Complainant

Respondent

Anonymised Parties

A Factory Operative

A Meat Factory

Representatives

Cathy McGrady BL instructed by Simon Attride, Solicitor of Farrell McElwee Solicitors

Tom O’Donnell BL instructed by Grainne Aylmer, Solicitor of Aylmer Solicitors

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-00027668-001

11/04/2019

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

CA-00027668-002

11/04/2019

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

CA-00027668-003

11/04/2019

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

CA-00027669-001

11/04/2019

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

CA-00027669-002

11/04/2019

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

CA-00027669-003

11/04/2019

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

CA-00027669-004

11/04/2019

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

CA-00027669-007

11/04/2019

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

CA-00030870-001

12/09/2019

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

CA-00030870-002

12/09/2019

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

CA-00030870-003

12/09/2019

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

CA-00030870-004

12/09/2019

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

CA-00030870-005

12/09/2019

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

CA-00030870-006

12/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030870-007

12/09/2019

The issues in contention concern alleged Unfair Dismissal with supporting complaints regarding Conditions of Employment, Payment of Wages, Working Time and Discrimination under the Employment Equality Act of a Worker by a Meat processing Company.

Act

Complaint/Dispute Reference No.

Opening Position

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

CA-00027668-001

Withdrawn /Not Proceeded with

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

CA-00027668-002

Withdrawn /Not Proceeded with

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

CA-00027668-003

Withdrawn /Not Proceeded with

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

CA-00027669-001

Withdrawn /Not Proceeded with

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

CA-00027669-002

Withdrawn /Not Proceeded with

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

CA-00027669-003

Withdrawn /Not Proceeded with

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

CA-00027669-004

Withdrawn /Not Proceeded with

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

CA-00027669-007

Withdrawn /Not Proceeded with

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

CA-00030870-001

Proceeded with at Hearing of the 16th January 2020

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

CA-00030870-002

Proceeded with at Hearing of the 16th January 2020

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

CA-00030870-003

Proceeded with at Hearing of the 16th January 2020

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

CA-00030870-004

Proceeded with at Hearing of the 16th January 2020

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

CA-00030870-005

Proceeded with at Hearing of the 16th January 2020

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

CA-00030870-006

Proceeded with at Hearing of the 16th January 2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030870-007

Proceeded with at Hearing of the 16th January 2020

Act

Complaint/Dispute Reference No.

Opening Position

4:1                   Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030870-001

The Respondent Employer failed to give the Complainant a Statement of Terms and Conditions of Employment that complied with the terms of the Act. The Contracts offered were Fixed Term contracts while in fact the Complainant was a Permanent Employee.

4:2                 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030870-002

Withdrawn at Hearing. Not proceeded with.

4:3                 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00030870-003

The Respondent Employer unilaterally reduced the Hours of Work of the Complainant thereby depriving him of substantial weekly wages.

4:4                 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00030870-004

Notice Pay was not paid to the Complainant – an illegal deduction of wages as identified in the Act.

4:5                     Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030870-005

The Complainant was not provided with a clear indication / statement, within the required 24-hour notice period, of Work Starting & Finishing Times

4:6             Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00030870-006

The Dismissal of the Complainant was both substantively and procedurally unfair.

The Respondent refused to properly engage with the Complainant regarding his return to work following his injury despite the effort of the Complainant to do so. The dogged refusal of the Respondent to address the work finishing time issue was completely unreasonable.

The Procedures followed were deeply flawed in terms of overlapping Managers involved. The Investigation meetings were in effect Disciplinary Meetings and the final Appeal Process was simply a Box Ticking exercise. The correspondence used was equally constructed to avoid the Unfair Dismissal Act.

In summary the Complainant was denied Natural Justice and Fair Procedures. The behaviour of the Respondent throughout was Unreasonable. Section 6(7) of the UD 1977 Act refers to the requirement of the Adjudication officer to have regard to the “Reasonableness or otherwise” of the Employer.

Considerable case law was cited by the Complainant Legal Advisor in support of the Employee position.

4:7                     Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030870-007

The Complainant was Discriminated against on the Grounds of his Disability and in his Conditions of Employment.

He was not provided with Reasonable Accommodation on his resumption of work following his injury. He was still expected to work/ be available up to a 12 hours day despite recovering from his leg injury. His hours of Work were unilaterally and Discriminatorily reduced, without any justification, to two days per week from the Permanent full-time hours he had enjoyed prior to his injury.

Act

Complaint/Dispute Reference No.

Opening Position

5:1                     Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030870-001

The Respondent acknowledged that a Statement of T&Cs was not furnished within two months of the Complainant’s initial employment in November 2014. However, a claim on this basis is now clearly out of time not being lodged until April 2019.

A Contract of Employment was provided on the 19th June 2018 which the Complainant refused to sign.

Any WRC Complaint here is now outside of the initial 6-month limit and is also Statute Barred. None the less a proper Contract and Employee Hand Book were issued. Legal precedent is clear that a refusal by an Employee to sign a Contact of Employment does not invalidate its provisions.

5:2                  Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030870-002

Withdrawn at Hearing. Not proceeded with.

5:3                   Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00030870-003

The Respondent did not accept that a proper claim had been made under the terms of the Payment of Wages Act, 1991.

The claim that the alleged Reduction in Hours from a full time to a 2-day week constituted a Deduction as defined under the PoW Act,1991 was vigorously contested.

5:4                     Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00030870-004

The Complainant was Dismissed for Misconduct. No Notice pay was warranted.

5:5                Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030870-005

The Complainant’s Hours of Work were clearly specified in the Contract of Employment and by accepted Custom and Practice in the Meat processing industry. Employees were expected to remain at work to finish out a work process that involved the slaughter of livestock and the processing of fresh carcases. This could vary on a daily basis and was clearly part and parcel of the work role. Definitive Work End times could not be guaranteed to an exact hour.

5:6               Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00030870-006

The Dismissal of the Complainant while most regrettable only came about after extensive Investigation and Employment procedures. The actions of the Complainant in repeatedly leaving his shift early, despite many warnings, made an ending of Employment inevitable.

A full Appeal Process by a reputable Independent Consultant took place which upheld the Respondent position.

Detailed evidence was given of numerous meetings and interactions between the parties together with supporting correspondence.

Good detailed procedures were followed and the claim that Natural Justice was not observed did not stand up to any proper scrutiny.

Considerable case law was cited by the Respondent Legal Advisor in support of the Employer position.

5:7               Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030870-007

The Employment Equality claim that the Complainant was denied Reasonable Accommodation for a disability has no foundation. The Complainant returned to work, in a demanding physical job, following an extended period of sick leave of approximately five months. It was perfectly reasonable of the Employer to require the Complainant to work, initially, reduced hours to evaluate his physical performance and to ensure his Health and Safety & that of his colleagues.

The Reduction of Hours involved, from his former Hours, could not be deemed to be in any way a Discriminatory Action as defined in the Employment Equality Act, 1998

6:1      Adjudicator Approach.

There are effectively six Complaints in this Adjudication. The Hearing lasted a full day and Oral evidence was supported by extensive Written material.

The key Complaint is the Unfair Dismissal Complaint CA-00030870-006 – 4.6 and 5.6 above.

I will deal with this complaint first followed by the Equality Act complaint CA-00030870-007 with the other complaints following as listed.

6:2       Unfair Dismissal Complaint CA-00030870-006

6:2:1       The Relevant Law.

The relevant Law is the Unfair Dismissals Act ,1997 supported by the provisions of S.I. 146 of 2000 -Statutory code of Practice on Grievance and Disciplinary Procedures. There is also a most extensive body of Legal precedents. The overriding Legal Principles are those of Natural Justice which have to be seen to be followed at all times.

Section 1 of the UD Act, 1977 under Definitions defines Dismissal as

“ dismissal”, in relation to an employee, means—

( a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

Section 6 of the UD Act,1977 provides

Unfair dismissal.

6

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.

Legal precedents as set out in Redmond on Dismissal Law, Bloomsbury, 2017 and Meenan, Employment Law, Round Hall, 2015 make the following points.

In a Dismissal situation the first point that must be considered is whether or not a Dismissal actually took palce and then, if it was at the instigation of the Employer or if the Employee resigned – a Constructive Dismissal.

In all procedures that follow the Employee has to be given the full benefits of Natural Justice – he or she has to have a full impartial investigation, to be made aware of all charges or complaints against him, have a full opportunity to answer these charges, to have a decision made that is not tainted by other non-related issues and that is “reasonable”. The maker of the Dismissal decision has to be as independent as possible and not an actor or participant in the scenario leading to the Dismissal. An Appeal to an Independent Body has then to be offered. The Employee is expected to participate fully in all Employment Procedures involved unless there are particular and good reasons for not doing so.

6:2:2       Natural Justice

In an Unfair Dismissal situation as stated above, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures has codified these Natural Justice principles into a set of guidelines.

6:2:3      The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

         “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978.

The Tribunal applies the test of “reasonableness” to

1.    the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,

2.    whether the procedures adopted were fair and reasonable and

3.    the reasonableness of the conclusion arrived at by the Respondent.

However, all case rest on their own evidence and factual matrix and I will now examine these.

All cases rest on their own facts and particular local circumstances and I will now look at these.

6:2:4:       The evidence presented.

Accepting the principle that the role of the Adjudicator is not to re-run a case from the start, I will look at the evidence to establish three issues

A.      Was Natural Justice observed?

B.      What contribution did the Complainant make to the overall situation.?

C.       Was the Dismissal a Reasonable Employer response?

A:     Was Natural Justice observed?

The written and oral evidence of the Parties pointed to a series of 5 meetings running from March 13th, 2019 to the 15th April 2019. The meetings were supported by Correspondence / E mails.

The issue of Representation was advised and offered to the Complainant throughout.

The key factual issue in contention was the ongoing refusal of the Complainant to finish out his work shift and his going home early at a time of his own choosing -generally after 8 hours had elapsed.

The Complainant did not deny he was doing this despite repeated warnings.

From a Natural Justice point of view my concerns were the perceived Independence of the Decision Makers. It appeared that Managers, Xa, who conducted most of the meetings accompanied by Manger Xb were not sufficiently Independent of Senior Manager Xc who appeared to join the meetings at the end and issue the decisions without the benefit of attend the meetings and hearing the Complainant’s arguments. The meeting of the 15th April, the Dismissal meeting, being a case in point. It was also unclear as to how the Letter of Contestation from the Complainant of the 8th April was evaluated. There was also considerable lack of clarity as to what was an Investigation meeting and what was a Disciplinary meeting.

The key factor however was the opportunity afforded to the Complainant by the Independent Appeal process. The Consultant, Mr. Bill Canning, gave direct Oral evidence to the Hearing. His report was submitted in evidence. Mr Canning is a HR Consultant of considerable standing and reputation.

From Mr. Canning’s Oral evidence, which I found to be of high probative value, and his Report I had to come to the view that if any omissions or weaknesses in Natural Justice had occurred prior to the Appeal process his Finding and the process he employed clearly corrected these.

Legal / Labour Court precedent indicates that a certain lack of precision in procedures can be allowed, having regard to all the circumstanced involved in any case. I came to the view that Natural Justice was, in an overall context, observed to a sufficient degree.

In addition, the Respondent employer had a full set of Employment Procedures set out in a comprehensive Employment Handbook. The Complainant denied ever seeing this or certainly ever signing it, but I did not really see the factual reality of this assertion.

B:       What contribution did the Complainant make to the overall situation.?

The Complainant gave oral evidence to the Hearing. From the start it was clear that he had a number of serious Grievances with the Respondent, going back to his first recruitment. His initial rate of pay and his perceived lower rate when he was appointed a Permanent staff member was a bone of long-standing contention. He had a strongly held belief that as he had not signed the Contracts of Employment in June 2018 or February 2019 he was not, in any way, obliged to stay to finish his shift especially if went over 8 hours duration. This was exacerbated by his perceived grievances regarding the two-day week he was rostered for on his return to work in February 2019.

Shortly afterwards he began a pattern of leaving work early which was clearly in breach of Respondent wishes and the accepted custom and practice of the Workplace. A meeting took place with Manger Mr Xb on the 13th March followed by a letter requesting “a fresh start”. The early leaving continued regardless despite a Formal Verbal Warning on the 25th March. The Complainant left early on the 27th March and the 2nd April despite getting a Formal Written Warning on the 1st April. A further meeting took place on the 8th April and a Final Written Warning was issued. The Complainant left early again on the 10th April. Leaving aside any employment law considerations this was, to a reasonable observer, simply Kamikaze like self-destructive behaviour to his job prospects.

It was alleged by the Respondent that the Complainant had stated following the verbal warning on the 25th March that “he must do what he had to do, and the company must do what they had to do.”.

From the evidence and Oral questioning of the Complainant both by the Adjudicator and respective Legal Representatives it was very clear that the Complainant had serious issues with the Respondent. The option of a Formal Grievance claim did not seem to have ever been considered.

The unusual Employment behaviour was discussed at length in the Appeal report and the final comment of the Appeal Chairperson is worth repeating

“As a final note, my discussions with the Department Supervisor led me to believe that ongoing and long-lasting ill felling led to what ultimately was a complete breakdown between both parties and the subsequent almost deliberate refusal to carry out duties by the appellant in order to end the employment.”

Bill Canning, Sentric Business Solutions 07/05/2019.

In his Oral evidence the Complainant did not give the impression that his attitudes toward the Respondent had changed in any way.

From an employment Law perspective there is the long established almost Historical rule that an employee, a Servant, is expected to carry out the reasonable lawful instructions of a Master or Employer. The Respondent Legal Advisor cited numerous Labour Court and former EAT case law in support of this point.

However, clearly in this case, the Complainant had decided not to do so, albeit based on his belief that as he had not signed the Employment Contract or Handbook he was in some way absolved. He also had a view that his fate, his dismissal, was almost predestined and it did not really matter what he did procedurally.

The linked Employment Equality complaint regarding the Complainants’ return to work and an alleged failure to make Reasonable Accommodation has a bearing here. If the Complainant justifiably felt that his Employer had effectively abandoned all fair procedures regarding his return to work the attitude of predesignated Dismissal might have some merit. While not strictly comparable some of the arguments in the Liz Allen v Independent Newspapers [2002] ELR 84 case and the effects of a firm and justified lack of belief in the employer acting fairly have some merit. However, in this case the Complainant never lodged any formal Grievances or allowed Employment Procedures to take effect. To a reasonable observer it is hard to see how the employer can be condemned for a lack of fairness in procedures if the issue is never put to the test in a Grievance case.

In final summary the Respondent was far from a carte blanche in his initial procedures, but the deficiencies were, in my view rectified by the Independent Appeal. The behaviour of the Complainant was most unusual and did not demonstrate an employee overly concerned about maintaining his employment. Put in plain English the Complainant contributed in a major way to his own Dismissal.

The next question is, as stated above, the Reasonableness of the Dismissal decision.

C:       Was the Dismissal a Reasonable Employer response?

Good guidance in this question is from the Hennessy v Read and Write Shop Ltd. UD192/1978. Case. Emphasis was placed on having a good procedural process and natural justice having been seemed to be observed. In addition, thequestion of the consideration of alternative penalties short of Dismissal has to be looked at. The attitude of the Parties also has a bearing.

In this case the Complainant was offered by Manager Xc a “fresh start” on the 13th March but the negative issues between the parties only seemed to escalate. As pointed out by the Appeal Chairperson the Complainant seemed determined to end his employment by escalating the non-attendance issue despite repeated warnings.

Walking off the line early on a Slaughtering / Carcass preparation line has serious risks for all concerned including his immediate colleagues.

It is only reasonable to conclude that the decision of the Respondent to dismiss was in the Band of reasonableness for an Employer in the Meat & Animal Slaughter business.

6:2:5       Final Conclusions / Unfair Dismissal complaint.

The overall evidence and in particular the Oral evidence pointed to an employee with a serious and almost irreparable breach of relationship with his employer.

In his actions by ignoring all Warnings he effectively orchestrated his own Dismissal.

As pointed out by the Appeal Chairperson the Respondent had shortcomings in their approach but the almost dogged determination of the Complainant to get the employment ended can only lead to the conclusion that on overall balance this was not an unfair Dismissal.

The Unfair Dismissal claim is not well founded. The Dismissal was not Unfair.

6:3     Equality Act complaint CA-00030870-007

6:3:1      The relevant Law and the Burden of Proof

The relevant Law is the Employment Equality Act, 1998

This Complaint relies on Section 2 (definition of Disability) and Section 6 (definition of Discrimination) of the Act as the basis of his claim.

Section 85A of the Employment Equality Acts imports the burden of proof requirement to be established by both the Complainant and the Respondent. The section shifts the burden of proof to the Respondent where facts are established by a Complainant “from which it may be presumed that there has been discrimination in relation to him or her”.

In plain English this requires the Complainant to establish a reasonable inference of Discrimination and it then moves to the Respondent Employer to rebut or prove that Discrimination did not take palce. Major Precedent cases are the decision of the Labour Court in Southern Health Board v Mitchell, REF and Cork City Council v McCarthy.

The first requirement is however to establish if a qualifying Disability existed. The absence of the Complainant was due to a serious leg/ankle injury in September 2018. Legal precedent accepts that such an injury, albeit one that can in time be recovered from, qualifies as a Disability for the Employment Equality Act, 1998.

However, all cases rest on their own facts and evidence and let us now look at these.

6:3:2       Consideration of the Evidence.

In essence the case advanced is that the Respondent employer acted in a discriminatory fashion by reducing the Complainant’s working week to two days on his return to work in February 2019. He had been absent on long term sick leave since the previous September 2018.

Good Legal precedent indicates that where a Disability is in question extensive Medical inquiries are required of an Employer and that the Employee is afforded adequate opportunity to comment on the Medical reports and offer his/her opinion for consideration by the Employer. The landmark case is Humphries v Westwood Fitness Club [2004] ELR2

In the case in hand the Complainant was certified fit by his own GP on the 29th January 2019. Few details are provided on the GP cert. The Respondent wrote to the Complainant on the 31st January indicting that they could offer him two days’ work a week subject to the Company Doctor passing him as fit. The Compony Doctor did this soon after. Again, the Company Fitness Certificate is without any details other than a Fit to Work note.

In Oral evidence from the Respondent it was explained that the Employer was concerned that the Complainant, who had suffered a significant leg injury, might not be able for the heavy physical work involved on the Slaughter line. They had decided to bring him back on a Two-Day basis to see how things would work out. It was clear that this was effectively a Take it or Leave it offer and the views of the Complainant were not taken into proper account. The reduction in earnings involved was considerable and the Complainant was seriously aggrieved about the situation.

In an Employment Equality context good practice would have been for the views of the Complainant to have been, at least, sought and options discussed – (a Reasonable Accommodation - more days /patterns of work, length of shift etc for example) regarding his return to work. It appeared that nothing this nature happened.

Accordingly, I have to come to the conclusion that the Complainant was Discriminated against on the Reasonable Accommodation Grounds under the Employment Equality Act,1998.

6:3:3       Redress under the Employment Equality Act,1998

Section 82 of the Act refers. I, having considered all the evidence both Oral and Written award the sum of €5,000 as Compensation for Breach of a Statutory Right. This is not in lieu of any Renumeration.

Taxation to be considered in conjunction with the Revenue Commissioners.

6:4:       CA -00030870-001: Terms of Employment (Information) Act, 1994 Complaint.

The Complainant was not provided with a Statement of Terms of Employment until June 2018 -in excess of two years after his first employment. This Respondent did not deny this but maintained that this complaint was now out of time as per Section 41(6) and (8) of the Workplace Relations Act, 2015. In addition, the contract presented on the 19th June 2018, while never signed, was not the subject of any WRC reference until at the earliest April 2019 -this being clearly outside the initial six-month referral date. An application to the Adjudication Officer to allow the claim in the second month period would necessarily be required. In the discussions at the first Hearing in September 2019 and later at the January Hearing in 2019 it was agreed that no disadvantage would apply from consolidating the claims. Accordingly, I am prepared to allow the claim to proceed.

On full consideration of the Evidence, both Written and Oral, I am satisfied that a proper Contract was issued on the 19th June 2018.

The non-issuing of a Contract or Statement in the earlier period was at this stage a historical omission and did not, in my view, constitute a major detriment to the Complainant.

The non-signing of the June 2018 contract did not invalidate it. The case of a Teacher -v-School (Adj-0019917) clarified this point. However, it is worth noting the degree of Respondent confusion in what exactly was a Fixed Term Contract as opposed to a Permanent Contract.

All things considered and in particular the non-issuing of a Statement in the early period of employment being technically out of time I decided that while an Award of any financial significance in regard to this Complaint is not well founded certain limited redress is warranted. I award the sum of €100 in Compensation.

6:5       Complaint CA-00030870-003: Payment of Wages Act, 1991

The essence of this complaint was that the reduction in the Complainant’s hours to a two-day week from a previous four-day week constituted an illegal deduction as per Section 5 of the Payment of Wages Act,1991.

The Complainant was issued with a New Contract of Employment on his return to work – Contract of the 11th February 2019. He refused to sign this contract but attended work none the less. Whether or not this February 2019 Contract superseded Legally the June 2018 Contract is a matter for a different Contract Law Legal forum.

As regards to Payment of Wages Act complaint CA-00030870-004, a valid Contract was in place for a two-day week. A claim for the difference with the Terms of the June 2018 contract cannot arise as this reduction in wages it is not a reckonable deduction as provided for in the Act. The Complainant was most unhappy with the changes and certainly never agreed. However, the February 2019 Contract was in place. Accordingly, the Complaint CA-00030870-004 is not Well Founded and has to be set aside.

6:6       Complaint CA-00030870-004: Payment of Wages Act, 1991

The Complainant is seeking Notice Pay from the Respondent on the basis that he was not Dismissed for Gross Misconduct but for a lesser offence.

The Termination Clause - Clause 9 of the Contract – provides for

“Your employment may be terminated without notice for gross misconduct or failure to carry out such duties that are deemed dismissible by the Company.”

The issues that lead to the Dismissal – the continued early walking off the production line – would appear to fit the second section of the sentence above.

Accordingly, the non-payment of notice in these circumstances is deemed provided for in the Employment contract.

Complaint CA-00030870-004is therefore considered to be Not Well founded and is dismissed.

6:7     Complaint CA 00030870-005: Organisation of Working Time Act, 1997

The essence of this complaint was that the Complainant was never notified, given at least 24 hours prior notice as provided for in Section 17 the Act, of his expected work finish time.

Evidence presented pointed to weekly rosters being published of days to be worked. The question of the shift end time, which was the main issue of complaint, was deemed to be flexible but with a finish no later than 8:00 pm. The Contract of Employment stated that

“Working as part of a team, you will be required to be flexible in your working schedule and actual hours worked”.

The work involved was as part of a Team on an animal slaughter production line. Exact finish times to the hour, it would be accepted, are impossible to predict. The Contract did have a final stop gap Finish time of 8:00 pm.

All things considered I did not think that a Breach of Section 17 of the Act had taken place.

Accordingly, the Complaint is deemed to be Not Well Founded.

Act

Complaint/Dispute Reference No.

Summary Decision

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

CA-00030870-001

Complaint deemed to be Well founded. An Award of €100 is made in favour of the Complainant.

5:2                   Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030870-002

Complaint withdrawn

5:3                   Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00030870-003

Complaint deemed to be Not Well Founded.

5:4                     Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00030870-004

Complaint deemed to be Not Well Founded.

5:5               Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030870-005

Complaint deemed to be Not Well Founded.

5:6               Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00030870-006

Complaint deemed to be Not Well Founded.

Dismissal was not Unfair.

5:7               Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030870-007

Complaint deemed to be Well Founded.

Discrimination in relation to the Return to Work was found.

An Award of Compensation of €5,000 for Breach of a Statutory right is made.