Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

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-00019787-001

14/06/2018

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

CA-00019787-002

14/06/2018

The complainant stated that his pay was going to be cut from €12.50 to €9.50 per hour. He wasn’t going to work for less pay. He did attend at the meetings when the new pay scale was discussed with him and he was provided with an interpreter. He did understand after it was explained to him that he pay was not going to change. He didn’t believe them that he wasn’t going to be at a loss. He said he wanted his old job with his old terms and conditions.

He took issue also with the fact that he was going to be moved from his work station He had been moved 2016 and he couldn’t cope.

The old contract said he would work 8 hours per day and the new contract said he would have to work for as long as was required. He wasn’t happy with this. Before the change he would have to stay until 7pm.

He also wanted to do trimming. He used to do it and he was moved. He was told it would be only for a short while but it was for two years.

The complainant accepts that he was provided with an interpreter for all meetings. He doesn’t remember if he could bring a colleague. He accepts that he was given a right of appeal and that he did not appeal.

The handwritten letter dated the 27th November, 2017. His colleague wrote the letter. He signed it .

He tried to find work here but he could not. He returned to Poland and got a job at €4 p/h. He quit that job last week, 31st October 2018.

CA 19787 -002

It was indicated to employees in April, 2017 that a new system of work was being put in pace. It would have an effect on pay structures and hours of work. He was not given a notice in writing of the changes. On the 17th November he received a letter stating that the changes were coming into effect on the 27th November. On the 27th November, he refused to work

In 2016, XX acquired a 50% stake in the business of the Respondent. Following enactment of this joint venture, a review of the contractual arrangements with employees began to take place.

The Respondent began negotiations with the work force in relation to proposed changes to be made to their terms and conditions of employment. Following these discussions and negotiations, the Claimant forwarded correspondence to the Respondent stating that he was not happy with the proposed changes and wished to remain on his original contractual terms. Due to this, the Respondent’s representative’s engaged with the Claimant in individual meetings held on the 24th May 2017 and 4th July 2017. The Respondent conducted an 8 week trial of the proposed pay structure changes with all employees which completed on the 16th June 2017 and following this, a further meeting was had with employees on the 11th July 2017. Post that meeting, employees were furnished with a document and the Claimant stated within that document that he was not in agreement with the revised pay structure. He once again affirmed this by sending a further note to the Respondent on the 18th November 2017.

The Respondent had, following a ballot of all employees, union and non -union, issued notification to all employees on the 17th November 2017, stating that the changes to the pay structure, which had been discussed and trialled with the employees for the previous months, would now come into effect from the 27th November 2017. The Claimant attended for work on the morning of the 27th November 2017 and presented to his employer a letter stated that he was refusing to work and would only return to work on foot of the terms of his original contract.

The Claimant refused to commence his normal duties on the morning of the 27th November 2017 and he and a group of colleagues stated that their actions were a form of a “protest”. After handing the letter referred to above to the Assistant Boning Hall Production Manager, the Claimant went to the canteen and stated that he wished to speak to management about the new pay system. While waiting in the canteen, the Claimant and his colleagues were approached approximately 4 times by the Boning Hall Production Manager, who asked the Claimant and his colleagues to return to their work stations. Most of the Claimant’s colleagues duly returned to work, however, the Claimant and certain other employees, refused. The Claimant then left the Respondent’s premises without authorisation and in blatant breach of management orders to return to his duties.

On foot of this action, the Claimant was suspended with pay in order for the Respondent to be in a position to investigate the matter. Suspension in this regard, was necessary taking into account the Claimant’s refusal to work and in line with the “categories” of when suspensions are necessary, as laid down by Justice Noonan in the case of The Governor and the Company of Bank of Ireland v James Reilly (2015) IEHC 241. A letter was sent to the Claimant on the 27th November 2017, specifying the allegation made against him being:

1.            Refusing to carry out your normal duties

2.            Failing to follow Supervisor request.

This letter informed him that he was being suspended with pay and that he would be contacted regarding the investigation. He was encouraged to have representation at that investigation meeting. A further letter subsequently issued to the Claimant dated the 30th November, 2018 informing him of the appointment of an investigator and that an interview with him was to take place on the 5th December 2017. Again, he was encouraged to have representation and was informed of the serious nature of the allegations that he faced.

The Claimant attended the investigation meeting on the 5th December 2017. An issue arose about the party who the Claimant had wished to bring as representation. The Claimant alleged that that colleague was prevented from attending with him. The Investigator temporarily suspended the meeting to look into this and gave the Claimant an opportunity not to proceed at that time. The Claimant however stated that he was happy to proceed. He was, however, provided with translation services by the Respondent. At his interview, he acknowledged that he had refused to work on the morning of the 27th November 2017 and had ignored the request of management, on several occasions, to return to his work station. He further acknowledged that he had made the decision to walk off site without authorisation. As a result of this admission, the investigator found that there was a case to answer and referred the matter back to the Respondent.

Under cover of correspondence dated the 14th December 2017, the Claimant was invited to a disciplinary hearing scheduled for the 19th December 2017. In this letter, he was again informed of the serious nature of the allegations that he faced and advised on his rights to representation. The Claimant duly attended the disciplinary hearing on the 19th December and once again, declined to bring representation. At this hearing, the Claimant again admitted to the complaints made against him.

By way of letter dated the 20th December 2017, the Claimant was summarily dismissed. He was informed that his actions on the 27th November 2017 amounted to gross misconduct and that the level of trust between employer and employee had broken down. He was given the opportunity to appeal this decision within 5 working days. The Claimant did not appeal the decision.

Claim under the Terms of Employment (Information) Act

It is denied that the Claimant was not notified in writing of a change to his terms of employment. As recited in the background history above, following a change to corporate make up of the Respondent company, discussions and negotiations were entered into with all employees in relation to proposed changes. We have already exhibited copy meeting notes in relation to this and it is noteworthy, that in the Claimant’s own form to the Workplace Relations Commission, he refers to receipt of a letter from the Respondent on the 17th November 2017, in a language of his understanding, referring to said changes. In fact, it is on foot of this letter that the Claimant duly responded with a letter dated the 20th November 2017.

Section 5 of the Terms of Employment (Information) Act, 1994 states that an employer has an obligation to inform the employee in writing of a change to his terms of employment, within one month of the change occurring. The Respondent duly complied with this requirement and in this regard, seek that this claim duly fail.

CA 19787- 001. Unfair Dismissals Act, 1977.

S6.—(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.

The respondent after a merger sought to amend/tidy up the entire workforce’s terms and condition of employment. There are union and non union employees working for the respondent. The respondent negotiated with both individually. It was agreed that the issue would be put to a ballot and if the majority voted in favour the terms would be implemented.

The respondent met with the union collectively and with the non- union employees individually. They held two ballots, one for the union members and an individual one for the non-union members. The majority of non -union employees voted in favour of the change. The union voted, after slight alternation in relation to working hours, in favour of the change. Following that the change was implemented. It is clear from the complainant’s evidence that he was not in favour of the change despite not having established what the change meant for him. He, and others embarked on what can only be described as a type of unofficial industrial action and refused to work.  

It is clear from the complainant’s evidence that all of his issues were in fact historical and had nothing to do with the proposed changes. In the investigation meeting he raised his historical issues again.

Specifically, He stated that he had concerns about the start and finish times. He was clearly told that the times were not changing. He said that he didn’t want to stay until 7pm. He was asked if he had ever worked until 7pm. He said yes, once, ten years ago. He accepted that in the last ten years he was asked to stay until 7pm. He also took issue that he wasn’t trimming. He was told clearly that he could.

The complainant was dismissed by letter dated the 20th December, 2017. He was afforded the option of appealing the decision. He did not avail of that option. There is generally an obligation on employees to exhaust the internal process before taking the matter to an external body. The complainant failed in this regard.

The respondent submits that it is clear from the facts that the Claimants behaviour was of such a nature that warranted dismissal in the first instance. They rely on the case of Pacelli v Irish Distillers Ltd (UD 2006/417) . It is set out therein that the determination of what constitutes gross misconduct rests with the employer. It was also stated that the test to be applied to the actions of an employer when faced with misconduct was what a reasonable, prudent and wise employer would do in the circumstances.

The respondent also relied on the case of Brewster v Burke, unreported, HC, 1978, wherein it is stated “that a person repudiates the contract of service if he wilfully disobeys the lawful and reasonable orders of his masters. Such a refusal justifies an employer in dismissing the employee summarily.”

I find that the respondent’s procedures were thorough and fair and that the complainant was afforded the opportunity to state his case with the benefit of an interpreter and a representative on several occasions. I can find no breach of his right to fair procedures and natural justice. It would seem, that the complainant used the proposed implementation of new terms and conditions as an opportunity to air historical grievances. He refused to accept the assurances he was given by the respondent and refused to work. When given the option of appealing the decision, he declined to do so. In all of the circumstances I find that the respondent was justified in dismissing the complainant.

The complaint fails.

CA 19787 – 002 Terms of Employment information Act, 1994.

Following on from negotiations with all staff and the passing of a ballot, on the 17th November he received a letter stating that the changes were coming into effect on the 27th November. On the 27th November, he refused to work.

Section 5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , 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—

(a)    1 month after the change takes effect.

I am satisfied that the respondent complied with its obligation pursuant to section 5 of the act when it sent the letter of the 17th November, 2017 to the complainant.

The complaint fails.