FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : FM POULTRY CONTRACTOR LIMITED - AND - HAROLDAS VOLODKA (REPRESENTED BY MR TIERNAN LOWEY, B.L., INSTRUCTED BY DENIS F. MC DWYER & CO. SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Decision No. ADJ-00003959 CA-00005810-001.
BACKGROUND:
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Acts 1977 to 2015. A Labour Court hearing took place on 5 March 2019. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Mr Haroldas Volodka against the Decision of an Adjudication Officer under the Unfair Dismissals Acts 1977 – 2015 (“the Acts”) in his claim of unfair dismissal against his former employer, FM Poultry Contractor Limited. The Adjudication Officer found that the Complainant was not unfairly dismissed.
In this Determination the parties are referred to as they were at first instance. Hence Mr Haroldas Volodka is referred to as “the Complainant” and FM Poultry Contractor Limited is referred to as “the Respondent”.
The Complainant was employed by the Respondent from 1stJune 2008 until his dismissal on 7thJune 2016. He was employed as a Chicken Catcher and was paid €492.28 per week at the time of his dismissal.
Summary of the Respondent’s Position
Prior to the hearing of the appeal, the Respondent advised the Court that it would not be attending the hearing and briefly outlined its position to the Court. The Respondent had a contract with a chicken processing company to provide workers to various farms to catch chickens to be loaded into crates for processing. Following a number of complaints from farmers regarding the Complainant they indicated to the Respondent that they did not want him on their premises for varying reasons. The Respondent submitted that it had no alternative work to give him and accordingly had no alternative but to dismiss the Complainant.
The Respondent notified the Court that as it encountered extremely difficult and critical circumstances since it lobbied on behalf of the Complainant with both the farmers, who were refusing to allow him onto their property, and the chicken processing company with which the Respondent had a contract at the time. It informed the Court that shortly after its lobbying efforts, the Respondent lost their contract with the chicken processing company. This directly led to financial difficulties within the Company with the result that it has ceased trading.
The Respondent indicated that it had no regrets for its actions on the Complainant’s behalf as he was a very good employee and was very much appreciated.
Summary of the Complainant’s Case
Mr Tiernan Lowey B.L., instructed by Denis F McDwyer & Co, Solicitors, on behalf of the Complainant, submitted that the dismissal was unfair and disputed the Respondent’s assertions that it was due to third party pressure thereby constituting ‘other substantial grounds’ justifying the dismissal for the purposes of Section 6(4) of the Acts.
In his submission to the Court, Mr Lowey stated that on or around 20th November 2014 the Complainant claimed to have slipped and fallen in one of the farmers’ premises and sustained injuries. On 24th November 2015, the Complainant lodged a personal injuries claim with the Personal Injuries Assessment Board naming both the Respondent and the owner of the said farm as Defendants.
By letter dated 27th May 2016 the Respondent wrote to the Complainant stating that its client farmers had requested the Complainant’s removal from their farm sites. Ms Lowey said that the letter purported to provide varying reasons for the farmers’ sudden, collective and definitive change in attitude towards the Complainant.
Prior to the events that led to his dismissal, the Complainant had an unblemished disciplinary and performance record with the Respondent.
Counsel for the Complainant maintained that the Respondent’s decision to dismiss him was related to his institution of personal injuries proceedings against both the Respondent and one of the farmers that worked with the Respondent. He referred to Section 6(2)(c) of the Acts which provides that it is unlawful for an employer to dismiss an employee for reasons connected with the institution of civil proceedings by an employee against it.
Mr Lowey stated that while the Complainant acknowledges that, in very specific circumstances, third party pressure has been found to constitute a substantial ground justifying dismissal for the purposes of the legislation, it was submitted that a close analysis of the facts of this case did not support such a defence. He rejected the Respondent’s defence in this regard and submitted that the Respondent obtained evidence which would later be relied upon to support a defence of third party pressure to dismiss.
The Complainant gave sworn evidence to the Court on his efforts to mitigate his losses and secure alternative employment. He secured alternative employment on 18th August 2017. He stated that his losses amounted to €28,552.00.
Conclusions of the Court
The fact of dismissal was not in dispute and therefore there is a statutory presumption that the dismissal was unfair unless there were substantial grounds justifying it. The Respondent caries the onus of showing that having regard to all the circumstances there were substantial grounds justifying the dismissal. Regrettably the Respondent did not attend the hearing for reasons which were outlined to the Court.
The Supreme Court inMagdalena Glegola v The Minister for Social Protection and The Attorney General[2018] IESC 65, O’Donnell J. held that: -
- “The fact that one party does not appear in proceedings should not mean that the opposing party’s contention is accepted by default and without question. There is, in my view, an obligation on any decision-maker to satisfy themselves that an applicant’s case is well founded, particularly where there is an obligation on the part of the State, or another party, not represented in the proceedings to satisfy the award.”
Having considered all matters before the Court, while it seems clear that the Respondent made strenuous attempts to defend the Complainant’s interests, this is counterargued by the uncontroverted facts that the Complainant brought a personal injuries claim against the Respondent and found himself dismissed shortly afterwards. In such circumstances, the Court is satisfied that it is possible to draw an inference that the dismissal was unfair in the absence of the Respondent or its representatives to rebut the Complainant’s contentions and justify its actions.
Determination
For the reasons set out herein the Court is satisfied that the Complainant was unfairly dismissed. Having regard to all the circumstances of this case, the Court considers it just and equitable to award the Complainant compensation in the sum of €10,000.00. Accordingly, the Decision of the Adjudication Officer is overturned and the appeal is upheld.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
LS______________________
11 March 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.