in his terms and conditions, and they were not in breach of his contract.

The Respondent submitted that a meeting was held with the Complainant on 19th August 2016 to discuss his concerns and where notes of that meeting demonstrated the Respondent explained to the Complainant that a redundancy situation did not arise and accordingly no redundancy payment could not be made. The Respondent also advised at this meeting that a number of alternative jobs were offered to the Complainant at level 2 where he could be deployed in a different cutting role, but the Complainant refused this offer on the basis he wanted to be deployed at a higher skill level. The notes of this meeting indicated that the Complainant was unhappy with his rate of pay and he was offered an alternative work or upskilling to which he advised he was not interested in a level 2 role but was interested in a level 1 role which involved a higher level of skill in the deboning hall.

The Respondent advised the Complainant was absent from work from August to October 2016 due to a non-work related injury. The Respondent submitted that there was a further meeting with the Complainant on 11th November 2016 after the Complainant returned from a period of sick leave and where the Complainant was seeking redundancy. Again, it was explained to the Complainant that redundancy was not an option and there were no positions available for him in the boning hall. At a further meeting held with the Complainant on 25th November 2016 the Respondent offered the Complainant an opportunity to work in the boning hall for a number of days during December 2016 which would have allowed him to upskill.

On 6th December 2016 the Respondent wrote to the Complainant after he had appealed a decision not to grant a redundancy. At this time the Complainant was again advised that there was no redundancy and that his contract of employment stated he was appointed as a Deboner/abattoir operative, and as such the Respondent was not in breach of the Complainant’s terms and conditions of employment. The Complainant was also advised that work was available in the boning hall for a number of Saturdays in December, and that from January 2017 as the abattoir work would be reduced the Complainant was free to transfer to the boning hall if work was available there.

Notwithstanding the Respondent advised that when the Complainant was working in the boning hall for a number of days in December 2016, and again during January to March 2017 he did not demonstrate the skills required to be deployed there full time and as such he was deployed in the abattoir. The Respondent argued that it would have deployed the Complainant in the boning hall if he had demonstrated the skills, as Deboners were hard to get, and if the Complainant had the skill it would have been in their interest not to deploy him there. The fact remained that the Complainant did not demonstrate the higher level of skills to be deployed as a Boner in the boning hall.

In response to the incorrect payment of wages, and late payments of wages, the Respondent advised that during the course of the Complainant’s employment there had been two WRC inspections. After the first inspection changes were made in the time recording/ clock system and any outstanding arrears were paid to employees.   The Respondent advised that following a further WRC inspection due to complaint raised by the Complainant he would have received back pay of €14. The Respondent acknowledged that Complainant had raised concerns to HR a number of times and where his pay roll details would have been explained each time by HR, and where HR would always have provided the Complainant with records. The Respondent acknowledged that on one or two occasions there were computer errors and these were rectified at the time. Each if the six pay issues raised by the Complainant at the hearing within were responded to by the Respondent ,and where the Respondent advised for the one or two occasions it transpired that the Complainant had been underpaid by a small amount it had been rectified at that time. The Respondent submitted that overall the Complainant had been paid correctly although he would have regularly asked about underpayments.

The Respondent advised that HR were not informed about the theft of the Complainant’s shoes or money, and that HR had met with the Complainant regularly but this issue had never been raised before the hearing.

With regard the disciplinary warning issued to the Complainant on 4th May 2017, the Respondent advised that the Complainant was subject to fair procedures regarding his absence and was issued with a warning as a consequence of a properly administered disciplinary procedure.

The Respondent submitted that the Complainant had telephoned work on 7th July 2017 advising of an incident at home and that he could not come to work. The Respondent provided the Complainant with a weeks’ leave. The Complainant attended work on 14th July 2017 and met with the HR Manager. At this meeting the Complainant handed in his notice on the basis that he had to leave his home in a hurry. The Respondent advised the Complainant was upset at this meeting and the HR manager called the Operations Manager to join in the meeting. At the meeting the Complainant stated that his flat was broken into a few days earlier and a flatmate had been stabbed. As a consequence of the Complainant’s involvement and contact with the Gardaí he felt unsafe and the Complainant indicated he may return to Poland. The Respondent advised that the Complainant did not want to change mind and filled in a resignation letter where the thanked the HR manager for help and asked if his situation changed could come back to work. The Respondent advised it told the Complainant he could contact the HR manager if he returned. The Complainant handed in his resignation on 14th July 2017.

Accordingly, the Respondent submitted it did not act unreasonably with regard to its employment of the Complainant. The Respondent maintained it honoured the Complainant’s terms of the contract of his employment, that it dealt with the Complainant’s grievance regarding his role in an appropriate manner where they met with the Complainant on a number of occasions to explain their position and offer some alternatives which were not taken up by the Complainant. The Respondent argued it had addressed in a timely manner the Complainant’s pay issues for the handful of occasions where the Complainant reported discrepancies, but it was only on a couple of occasions there was an error and where this was remedied immediately. The Respondent also maintained that the disciplinary sanctions which were issued to the Complainant were justified.

The Respondent advised that the Complainant did not exhaust all internal procedures with regard to the reasons he has submitted for his constructive dismissal, and where the Complainant had handed in his resignation on 14th July 2017 due to a personal matter and after he had been provided with a weeks’ leave to deal with that issue.

CA-00016705-001 Complaint under Section 7 of the Terms of Employment (Information) Act, 1994

The Respondent advised that there were no changes in the title or nature of work that the Complainant was employed as. As mentioned above, the Respondent maintained that in accordance with the Complainant’s contract of employment, which was submitted to the hearing, the Complainant was deployed in the abattoir, and where he was also employed occasionally in the boning hall. The Respondent argued that the contract was drafted to demonstrate that flexibility.

The Respondent maintained it did not change the Complainant’s terms and conditions of employment. It stated that he was employed as a Deboner/abattoir operative where his contract stated he would be operating in the boning hall/abattoir as required. It maintained these conditions never changed. It further stated when the Complainant was deployed in the boning hall he did not demonstrate the skills to operate at the level required and was therefore only occasionally deployed in the boning hall.

CA-00016705-002 Complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The Respondent maintained that the complaint under the Protection of Employees(Fixed Term Work) Act 2003 was unclear and that the Complainant was employed on a permanent contract of employment.

Findings and Conclusions:

CA-00016678-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The breach of a contract of employment is a very serious matter and which in cases of unfair dismissal, requires an examination of whether an employer acted fairly. This test is a demanding one involving a mix of both procedural and substantive issues. The onus falls on the employer in such cases to justify any termination. In cases where an employee breaks the contract, and then seeks to pursue the employer for constructive unfair dismissal, as in this case, the bar is set just as high. Likewise, the burden of proof, which now passes to the employee, is set at a high level.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the Complainant’s resignation, and something that represents a repudiation of the contract of employment. In this regard The Supreme Court has said that: ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’ (Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61).

In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour. In this case the Complainant has claimed that he was constructively dismissed as a consequence of the Respondent’s continued errors and deficiencies of his payment of wages; an unfair disciplinary procedure where he was provided with a warning; a failure to deal with his complaints regarding a theft; and an ongoing failure of the Respondent to deploy him in the role which required a higher level of skills whilst the Respondent appointed less qualified people to the role.

Having considered matters I acknowledge that the Complainant is of a strong opinion that he was employed as a Boner and where he should have been working in the boning hall at a higher level of pay. He maintained he was capable of this work as he had worked with a former employer at a higher level. Whilst I acknowledge the Complainant felt strongly about his skill set and this is a primary complaint of the Complainant, I am also satisfied that the Respondent has provided reasonable grounds regarding its concerns about the skill level of the Complainant, and having assessed the situation it was not feasible to deploy him at the level of skill that he believed he was capable of. The evidence provided supports that the Complainant was offered other roles to develop the skills, but he did not accept these roles.

Whilst I acknowledge that the Complainant had experienced some underpayment of wages, I am satisfied that following a WRC inspection of matters issues were regularised and the occasional time where there was a shortage of pay these matters were dealt with at the time by HR and where HR would have made themselves available to address any concerns that the Complainant had. I am not satisfied that the Complainant has provided evidence that there was a level of underpayment as suggested or that the Respondent failed to deal with his pay requests when they arose.

I am also satisfied, based on the evidence provide, that the Respondent dealt with a disciplinary matter appropriately and was entitled to issue a written warning to the Complainant regarding his attendance.

The evidence supports that the Complainant resigned from his position and 14th July 2017 as a consequence of what appeared to be personal issues at the time. Whilst I acknowledge the Complainant was unhappy that he was not redeployed to a higher level of skill, which clearly has been a major issue for the Complainant, overall, I do not find the Respondent has behaved unreasonably towards the Complainant, or that the Respondent actions or omissions are such that amounts to intolerable or even unreasonable behaviour of the Respondent. I therefore do not find the Complainant was unfairly dismissed.

CA-00016705-001 Complaint under Section 7 of the Terms of Employment (Information) Act, 1994

Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that 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…particulars of the terms of the employee’s employment.       

Section 5(1) of the Act requires that whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3…the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than 1 month after the change takes effect,

Based on the evidence provided I am satisfied that the Respondent did provide the Complainant with his written terms and conditions of employment upon appointment on 16th June 2014. As the written terms of employment state the Complainant was appointed as a Deboner/abattoir operative and where he would be deployed in either the boning hall or abattoir. I’m satisfied these conditions did not change during the course of the Complainant’s employment.

I acknowledge the Complainant believed that he would be deployed as a Boner in the boning hall and at a higher level of skill and higher rate of pay to that mentioned in his contract. I am satisfied the Respondent provided credible evidence that it had concerns with regard to skill level of the Complainant and accordingly was not in a position to deploy the Complainant to a higher level beyond that of an operative which was the position he was employed as. I therefore do not find the Respondent is in breach of its obligations under the Terms of Employment (Information) Act 1994.

CA-00016705-002 Complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

In accordance with the Protection Of Employees (Fixed Term Work) Act 2003, a “fixed-term employee” means a person having a contract of employment entered intodirectly with an employer where the end of the contract of employment concernedis determined by an objective condition such as arriving at a specific date, completinga specific task or the occurrence of a specific event as the Complainant was employed on a permanent contract.

As the Complainant is on a permanent contract of employment, the Protection of Employees (Fixed Term Work) Act 2003 does not apply to the Complainant.

Decision:

CA-00016678-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

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.

In order to prove constructive dismissal, the claimant must clearly show that there was no other alternative option open to him other than leave his employment. It must be demonstrated that all reasonable alternatives have been considered.

Having considered the evidence I have not upheld that the Respondent acted in a manner that could reasonably be adduced as an act or omission that would amount to a constructive dismissal. Whilst I acknowledge the Complainant was unhappy with his employment conditions I have found that the Complainant resigned on 14th July 2017 following a personal issue.

The case of unfair dismissal is not well founded and therefore is not upheld.

CA-00016705-001 Complaint under Section 7 of the Terms of Employment (Information) Act, 1994

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

In accordance with Section 7 of the Terms of Employment (Information) Act, 1994 I find that there were no changes made in the Complainant terms and conditions of employment. The complaint is not well founded and therefore falls.

CA-00016705-002 Complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

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

In accordance with Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 I find that the complaint was not a fixed term worker but was on a permanent contract of employment. I therefore decide the complaint is not well founded and therefore falls.

Dated:   November 22nd 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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