ADJ-00008144

Complainant

Respondent

Anonymised Parties

A Production Machine Operator

A Manufacturing Company

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-00010815-001

12/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00010815-002

12/04/2017

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

CA-00010815-003

12/04/2017

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

CA-00010815-004

12/04/2017

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

CA-00010815-005

12/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00010815-006

12/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00010815-007

12/04/2017

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

CA-00010815-008

12/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00010815-009

12/04/2017

This dispute involves 9 claims by the complainant against the respondent.   These claims were submitted on the 12th of April 2017.

The complainant has submitted that he was unfairly dismissed by the respondent on the 16th of March 2017 following a disciplinary process in which the claimant alleges no procedures were followed. It is submitted that the disciplinary procedures used by the Respondent were unfair and / or inadequate. The complainant has also submitted claims under the Organisation of Working Time Act, The Terms of Employment (Information) Act, the Safety Health and Welfare at work Act, Minimum Notice & Terms of Employment Act and the Payment of Wages Act.

The complainant submits that

He did not receive a statement of his terms of employment as required by law,

He was unfairly dismissed   as no procedures were followed for his dismissal,

He was not paid his proper public holiday entitlements,

He did not receive his correct annual leave entitlements,

He did not get rest breaks or did not get them at the correct times,

He was dismissed after raising a grievance in respect of a Health and Safety issue,

He did not receive his minimum notice period or pay in lieu of notice,

He was not notified of his hours (starting and finishing times) under Section 17 at least 24 hours in advance,

He did not receive appropriate payment in lieu of notice of termination of his employment.

The respondent submits that

The complainant Mr. M was not unfairly dismissed from his Employment but that he was dismissed for gross incompetence and negligence following his involvement in 16 quality incidents which cost the respondent €93,000 due to machine down time,

The Claimant commenced employment on 14th April, 2014 as Production Machine Operator,

the Claimant’s work was initially satisfactory, but problems soon became apparent and the complainant’s Supervisor raised with him the issue of his failure to follow standard operating procedures,

These failures necessitated investigations resulting in numerous CAPA – Corrective Action Preventative Action (CAPA) Reports,

An analysis of the CAPA reports shows that The Claimant was directly involved in production errors leading to loss of product and significant monetary loss to the Company on the following dates: 15th March, 2016, 14th April, 2016, 9th May, 2016, 7th September, 2016, 9th December, 2016, 9th January, 2017, 30th January, 2017, 13th March, 2017,

The Claimant was given a verbal warning on 22nd March, 2016 and a written warning on 25th May, 2016 in accordance with the disciplinary procedure in the workplace,

Prior to the issue of these warnings the Claimant was spoken to informally with a view to helping and mentoring him,

on the 13th March, 2017 a major production incident, in which the Claimant was directly involved, occurred which led to loss of product and significant monetary loss to the respondent,

on 14th March, 2017, the Claimant was suspended pending an investigation. The finding of the investigation was to dismiss the Claimant, he was notified of this by letter dated 16th of March, 2017,

the investigation was conducted by Ms. B Quality Manager, and Mr. D, Production Supervisor and disciplinary hearing was carried out by Dr. G, Managing Director,

The Claimant was given the opportunity to appeal this decision which he did by letter dated 22nd March, 2017,

the appeal was heard by Mr. J and a letter dated 28th March, 2017 was issued to the Claimant advising him of the outcome affirming the decision to dismiss,

the decision of the employer to terminate the complainant’s employment was reasonable and justified, and has only been carried out after exhausting all reasonable efforts to help the Claimant,

the Respondent’s disciplinary procedure in this instance followed the disciplinary procedure given to all employees in October, 2015 and which itself follows SI 146/2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

CA-00010815-001 Terms and Conditions of Employment -Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The complainant submitted that he did not receive a statement of his terms of employment. The respondent prior to the hearing and at the hearing provided a copy of the complainant’s contract of employment setting out the terms and conditions under which he was employed.  

Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship. Where this is not provided, the employee has recourse to the Workplace Relations Commission

It is submitted that the complainant did not receive a statement in writing containing particulars of the terms and duration of rest break periods referred to in sections 11, 12 and 13 of the Organisation of Working Time Act contrary to the Terms of Employment (Additional Information) Order 1998.

The complainant in this case submit s that he did not receive a contract or a statement of his terms and conditions.   Witness for the respondent Mr. G and Managing Director told the hearing that he had come on board with the respondent company in 2015 and has since his arrival brought the company’s HR function up to date. He stated that the complainant was issued with a contract and a Company Handbook in November 2015 and that this contract complied with the requirements of the Act.     The complainant accepted that he had received this contract.   It is submitted that the within complainant was lodged on 12th of April 2017 thus any complaint of failure to provide a contract or of a continuing failure to provide a contract would have to have taken place in the 6 months prior to the lodging of the complaint i.e. from 13th of October 2017.    The contract was provided in November 2015.

Witness for the respondent, Mr. G also told the hearing that contracts were provided to all staff once he came on board and that a company handbook was a also provided. Mr. G went on to state that he went through the contract and the company handbook page by page with the employees and added that where a staff members English was not as good as others translators were brought in to ensure that workers were aware of their terms conditions and rights. The complainant did not dispute this.

The complainant’s representative advised the hearing that the contract did not contain the respondents full name.   The respondent in reply to this stated that it contained the respondents trading name.   The complainant at the hearing accepted this.   The complainant submitted that the contract contained no reference to Sections 11, 12 and 13 in respect of breaks.

The respondent in response to this stated that the contract does contain a reference to hours of work and lunch breaks and times of lunch breaks.  This is evident from the contract. The respondent went on to state that all employees are provided with 15 minute breaks in the morning and a lunch break of 30 minutes and where a person works beyond 5pm they also receive another 15 minute break. The respondent stated that there is a supervisor in charge to ensure that people take their breaks as well as a record of breaks which is signed by everyone at the time of taking breaks. These records of breaks were provided to the Commission as evidence.

Mr. G told the hearing that he had drawn up the contract document in compliance with a direction from a WRC inspector in drawing up the contract and stated that he had been advised by the inspector that the contract complied with the legal obligations under the Act.  

I am satisfied that the complainant did receive a contract and that the contract sets out the details of lunch breaks and times. I am also satisfied that the complainant is aware of his break entitlements from the system which the respondent has in place for the recording of breaks.

I am thus satisfied that this complaint is not upheld.

CA-00010815-002 Unfair Dismissal Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Claimant, Mr. M claims to have been unfairly dismissed from his employment by virtue of the allegation of “no procedure” as set out in his WRC claim form. The Respondent rejects this claim and states that the Claimant who was dismissed for persistent negligence and misconduct amounting to ‘gross misconduct’ and was afforded a fair procedure, in accordance with the disciplinary procedure set out in the company handbook. The respondent told the hearing that this handbook was given to all employees in October, 2015 and that the disciplinary procedure contained therein follows SI 146/2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

The respondent submits that the complainant was afforded considerable forbearance and patience during his term of employment and was given sufficient warnings of his shortcomings in the discharge of his duties, and that he was given sufficient time to meet the required standards of performance, and that the decision to terminate was reasonable and necessary in the circumstances.

Legislation

The Unfair Dismissal Act, 1997 stipulates that: Section 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.”

Section 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,…”

The Applicable test to establish whether there were substantial grounds for the Complainant’s dismissal is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.” An adequate investigation has to be assessed by the standard that could be objectively expected of a reasonable employer as per J Sainsbury Plc v Hitt (2003) ICR 111.  In relation to procedural fairness, I am guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures). Thus the question for me as Adjudication Officer is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss was one that a reasonable employer might have made. (C. Hayes v P. Kinsella T/A Kinsellas of Rocklands UD690/2012).  

The respondent advised the hearing that the complainant Mr. M commenced employment on 14th April, 2014 as Production Machine Operator with the respondent. The respondent provided a copy of the complainant’s contract in support of this.

The Respondent advised the hearing that it manufactures products for use in the medical device and pharmaceutical industry.  The respondent stated that the quality of the products produced must maintain critically high standards due to the nature of the products, the nature of the industry, and the essential trust and confidence to be maintained with customers. The respondent advised the hearing that the complainant during his employment had been responsible for 16 quality incidents due to his consistent failure to follow procedures. The respondent went on to state that it manufactures products for use in medical devices specifically inhalers and stated that the quality of the product is paramount and went on to state that the risk of failure of a product in the field could have very serious consequences.   The respondent advised the hearing that each of these quality incidents had resulted in the generation of a Corrective Action Preventative Action (CAPA) report the respondent presented these reports to the hearing and each of the incidents was outlined in the reports.

The respondent advised the hearing that a CAPA report creates a significant bureaucratic and reporting obligation and may lead to parts and material being quarantined and ultimately discarded.   The respondent advised that it also slows down production, impacts on the production schedule of the business and causes financial loss to the company.

The respondent advised the hearing that an analysis of the CAPA reports shows that the Claimant was directly involved in a number of production errors leading to loss of product and significant financial loss to the Company on the following dates: 15th March 2016, 14th April, 2016, 9th May, 2016, 7th September, 2016, 9th December, 2016, 9th January, 2017, 30th January, 2017, 13th March, 2017.    

The respondent went on to state that these incidents had cost the respondent €93,000 due to its having to halt production on a particular machine for four weeks following a mistake made by the complainant.

The respondent at the hearing provided copies of these reports and went through the details of these reports which resulted from quality incidents in which the complainant was involved the details of these reports. Examples of the incidents in which the complainant was involved include:

In March 2016 the drum coating on a machine needed replacing after the complainant had changed settings on a machine which he was not authorised to do.   The alarm on the machine was tampered with.   The complainant was called to a meeting on 22nd of March 2016 following this incident and was issued with a verbal warning due to the fact that he made and admitted to making unauthorised changes to a machines settings.

On 14 April 2016 the complainant set up a machine incorrectly and did not follow the correct protocol or procedure as he felt the fix he put in place would keep the production going. On 9 May 2016 the complainant was found not to be not following correct procedure for washing parts of the machine.   The complainant also changed the grease cartridge on a machine without knowing how to do it.   The complainant was called to a meeting on 25th of May 2016 where he was issued with a written warning for failing to follow procedures and following a number of performance issues which had resulted in quality incidents.   The respondent told the hearing that prior to the issue of these warnings the Claimant had been spoken to informally with a view to helping and mentoring him.

The respondent told the hearing that the complainant was provided with a copy of the disciplinary procedures at this meeting and was told to stop and ask questions if or when he had any issues while performing his work duties.   The complainant was also provided with additional training after this meeting in an attempt to help him to improve his performance. The minutes of the meeting support this version of events.

The respondent advised the hearing that following this the complainant continued to show a failure to follow procedures and a number of additional CAPA reports were issued in relation to quality incidents involving the complainant.   The complainant was advised that despite adequate time to improve and a clear direction to stop and ask questions if unsure of any of his work procedures,   the complainants failure to follow procedures continued. The respondent provided further details of incidents involving the complainant as follows:

On 7 September 2016- there were black fibres on a machine which were not detected by the complainant upon inspection, on 9 December 2016- the complainant failed to follow documented work instructions for removing waste from machine as he stated it was very time consuming to do this, on 9 January 2017 -the complainant failed to follow a work instruction and damaged part of the machine, on 30 January 2017-the complainant was found not to be following the correct procedure as outlined in work instructions which he stated was in order to save time as he felt his way was quicker. On 30 January 2017 – problems arose with machine which caused 10 rolls of medical tape to go to waste, upon investigation the complainant admitted to having removed part of the machine the day before by mistake and had not reported it but had repositioned it himself the next day and the incorrect positioning had caused a build-up of adhesive residue resulting in 10 rolls going to waste.

The respondent went on to state that the complainant was involved in a major production incident on the 13th March, 2017 which led to a loss of product and significant financial loss to the respondent. In this instance the complainant had misjudged a situation and pressed the emergency stop on the machine which cost 4 weeks of production.    The respondent advised the hearing that the complainant at the investigation of this matter stated that he did not know that the emergency stop was only for actual emergencies and that he had used it when he heard a banging noise coming from the machine.  

The respondent told the hearing that a review at this point of the Complainant’s work performance showed a persistent pattern, despite training and mentoring and assistance, of failing to follow basic standard operating procedures, for example failing to check the setup of machines when assuming a shift and/or altering the setup of machines for no apparent reason.   The respondent stated that one of the most serious concerns with the Claimant’s performance was his inclination to cover up errors leading to more cost for the Respondent in having to carry out Corrective Action Preventative Action (CAPA) investigations to source the problem. The respondent stated that this has led to a loss of trust and confidence by the employer in the Claimant.

The respondent told the hearing that following the production incident of the 13th of March 2017 the complainant was suspended on 14th March, 2017 pending an investigation.  The respondent told the hearing that the investigation was carried out by Ms. B, Quality Manager, and Mr. D Production Supervisor. The respondent told the hearing that following this investigation a disciplinary hearing was carried out by Dr. G, Managing Director following which a decision was made to dismiss the complainant.  

The respondent stated that the complainant was given the opportunity to appeal this decision which he did by letter dated 22nd March, 2017 on the grounds of his length of time with the company. The respondent told the hearing that this appeal took place on the 28th of March and was heard by the Managing Director, Mr. J.  Mr. J upheld the decision to dismiss the complainant and a letter dated 28th March, 2017 was issued to the Claimant advising him of the appeal outcome and affirming the decision to dismiss him.

It is submitted on behalf of the complainant that the complainant’s dismissal was procedurally unfair as he was not advised prior to the disciplinary hearing that his job could be in danger.  

It is clear from the evidence adduced that the complainant was suspended pending the investigation into a matter where he had pressed the emergency stop on a machine the result of which had cost the respondent four weeks of production.   It is clear from the CAPA report into the matter that this incident had serious reprecussions for the respondent and I am satisfied from the evidence adduced that the complainant would have been aware of the seriousness of the incident and of the resultant financial losses to the respondent. In addition, the complainant had prior to this incident had received a verbal warning and a written warning in respect of his failure to follow procedures and had also been involved in 15 other incidents which had resulted in the generation of CAPA reports.   These reports indicate that each of these incidents were investigated and that the complainant was involved in such investigations.   I am satisfied that a reasonable person in this position would be aware of the seriousness of the situation and given that he had a copy of the respondent’s disciplinary procedures he would also have been aware that dismissal was both a possible and likely outcome for him given the seriousness of the most recent incident and given the previous incidents in which he had been involved.  

In addition, I note that the complainant had previously raised a Health and Safety issue with the respondent and had invoked the grievance process in raising this issue in January 2017. It is clear from the evidence adduced that the complainant requested and was permitted to be accompanied by a work colleague during the meetings involved in the course of this grievance. I am thus satisfied that the complainant was aware of his right to be accompanied at such meeting.

I am also satisfied from the evidence adduced that the complainant was aware that his dismissal was a possible and likely outcome for him given the seriousness of the most recent production incident and given the previous incidents in which he had been involved.     The complainant in this case was suspended pending the investigation into the incident and following the investigation he was called to a disciplinary meeting following which he was dismissed.    The complainant was then advised of his right to appeal and he did appeal that decision though not on the basis of procedural unfairness or new information but on the basis of his length of employment with the respondent.

The complainant submits that the appeal process was flawed as the complainant was not provided with an opportunity to cross examine witnesses at the appeal hearing.   While I note that the complainant was not afforded this opportunity at the appeal hearing there is no dispute in the present case that the complainant was the person who pressed the stop button on the machine and that this halted production resulting in huge financial loss for the respondent.  In addition, it is clear from the CAPA reports provided that each of the incidents in which the complainant was involved was investigated and in some cases corrective action and further training was provided to the complainant following the incidents. The complainant has not denied his responsibility in these incidents and has also accepted his verbal and written warning for previous incidents of incompetence/negligence.

The respondent submitted that the complainant was dismissed due to his incompetence and negligence and states that such negligence amounts to Gross Misconduct and refers to its definition of Gross Misconduct as including “ extreme or persistent negligence in duties….”

It is clear from the evidence adduced that the Respondent afforded the Complainant numerous opportunities to improve his performance and provided additional training to assist him in seeing to achieve the required improvement.  I am also satisfied that the complainant was dismissed due to negligence and incompetence following a history of quality incidents culminating in the most serious incident of 13th of March 2017 which cost the respondent 4 weeks of production amounting €93,000 in losses.    I am satisfied from the totality of the evidence adduced here that the respondent’s decision to dismiss the complainant was reasonable and justified having regard to the circumstances of this case.

I note that the complainant appealed the decision to dismiss him and the grounds he cited for the appeal were “the length of time he was employed by the respondent”,   I note that he did not appeal on grounds of new information or on procedural unfairness. The complainant submits that the failure to allow the complainant to be accompanied by a representative at this appeal hearing and to cross examine witnesses amounts to a procedural unfairness and a failure of the respondent to follow its own disciplinary procedures.

I am satisfied from the evidence adduced that the Complainant was aware throughout the process of the details of the charges against him and had attended meetings in respect of each of the CAPA reports at the time of each report.  

While I note that the respondent’s procedures were not perfect and that there were some flaws in the procedure however having considered the totality of the evidence adduced in this case and having regard to the circumstances and the monetary loss incurred by the respondent due to mistakes made by the complainant, I do not consider an award of compensation to be appropriate or necessary in the circumstances.

Therefore, in light of the foregoing and having regard to all of the circumstances in this case, I am satisfied that the Respondent’s decision to dismiss the Complainant was fair and reasonable in that it was arrived at following the application of the Respondent’s Disciplinary procedure.  

Accordingly, I am satisfied that there were substantial grounds justifying the dismissal and that the dismissal was not unfair in the circumstances. Determination The Complainant was not unfairly dismissed by the Respondent.

CA-00010815-003 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The complainant submitted that he did not receive his public holiday entitlements. The respondent disputes this and states that public holiday entitlements are set out in the contract of employment and that the complainant was paid for these in accordance with his contract. The respondent provided these details in the contract of employment to the hearing.   The respondent also provided a statement of the complainant’s public holidays entitlements and records of those taken by the complainant as well as records of public holidays in respect of which the complainant was paid.  These were also reflected in the complainants payslips. These records support the respondents case that the complainant received his public holiday entitlements and payment in respect of same.

I am thus satisfied from the totality of the evidence adduced that this complaint fails and is not upheld.

CA-00010815-004 Complaint seeking adjudication by the Workplace Relations Commission

under section 27 of the Organisation of Working Time Act, 1997

The complainant submits that he did not receive his paid holiday annual leave entitlements. The respondent advised the hearing that the complainant received his full annual leave entitlements and the respondent produced records of all of the holidays taken by the complainant. The respondent went on to state that the complainant had even exceeded his annual leave entitlement in the year of termination of his employment. The respondent provided details of annual leave taken by the complainant during his employment with them which indicated that the complainant had in fact overtaken his paid annual leave entitlement on more than one occasion amounting to an excess of 6 days extra annual leave taken. The respondent also confirmed that the overtaken annual leave was not deducted from the complainant.   I am satisfied from the totality of the evidence adduced that the complainant did receive his paid annual leave entitlements.

I am thus satisfied that this complaint fails and is not upheld.

CA-00010815-005 Hours of Work Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The complainant submitted that he did not get his daily rest period.   The complainant at the hearing stated that he did get breaks but that he could not be 100% sure that his breaks were 15 minutes long or 30 minutes long.   The complainant submits that his breaks were not always taken for the correct length of time or taken at the correct times.   The complainant referred to an occasion where he had taken 27 minutes for lunch as opposed to 30 minutes.   The respondent provided the Commission with records of breaks taken.     The respondent told the hearing that the complainant had taken his breaks as required under the act.     The respondent told the hearing that staff receive a 15-minute break in the morning and a thirty-minute break for lunch around 3 pm. The respondent went on to state that where employees start work at 7 the respondent ensures that their morning break has to be taken before 12.30.   The respondent went on to state that those who are working past five then get an additional 15 minute break in the afternoon.   The respondent added that it had a supervisor who ensured that breaks were taken in accordance with the legislation and stated that these breaks were recorded for each person each day and that break sheets were signed by each person accordingly.  The respondent provided these break records to the Commission and the complainant in response to these records raised issues in respect of the legibility of the records and also in respect of occasions where breaks fell slightly short of the required 30 minutes for example in some instances 27 or 29 minutes were taken for lunch and not 30 minutes. The complainant submits that the times of the breaks were an issue and that the records show that in some occasions the 4.5 hours was exceeded before a break was taken.  The respondent told the hearing that it ensures that all staff take breaks in accordance with their entitlements but stated that the timing of the breaks might not always happen at the exact time due to the fact that it has to ensure that each member of staff takes a break in accordance with their start time.   The respondent stated that the taking of breaks is supervised and recorded but added that it could not stand over people to ensure that they took thirty minutes as opposed to 29 minutes.  

Mr. G witness for the respondent presented as a credible and consistent witness. The complainant who prior to the hearing had submitted that he did not receive breaks, at the hearing of the claim admitted that he had received breaks but added that he couldn’t be 100% sure that he had received them all of the time for the correct length of time. Mr. G witness for the respondent presented as a credible and consistent witness and it is clear from his evidence that he made every attempt to ensure compliance with the legislation once he took over the companies HR role. The complainant in this case made claims in respect of non-receipt of holidays and public holidays all of which he had received and in some case where he had exceeded his entitlements.   Thus, where there are questions raised due to the legibility issues in respect of some records of breaks taken I prefer the respondents evidence in relation to these matters.

I am satisfied from the totality of the evidence adduced that the complainant did receive breaks as required under this Act and while I note the assertion that the breaks might not always be taken at the correct time or to the exact minute I am satisfied in the circumstances that this does not warrant an award of compensation in circumstances of the present case.  This claim is not upheld.

CA-00010815-006 Penalisation Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The complainant submits that he was penalised following a complaint under the Safety, Health & Welfare at Work Act, 2005. The complainant advised the hearing that he had raised an issue of Health and Safety in respect of safe access to a machine under the respondent’s grievance procedure in January 2017 and it is submitted that he was dismissed due to his raising of this grievance. During the hearing copies of emails were submitted which outlined the procedure followed in respect of the grievance which show that a grievance meeting was held in February 2017 and that the complainant was accompanied by his work colleague Mr. J during this meeting.   The respondent advised the hearing that it had welcomed the complainants raising of the safety issue and stated that he was to be commended for raising such an issue. The respondent went on to state that it had agreed with the complainant in respect of the issue raised and that had following this put in place corrective measures to ensure that employees would not need to access the area complained of in the future. The respondent added that it would always welcome suggestions and improvements from staff especially in relation to safety issues.   The note of the grievance meeting supports these assertions. The complainant did not dispute this. The complainant also requested additional training at this meeting and it was agreed that such training would be provided.  

I am satisfied form the totality of the evidence adduced that the complainant was not penalised on foot of this complaint. I am also satisfied given my finding in respect of the Unfair dismissal aspect of this claim that the complainant’s dismissal was not due to his raising of a Health and Safety issue. Accordingly, I find that this complaint fails.

CA-00010815-007 Minimum Notice Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The complainant was employed by the respondent from April 2014 to March 2017 thus the totality of the Complainant’s service is almost 3 years. Section 4(1) of the Minimum Notice & Terms of Employment Act, 1973 stipulates that “An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section”.

Under Section 2 the complainant is entitled to 2 weeks’ notice.

The complainant submits that he did not receive his minimum notice entitlement. The respondent submits that the complainant was paid in lieu of notice and states that this was set out in the letter upholding the decision to dismiss the complainant.

The respondent at the hearing did not argue that the complainant was not entitled to notice following his dismissal for gross negligence and incompetence which it asserts amounts to ‘Gross misconduct’ despite the fact that the company Handbook states that an employee who is dismissed for gross misconduct is not entitled to notice or payment in lieu of notice. The respondent submitted that the complainant did receive pay in lieu of notice in his final payslip of 30th of March 2017. I am thus satisfied that it was the respondents intention to pay the complainant in lieu of notice.

The respondent submits that the complainant was dismissed on the 16th of March but that he continued to be paid on 23rd of March and on 30th of March and that the payslips for these dates support this assertion.   The respondent submits that the payments made on these dates relate to the two weeks pay in lieu of notice.

The respondent produced the payslips to the hearing.  On inspection of the payslips at the hearing the complainant’s representative acknowledged that the complainant had received payments on the week ending 23rd and 30th of March but stated that the payslip of the 30th of March contained less than it should.     The complainant’s representative advised the hearing that as the complainant was paid one week in arrears that the final payment due to him for work carried out up to the 16th of March fell to be paid on the 23rd of March and was paid on this date.   A copy of this payslip was submitted in evidence.

It was confirmed by both parties that a further and final payment was made to the complainant on the 30th of March 2017. A copy of this payslip was submitted in evidence.  

The respondent at the hearing was unsure as to what this payment related to and submitted initially that it contained the complainants two weeks pay in lieu of notice. This payslip contains an amount of €624 which is equivalent to one weeks pay plus an additional sum of €512. The respondent stated that this may be due to the two extra days holidays which had been taken by the complainant and stated that this may have been deducted from his final payslip. The complainant contended that he did not give permission for any such deduction to be made from his payslip.     The respondent undertook to clarify this matter post hearing via a submission.

The respondent clarified post hearing that the €512 related to holiday pay for 2017 holidays and public holiday entitlements.   I accept the respondent’s submission in respect of this payment of €512 which thus means that the payslip of 30th of March 2017 only contains 1 weeks pay and not two as previously asserted.     Accordingly, I am satisfied that the complainant only received 1 weeks pay in lieu of notice and given that he is entitled to receive two weeks pay in lieu of notice I am satisfied that 1 weeks pay in lieu of notice is still outstanding and due to him.

Accordingly I find this complaint to be well founded and I order the respondent to pay the complainant the sum of €624 which amounts to 1 weeks pay in lieu of notice.

CA-00010815-008 Hours of Work Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The complainant submits that he was not notified of his starting and finishing times in advance as he often worked overtime at short notice.   The respondent told the hearing that the complainant knew his starting and finishing times as they were set out in his contract but added that rarely but on occasion overtime became available.   Witness for the respondent Mr. G told the hearing that when overtime became available it was offered to all staff and those who wished to avail of it volunteered to do so.   Witness for the respondent stated that overtime was always offered and was never ordered. He stated that the complainant volunteered to do overtime when it suited him but that there was no pressure to take up the offer of overtime when it was available.    The complainant did not deny this.

I am satisfied from the totality of the evidence adduced that this complaint fails and is not upheld.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00010815-009

The complainant submits that he did not receive the appropriate payment in lieu of notice of termination of his employment.  

In view of my decision in relation to the complaint under the Minimum Notice & Terms of Employment Act, 1973 (CA-00010815-007) I dismiss this complaint. This claim is not upheld.

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

This claim is not upheld.

CA-00010815-001

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The complainant was not unfairly dismissed.   This claim fails.

CA-00010815-002

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

This claim is not upheld.

CA-00010815-003

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

This claim is not upheld.

CA-00010815-004

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

This claim is not upheld.

CA-00010815-005

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

This claim is not upheld.

CA-00010815-006

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

This claim succeeds and I order the respondent to pay the complainant the sum of €624 which amounts to 1 weeks’ pay in lieu of notice.

CA-00010815-007

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

This claim is not upheld.

CA-00010815-008

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

In view of my decision in relation to the complaint under the Minimum Notice & Terms of Employment Act, 1973 (CA-00010815-007) I dismiss this complaint. This claim is not upheld.

CA-00010815-009