ADJ-00011485

Complainant

Respondent

Anonymised Parties

A kitchen Assistant

A Company of  Direct Provision

Act

Complaint Reference No.

Date of Receipt

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

CA-00015403-001

27/10/2017

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

CA-00015403-002

27/10/2017

This case concerns a claim for Unfair Dismissal and Payment for the notice period on behalf of a Polish National. The Complainant is a Lay Litigant who was accompanied by an Interpreter at hearing.

During November and December ,2017, a named Respondent party on the complaint form disputed owning, directing, or affiliation with the company named on the complaint form. This detail was shared with the complainant in April 2018 who responded that the named company was trading. He also submitted that the CRO (Company Registration Office) had provided details of a slight variation in the company title and he sought to amend the complaint form which was refused by the WRC and instead he was advised that he could submit a new claim with a different named Respondent.

There is no further correspondence from either party on file until late September 2018, when both parties were invited to attend the scheduled hearing using the presiding contact details of both parties. The Complainant attended and there was no appearance by or on behalf of the Respondent and no reason given for the non-appearance.

A Preliminary issue then arose on the correct legal entity to be addressed as the Respondent in the case. I explained to the complainant that I had no means open to me to amend the title of the Respondent in their absence. The Complainant confirmed that he had not taken up the WRC suggestion that he was permitted to submit a new complaint in 2018. I gave the Complainant a break to consider his position, mindful of his Lay litigant status. I reconvened some time later to hear that the complainant wished to press on with his complaint in its present format as he needed a decision in the face of difficulties he had experienced regarding obtaining a reference for the period of employment.

I acceded to this request and heard from the complainant. The Complainant helpfully submitted details of a Pay Slip, P60 2012-2016 inclusive and a Statement of Terms of Employment dated July 2011 all of which listed the current named Respondent as the Employer. I would have liked to have met a company representative to offer me some clarification on this key point, but no representative was forthcoming.

There was no appearance by or on behalf of the named respondent. The sole communication on the electronic file refers to a letter dated 21 November from an apparently private residence in a southern city. It stated:

I am writing to inform you that I am neither owner, Director nor have I any affiliation with a company called Company X (name on file). the Company Registration Office will verify this.

This was followed some 3 weeks letter with a re-affirmation that the named respondent had nothing to do with Company X (name on file).

The Complainant outlined that he had worked as a Kitchen Assistant for the Respondent who ran a Direct Provision service for Albanian refugees in the west of the county. He had commenced work on 4 July 2011 and had been dismissed on grounds of gross misconduct on 24 July 2017. The Complainant exhibited a written statement of terms of employment from July 2011 which named the Respondent in the way the company was listed on the complaint form. the Complainant submitted that he worked variable hours but mostly 8 hours a week for a nett payment of €82.00 per week. On occasion, he worked a five-day week. There was a total of 8 employees, 4 of whom were kitchen based. He had not found work post his dismissal and was subsisting on € 124 per week on job seekers benefit.

CA -00015403-001 Unfair Dismissal

The Complainant submitted that he had been omitted from a Pay rise round in 2014, where others had received a 50 cent per hour pay rise. His hours were then divided into 3 divisors and he was left covering locum sick and annual leave. He eventually secured the increased rate.

He submitted that he had an accident at work in august 2015 which necessitated 9 months unpaid sick leave. He returned to work in June 2016, following a consultation with a company Doctor. He stated that he had a back to work meeting with the Company CEO and the Local Manager. He understood from the CEO that he was to return to work independently on a revised shift of 6pm to 2am without additional pay. He had worked day time previously. He lodged a separate Personal Injuries complaint.

The Complainant stated that he worked hard at the Refugee Hotel and was without incident until he became subject to a complaint of an Interpersonal nature. The Complainant outlined that he had come to work on 18 May 2017, where he was taunted by a co-worker, Ms A who directed profanities towards him. He challenged this unwelcome behaviour and walked out of the kitchen swearing. the Complainant confirmed that Ms A had conflict with everyone.

Ms A submitted a complaint of the incident one week later, following which the complainant was suspended for vulgar behaviour. Three meetings followed with a Human Resource practitioner, where the complainant disputed the facts he was presented with, but he was not provided with any notes of these meetings.

The Human Resource practitioner undertook to complete an Investigation into the complaint and promised an outcome. He also undertook to speak to Mr B, the named party on the letters received by the WRC in November and December 2017. He last met the Human Resource practitioner on July 7, 2017 who told him that “next time I will meet you with my decision “

The Complainant stated that he received a phone call of 20 minutes duration at 3.40 pm on 24 July 2017 from the service Manager. The Complainant sought to enunciate that he didn’t want Ms A to be punished and there two sides to every story. the Manager confirmed that he was being dismissed and an instruction issued to collect documentation. The Complainant expressed a strong view that his dismissal was totally unwarranted but attributable to his PIAB complaint which was still outstanding.

The Complainant sought to appeal his dismissal and wrote a response to his letter of dismissal. He delivered it in person only to have it returned to him by the Chef one week later.

The complainant submitted that his former employer had not complied with due process or natural justice. He contended that he had been unfairly dismissed.

The Complainant described a negative personal and psychological impact of his dismissal, he did not want to leave the house and held a high level of disbelief given his zero history of conflict. He confirmed that he was available for work but had been unable to secure new work.

I am satisfied

I have taken some time to review the documents submitted by the complainant.

CA -00015403-002 Payment of Wages

The Complainant submitted that he was owed payment of 4 weeks in lieu of notice governing the period 4 July 2011 to 24 July 2017.

CA -00015403-001

This is a claim for Unfair Dismissal. I have considered the responses which followed the notification of claim to the Respondent in the case, i.e. the letters of November and December 2017. On considering the documentation submitted by the complainant at hearing, I was immediately struck by the omni presence of the name of Mr A, the signatory of the Nov/Dec letters to WRC and repeated on the letter of Dismissal. I did not have the benefit of meeting Mr A. I believe It would have helped me in this decision-making process, if the named respondent had sent a representative to the hearing to assist me in hearing from both sides. This is not an unusual practice where parties’ names lack clarity on either side. The Complainant bears the responsibility on identifying the correct legal entity and he submitted that the company was trading in 2018.

My search of the CRO yielded mixed results on the numbers submitted by the complainant. The first number identified a company with a very similar name albeit with one additional wording incorporated. The second company appears to have ceased trading in 2000. It is of note that the complainant address this named company in his appeal which did not run. The Complainant could not explain his rationale for this action. I could not readily identify the name respondent company on the CRO based on the information submitted.

I cannot accept that Mr A was as remote from the case and the circumstances which befell the complainant as he made out in his letter apparently sent from a private address. After all, the primary letter of complaint named the Respondent and attached the company address. This was the sole address in the WRC possession until, Mr A heralded the private address. The company address served as the first named contact for the respondent. It is not lost on me that Mr A appears to have received WRC notifications to the company address and followed on with a private address in response which distanced him from the company. This seemed to me, at least to be a measure of avoidance.

The Complainant has exhibited a Written Terms of Employment which were accepted by the complainant on 4 July 2011, a Pay Slip and 5x P60s, all of which carry the company named on his complaint form. Mr A is mentioned as  CEO and is cited as the decision maker in the letter of Dismissal  and the point of contact for Appeal   in the Disciplinary procedures. He is also mentioned as the “Go TO “person for the Human Resource Practitioner to collaborate with to secure an outcome to his investigation. Perhaps an extraordinary coincidence of a dual identity of a two named CEOS of Direct Provision centres may unfolded here , however , it is more likely than not that the Mr A who responded to the WRC notification is most likely the CEO who dismissed the complainant .

Section 1 of the Act defines an employer as the person by whom the employee is or was employed under a contract of employment. I have inferred that the complainant was employed by the Respondent and Mr A was the CEO of that enterprise, albeit the ongoing confusion that prevails on the correct title.

In cases of Unfair Dismissal, the burden of proof rests with the respondent. Section 6(1) of the Act outlines this responsibility of the employer to satisfy the test of establishing substantial grounds justifying the dismissal to render a dismissal fair.

I have not heard from the respondent on the substantive case. I am satisfied that the Respondent was on notice of the Hearing.

SI 146/2000 serves as the statutory code on Grievance and Disciplinary issues at work. In addition, the complainant submitted some details of the company policies. My role in this case is not to decide if what the complainant did was wrong but rather to consider the facts of the case through the prism of “the band of reasonableness “.

The Complainant is a Polish National who expressed a growing alienation from his employer via a unilateral realignment to night work. He was back at work post a disc condition 11 months when the issue of the altercation with the co-worker was raised for which he was suspended with pay pending an investigation. I was not given any documentation which governed the commencement of this suspension. I was unable to ascertain whether it constituted a” holding or punitive suspension” Morgan V Trinity College Dublin [2003]3IR 157. I was not given any details of a Terms of reference for an Investigation.

At the WRC hearing, the complainant contended that his dismissal was an excessive and disproportionate action under the company disciplinary procedures. However, I noted that his letter of appeal was worded in the spirit that a Bullying Investigation had taken place. There is some residual unresolved inconsistency here.

The Complainant lost his job through an allegation of gross misconduct. This is a very serious charge. In following Justice Noonan’s considered analysis of the circumstances which predated James Reilly’s dismissal in Bank of Ireland V Reilly [2015] IEHC 241, it is of note the weighting he placed on a lack of direction of zero tolerance in terms of a breach of email policy. This is analogous to this case. The Complainant contended that he had a clear disciplinary record on the date of the first named incident in the case on 18 may, 2017.

In reviewing the company procedures, I could not identify a cross match where a single recorded episode of conflict supported by here say and sometime undated statements could be reasonably elevated to grounds of gross misconduct. I appreciate that I have not have sight of the Investigation completed in this case, however I found a clear departure from best practice, natural justice and due process when the complainant was dismissed by way of an alleged phone conversation. I found the complainants recollection on the timing of this call to be shaky. I am also slightly sceptical as to the reason he presented his appeal in person and accepted its rejection.

The Complainant makes much of the PIAB claims contribution to his demise. This matter appears to be live in parallel proceedings.

I have made these findings based on the uncontested evidence offered by the complainant, a Polish national and from the documents he submitted. The Complainant had worked at the Centre for 6 years at the moment of his dismissal . He was entitled to receive due process and the opportunity to attend a Disciplinary hearing prior to any decision taken to dismiss him.

The Complainant also presented a free-standing sheet of paper which appeared to document Government spend to Agents of Direct Provision. I have not found this to be relevant to the case before me which asks whether there were substantial grounds justifying the complainant’s dismissal ?I have no desire to be side tracked into the politics of Direct Provision .

In the absence of any response from the Respondent to the substantive case, I am bound to find that there were no substantial grounds justifying the dismissal. I have found merit in the complaint.

CA -00015403-002

I have found merit in this aspect of the complaint. I have established that the Complainant was unfairly dismissed, and he is entitled to payment in lieu of notice. I find the complaint to be well founded.

Decision:

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

CA -00015403-001

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the Complainant was unfairly dismissed. I have had regard to his submitted table of loss and mitigation. I have established that compensation is the only practical solution I can award in the case, given the uncertainty about the core function of the company. I order the Respondent to pay the complainant €4,500 in compensation for the complainant’s loss both past and prospective arising from his dismissal.

CA -00015403-002

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to this complaint in accordance with Section 5 of the Act.

I have found that the complainant was unfairly dismissed. I have found merit in his claim for payment in lieu of notice. I award the complainant 4 weeks’ pay at €82 per week which equates with €328 .00 as compensation for the breach of Section 5 (1) of the Act.

Unfair Dismissal, Deduction in Wages.