Complainant

Respondent

Anonymised Parties

A butcher

A retail outlet

Representatives

self

self

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-00021607-001

06/09/2018

The Complainant is a butcher who was employed by the Respondent for a period of 3 years ending on 14th August 2018. He was in receipt of a weekly payment of €500 per 40-hour week.

This complaint was received by the WRC on 6th September 2018.

The hearing of the complaint took place over two days i.e. 6th February 2019 and 5th March 2019. Both parties attended on the first day. The Respondent, due to an error on his part, did not attend on the second day.

The Complainant worked with the Respondent for over a 3-year period. He left after approx. a year and a half to follow another career path only to return some months later looking to resume his duties. He was taken back without question.

The Respondent employs around 24 staff working mainly fulltime, some were there when the current owner (the Respondent) arrived in 2005, some were brought with the Respondent and are still with there and of the remainder, most are with the company for over 5 years. Considering the low pay in this sector the Respondent contends that they must be doing something well to retain so many of staff for so long. All managers have been promoted from within (of which there are 6 plus the Respondent and his wife who is the assistant manager).

When the Complainant informed the Respondent about his step mother’s illness he received nothing but empathy from all the staff in the shop. The Complainant went to the assistant manager on the Saturday morning at around 11.30 looking to take a half day. Saturday's are important as it is the busiest day for the butcher but also the prepack must be packed up to take the business through to Monday morning. Had the Complainant spoken to the assistant manager at 8.30 when he came in and offered to have everything packed up by lunch then she would have tried to facilitate the Complainant taking off for the afternoon.

The Respondent is a small supermarket who in the current environment struggle to compete with the large multiple stores on price, so they have to try very hard to give the best possible service to their customers.

On the Monday following the Complainant’s departure the previous Saturday the Respondent was obviously disappointed that the Complainant had chosen not to return to work but more disappointed the he had chosen to work Friday night in the fast food restaurant when he could have made a visit to the hospital to visit his step mother.

He justified it by telling Irene “I’m going to need this job when I finish up here”

The Respondent contends that he simply asked the Complainant about this and he did a complete u turn saying he did not work Friday night.

It was then alleged that he followed this up with another lie about finishing early every Tuesday.

The Respondent has clearly stated that at no point was the Complainant told he was being sacked. “We had no plan B; the Complainant was it. The Complainant point blank refused to be bound by any rules regarding coming and going to work”.

On Tuesday 14/08/2018 the Complainant arrived to work at 8.30. He proceeded to repack Chicken Fillets with a use by date of the 15/8/2018 and put a further 3 days on them. This was as malicious an act that one could do. Had any complaint been forwarded to the authorities, because the Complainant failed to fill out any traceability charts for Monday or Tuesday we would have most certainly faced a closure order. Had anything more serious happened to one of our customers the consequences to the business and 24 jobs cannot be calculated.

Work place disagreements are not uncommon, this is what this was up until Tuesday 14/08/2018 at approx. 2pm - a work place disagreement. Had the Complainant come in on Tuesday to see me with the intention of resuming work, a conversation would have ensued, and we would have all moved on. (Again, we had no other options other than the Complainant.)

The Complainant’s contract was part- time for one day a week. He had agreed to cover the permanent butcher while he was on sick leave for up to 6 months. The permanent butcher contacted the Complainant on Wednesday to let him know of his intention to return to work early, specifically 27/08/2018. His conversation corroborates the Respondent’s statement regarding the malicious repackaging of products calculated to cause maximum damage. All this because the assistant manager could not facilitate him on the Saturday.

All food products come with either a best before date or a use by date depending on whether they are fresh/raw or processed. A best before date is just that, but can be sold after this date, once the retailer informs the consumer of the expiry date. A use by date is also just that, the product must be consumed by this date. All meat processors provide these on the packaging. Once a box of bulk chicken fillets is delivered (200's in our case), they are decanted into smaller retail packs or loose in the serve over counter. The scales are calibrated to only put 3 days on chicken products for repackaged pre-pack (2pk,5pk &10pks). This is in line with the food safety guidelines. It is illegal to attempt to sell a product with a processor use by date after this date. The Complainant on the 14/08/2018 took a box of such chicken fillets with a processor use by date of 15/08/2018 and decanted into 5/10pk with a use by date of 17/08/2018. This is illegal and dangerous.

On Tuesday 14/08/2018, the Complainant despite leaving work the previous Saturday with a promise to return, failed to return. The Complainant walked out on Monday 13/08/2018 telling us to keep our job. The Complainant says in his own statements that he could not say that this behaviour would not happen again. The Complainant refused to be bound by normal rules and procedures. He arrived to work because these normal rules in his case did not apply. Jason had no interest in a conversation about procedures and rules appropriate to his working environment.

The following is a copy of the complaint as presented to the WRC. It was submitted by the Complainant and summarises his version of events:

On Wednesday the 8th of August, at approximately 8.30pm I found out devastating news that my mother had been diagnosed with terminal cancer and the doctors did not know how long she would live for, or even what type of treatment could be done, if any. On Thursday the 9th of August, I went to work at 8.30am as normal. I approached the boss (xxxxx xxxxxx) to tell her about my mother. I made her aware that my head wasn't in a good place and that I might need some time off. Xxxxx told me that they would try and find somebody to replace me for a week or 2 and that if I needed to leave early any day in the meantime that I just had to tell them.

On Friday the 10th of August at approximately 9pm, I was told that my mother’s diagnosis had changed from ovarian cancer to liver cancer but was still terminal. The doctors said a biopsy needed to be done on the liver, however because my mother was on blood thinners for blood clots there was a chance that she could bleed out and would not survive the procedure.

On Saturday the 11th of August, I went to work at 8.30am as normal. At approximately 11am, I approached the boss (xxxxx xxxxxx) on the till as there was no customers around at the time. I asked her could I leave early to go and visit my mother in hospital. Her response was "no, no chance. Not on a Saturday" I had asked to leave at 1pm. Xxxxx then called me up to the office and gave out to me for approaching her at the till and to never do it again. I apologized for it. Xxxxx told me to take a 2-hour lunch break, but I had to come back to work. I pleaded with her to change her mind, but she didn't. As it would take me 45 minutes to get to Blanchardstown hospital I found it very difficult to accept her terms. I proceeded to work through my lunch break to get all my work done. I left at 2pm and made sure the shelves were full before I left. I was in no fit state to return to work as I was an emotional wreck after my visit. So, I did not return to work.

On Monday the 13th of August, I went to work as normal at 8.30am. I had my full counter out as normal and was just putting the finishing touches on it when I was called to the office approximately 12pm. As I entered the Respondent manager and his assistant manager were waiting for me in the office. The Respondent Manager angrily said to me "close that f****** door". So, I did. He started by saying "On Saturday you took it upon yourself to leave early and not come back, When you were told to take a 2 hour lunch and come back" I said "yes, that's right, because it's 45 minutes to the hospital and I was in no fit state to return as it was my first time to visit". He then proceeded to tell me "you should have visited on Friday night after work" I told him, my dad and grandparents were there on Friday night. My dad told me not to come up Friday night as my mother was heavily sedated due to the devastating news. He tried telling me I was running his shop into the ground. Which was not the case. He told me I had been asking other staff members for help to do my job. This is true to a degree, I had in fact asked for help. He then said on the day I asked for help I then left work early. I explained to him that before I had even accepted the job, I had told both him and the assistant manager that I would need to leave early on Tuesdays, every Tuesday. He failed to remember me ever saying this and accused me of having that conversation with myself in my own head. He then told me to go back to work and "don't let it happen again or there is the f****** door". I told him I will not be quitting the job, that if he wanted me gone, he would have to fire me because if the circumstances came up again I would need to leave early. That I could not be asked to prioritize a job over my dying mother. This argument went back and forth like these 3 times. On the third time of me saying to him that I will not quit the job, if he wants me gone so badly that he will have to fire me. He responded by swiftly saying "there's the door" as he pointed to the door. I took this as being fired. So, I left. As I drove away I was crying and very upset of the treatment I had received from him in the office.

As if things weren't already bad enough, I couldn't believe the reaction coming from the Respondent manager, he was treating this very serious situation as if I was going off with the lads instead of staying in work. I had to pull my car over on the main N2 road to pull myself together. I rang my doctor to get an appointment. I went to my doctor and explained all about my mother. He gave me a doctor's note for work. In his opinion I should not have been in work at all since I had found out the news, as I was suffering from severe stress and anxiety.

On Monday evening after speaking with my father, we decided that I was going to go up to work on Tuesday morning, first thing, and hand in my doctors note as soon as possible. On Tuesday the 14th of August. I went to work at my normal time of 8.30am, when I walked in I saw that the shelves needed restocking and the counter needed to be replenished. I made a split-second, on-the-spot decision to get stuck in. Although I knew that I had every reason to be off due to severe stress and anxiety, I was more anxious feeling like I was coming into the shop, seeing they needed help and just leaving after giving my doctor note. So, I got stuck in. In my employment with the Respondent I have always supported them 100% and put my all into my role. I would come in on a Sunday if need be, cover the other butchers sick leave with a days’ notice even when it meant trying to organize childcare last minute, I worked 6 days a week when they couldn't find somebody to cover my day off.

I then dropped down to working 2 half days instead of a day off to suit them. I didn't mind as I felt they valued my work ethic and commitment. I felt we had developed a close, positive, trusting and respectful working relationship over the past 4 years. Tuesday morning was no different. I saw they needed support and I couldn't let them down. I done my work as normal as the shelves where empty. The manager saw me filling up the shelves at around 11am. He chose to ignore me. When the shelves were full, I was bringing a bin out to the back yard to dispose of it and I walked past the manager. He stopped me and said "What the f*** are you doing here? You quit yesterday". I told him that I never said anything along the lines of quitting. In fact, I clearly said 3 times I would not quit, and he did not tell me I was fired. So, I was in work as normal doing my work. He started to raise his voice telling me " to get the f*** out of his shop". I told him I will not be leaving unless he gives me a written letter stating I am being sacked and the reason why. He refused saying that I had quit. He then walked off telling me " get the f*** out of my shop and I won't be paying you either".

Another half an hour went past. I approached him with my doctors note and went to hand it to him saying " here is a note from my doctor, it will explain why I left early on Saturday and Monday, and basically why I haven't been myself for the past few days". He told me he would not be taking the note off me and again told me "get the f*** out of my shop". I confirmed with him that he is refusing to take my doctors note. He said he will not be touching it and get the f*** out of his shop. This time I said okay. "I'll take this as being sacked". I then left the shop.

On Saturday the 1st of September, I went back to the shop to collect wages I was owed. When I went into the shop and asked a member of staff could they get my wages for me, I was told that the manager was told by the owners not to give me my wages as xxxxx wanted to personally give me the wages and have a chat with me, both owners where on holidays. I would have to come back to get my wages when they return from their holiday which I was told would be Wednesday the 5th of September 2018. On Thursday the 6th of September I went to the shop to collect my wages. Xxxxx came down from the office to greet me. she was polite, however she told me that she wanted to tell me that she had to put in for my holiday pay and my p45, that she wanted to tell me this before she done it. I thought this very strange as this was now 3 weeks since I had been told to leave. She then went back up to the office to get my wages. When she returned she gave me my wages, after receiving my wages I noticed I was not paid correctly. I was only paid for 2 days instead of a full day and 2 half days. My holidays were not included. I was told I would have to go back again next week to collect my holiday pay and my p45. This is now coming up to 4 weeks with me not having any income as without my p45 I am unable to sign on to receive social welfare while I'm seeking new employment.

I note with interest the following passage said by the Respondent:

“Work place disagreements are not uncommon, this is what this was up until Tuesday 14/08/2018 at approx. 2pm - a work place disagreement. Had the Complainant come in on Tuesday to see me with the intention of resuming work, a conversation would have ensued, and we would have all moved on. (Again, we had no other options other than the Complainant.)”

This matter should not have escalated to the stage it did.

I can find fault with the conduct / behaviour displayed by both parties.

The Respondent overall should have addressed the situation in a more proactive way and the Complainant should have made an effort to return to work on the Saturday afternoon.

In finding in favour of the Complaint I believe his complaint is well found however I also find that he contributed 50% to his own dismissal.

I note that there are two factors that must be considered in mitigation of the Complainant’s loss:

1.       He was standing in for the regular butcher who was due to return from sick leave at the end of August.

2.       The Complainant secured other employment. Whilst it was not clearly established when he commenced this employment he did produce a letter from his new employer stating that he had completed his probationary period of employment. This letter is date 9th January 2019, I therefore estimate that he must have commenced employment sometime in September 2018.

I am awarding the Complainant the sum of 4 weeks pay under the Unfair Dismissals Act, 1977. This sum is reduced by 50% due to the Complainant’s contributory actions.

The Respondent will pay compensation to the Complainant of 2 weeks pay i.e. €1,000.

This award should be paid within 42 days of the date of this decision.

As outlined above.

Unfair Dismissal.