Complainant

Respondent

Anonymised Parties

A Boner

A meat processing company

Representatives

Richard Grogan & Associates

Mary Paula Guinness BL instructed by Caulstown Solicitors

Act

Complaint 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-00025468-001

30/01/2019

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

CA-00025468-002

30/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00025468-003

30/01/2019

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

CA-00025468-004

30/01/2019

The complainant worked for the respondent from the 14th February 2006 until the 10th December 2018. He worked as a boner in a lamb processing facility. His rate of pay was €550 per week. He asserts that his dismissal was unfair, while the respondent states that it was for misconduct, an unauthorised absence while in receipt of a live final written warning. The complainant asserts that there have been contraventions of the Terms of Employment (Information) Act and the Organisation of Working Time Act.

In submissions, the respondent outlined that the complainant was supplied with a contract in English and Polish at the start of his employment and signed a contract on the 11th April 2006. The respondent outlined that the complainant received warnings in 2010, 2011, 2013 and a final written warning on the 30th June 2013.

The complainant was subject to a disciplinary process in 2017 regarding incidents on the 30th March and 12th April 2017. These incidents related to behaviour causing a risk to health and safety; they culminated in a final written warning and two days’ unpaid suspension effective from the 24th July 2017. The warning was to be live on his record for 24 months.

The respondent outlined that the disciplinary policy allows for longer periods for a warning to subsist in cases of health and safety. It submitted that a period of 24 months was permissible where there was suspension without pay.

The respondent outlined that on the 9th November 2018 the complainant and others left the workplace without authorisation and did not return to duties after a rest break. This stemmed from a dispute about pay arising from a new system installed to calculate bonus payments and piece rates. This had been negotiated via an employee forum in November but not all operatives agreed. There had been six weeks of discussions between a manager and staff regarding the new system. The respondent outlined that there were no changes to the terms and conditions of employment.

The complainant admitted to two allegations: that he had left the site and that he had not returned. The respondent dismissed the respondent on foot of the existing final written warning on his file. The respondent outlined that it invited the complainant to appeal the decision, including writing to him on three occasions. It issued the complainant’s P45 at the request of a staff member, acting on the complainant’s behalf.

The respondent denied that the complainant was unfairly dismissed and submitted that all 20 staff members who left without authorisation were subjected to a disciplinary process and disciplined. They each received a final written warning.

In reply to the complainant, the respondent submitted that no change had been made to pay arrangements at the time of the action. The complainant had accepted that he had refused to work. The respondent stated that the notes referred to the allegation of the unauthorised absence and the complainants accepted the allegations of being absent and not returning to work.

The respondent that the breaches of the Terms of Employment (Information) Act were technical breaches and the complainant had not incurred any detriment.

In respect of the Organisation of Working Time complainant, the respondent outlined that the complainant took breaks on the Saturdays he worked. It could not explain why no breaks were marked on all Saturdays, but its case was that the complainant took breaks. The respondent outlined that the Act permits a cognisable period of six months for such claims. It submitted that why would the Act oblige an employer to keep records for three years if there was an obligation to account for rest breaks beyond three years and as long ago as six years.

The complainant submitted that he was unfairly dismissed by the respondent and that there were contraventions of the Organisation of Working Time Act and the Terms of Employment (Information) Act.

In submissions, the complainant submitted that it was a matter of European Union law that he should be afforded legal aid. He outlined that he did not receive the statutorily-required 30-minute break. The complainant relied on the decision of the Labour Court in Antanas v Nolan Transport DWT1117. He relied on section 25 of the Organisation of Working Time Act and the passing of the burden of proof to the employer where no records were kept. The complainant relied on the Opinion of the Advocate General in CCOO v Deutsche Bank (C-55/18), in particular paragraphs 57 and 58 as well as Article 31(2) of the Charter and the Directive.

The complainant outlined that a statement provided per section 3 of the Terms of Employment (Information) Act must set out the terms and duration of breaks, in compliance with sections 11, 12 and 13 of the Organisation of Working Time Act. The complainant set out that he did not get a break on a Saturday and relied on Goode Concrete v Munroe DWT 051 in respect of redress. The complainant relied on Anglo Irish Beef Processors Rathkeale v SIPTU DWT0019 regarding the obligation to provide notice of overtime per section 17 of the Organisation of Working Time Act.

The complainant submitted that national law must, at the first instance, objectively and reliably document working hours to ensure compliance with European Union law. The complainant further referred to the Max-Planck judgment (C-684/16) regarding the need to disapply national law to ensure that the worker is not deprived of acquired rights.

The complainant submitted that while there was reference to an employee forum, no documentation was produced regarding the forum. There was no document showing that staff were bound by decisions of the employee forum. He submitted that there must be some documentation regarding any collective agreement.

In relation to the meeting on the 7th November, there is a reference to a staff member not of Polish origin communicating with the Polish workers. There was an absence of Polish representatives involved in negotiating with the respondent.

The complainant outlined that the policies and procedures date from 2014 while the complainant started in 2006. His contract provided that staff must be notified in writing of the introduction of new procedures.

The complainant submitted that he had no documentation in relation to any disciplinary sanction applied to other individuals. He relied on Bank of Ireland v Reilly [2015] IEHC 241. He submitted that there is an issue with equivalence as there is a huge difference between a final written warning and dismissal. As in Reilly, the complainant was issued with a much more severe penalty, compared to the others. He submitted that none of the others were dismissed and there was no evidence that the complainant was the ringleader. He outlined that the penalty he received was substantially in excess of what everyone else got. He submitted that if an action taken as part of a group warranted dismissal, they all warrant dismissal, or none warrant dismissal. The penalty of dismissal was disproportionate when no one else was dismissed.

The complainant outlined that this was a trade dispute and the respondent cannot say to employees that they cannot withdraw their labour. He said that there is no union on site and no forum with collective bargaining. In reply to the respondent, the complainant did not accept he had been absent from work without authorisation.

In respect of mitigation, the complainant outlined that he started a new role on the 4th June 2019 on €400 per week. He had earned €550 per week with the respondent. He had temporary employment in May 2019 and another role in January 2019. The complainant submits pay slips of alternative employment, the first date the 15th February 2019.

In respect of the Terms of Employment (Information) Act, the complainant outlined that statement of terms did not include the information required by SI 49/1998, i.e. regarding rest breaks. An employee must be advised of the daily rest break of 11 hours and breaks during the working day. A reference to a “lunch” break is not sufficiently clear. He submitted that the incorrect year for annual leave was stated in the document.

The complainant submitted that the equality clauses per sections 21 and 30 of the Employment Equality Act must be implied into the Written Terms directive and must be included in the statement. Referring to the CJEU decision in Lang v Shullman C-350/99, there is a requirement to notify of the complainant of overtime.

In respect of the Organisation of Working Time claim, this related to Saturday work. He referred to the time sheets which showed that the complainant was not permitted breaks. The time sheet for the 17th November showed that the complainant started at 6.53am and finished at 1.03pm, a period of 6 hours and 3 minutes with no break. On the 27th October, the complainant worked from 6.49 am to 12.55 pm with no break. On the 20th October, the complainant worked between 6.55 am to 1.01 pm with no break. The complainant submitted that the records showed that he did not get breaks on Saturdays, including on the 13th October.

The complainant submitted that he would be able to recover for six years of a contractual breach in respect of breaks in the courts. Applying the principles of effectiveness and equivalence, the complainant submitted that the scope of the redress awarded must be able to go back the full six years and beyond the cognisable period of six months provided in the Act. The complainant referred to the judgment of the Northern Ireland Court of Appeal in Agnew v PSNI [2019] NICA 32.

The complainant accepted that he was paid notice pay as required by the Minimum Notice and Terms of Employment Act.

CA-00025648-001

This is a complaint pursuant to the Terms of Employment (Information) Act. The complainant asserts that the statement provided by the respondent does not comply with section 3 of the Act. This includes not setting out the necessary information related to sections 11, 12 and 13 of the Organisation of Working Time Act.

According to the documentation, the respondent provides statements to employees in five languages: English, Polish, Latvian, Slovakian and Russian. The complainant was supplied with a statement of the terms of employment in both English and Polish (in fact, the respondent issued all correspondence to the complainant in both languages).

As constituted at the time of this employment, section 3 of the Act requires the employer to provide to the employee a statement containing the following information:

(a) the full names of the employer and the employee, (b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 2014), (c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places, (d) the title of the job or nature of the work for which the employee is employed, (e) the date of commencement of the employee’s contract of employment, (f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires, (fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, (g) the rate or method of calculation of the employee's remuneration, (ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section, (h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, (i) any terms or conditions relating to hours of work (including overtime), (j) any terms or conditions relating to paid leave (other than paid sick leave), (k) any terms or conditions relating to— (i) incapacity for work due to sickness or injury and paid sick leave, and (ii) pensions and pension schemes, (l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, (m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.’

Section 3(6) permits additional requirements to be specified; one such statutory instrument has been promulgated. The Terms of Employment (Additional Information) Order, 1998 (SI 49/1998) provides at Regulation 3:

‘3. (1) In relation to an employee who enters into a contract of employment after the commencement of this Order, the employee's employer shall, within two months after the employee's commencement of employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.’

As set out above, the statement provided regarding working time shall include ‘a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act.’

As now constituted, section 7 of the Act provides that an employee may seek redress for a contravention of sections 3, 4, 5, 6 or 6C of the Act. Applying Zajaczkowski v Hewlett Packard CDS Ireland TED 192, I find that a contravention of SI 49/1998 falls within the ambit of a contravention of section 3, as the Order is promulgated per the section. I, therefore, have jurisdiction pursuant to section 7 of the Act.

In assessing whether a contravention occurred, and the degree of any contravention, I note that the statement provided states ‘Each day you will have one half an hour unpaid lunch break and one 15-minute break.’ The terms and conditions for piece rate workers document states ‘Each day Operatives will have on half hour lunch break and one fifteen-minute break. These breaks will be unpaid for Grade 1 and 2 Operatives. Grade 3 and 4 Operatives: Break and rest period entitlements are set out under the employer’s terms and conditions of employment.’

It is certainly the case that the statements set out the duration of breaks, although not the times. I note, however, from the time sheets, that breaks were taken at regular times. The time sheets show that the complainant started work at about 6.50am with the first break taken at about 9.30am. After resuming work at about 9.50am, the next break was taken at about 12.30pm. The complainant would return to work at about 1pm and finish the working day some time after 5pm. This points to regular working time and regular breaks (apart from Saturdays, dealt with below). This regularity comes to the fore on the 9th November 2018, when the complainant and colleagues take a break together and then leave the workplace, not returning that day. This points to a settled working pattern and regular breaks.

In assessing any contraventions, I note that the provisions regarding the National Minimum Wage Act were not adhered to. I note that the documentation did not actually state break times, even though they were taken about the same time every time. SI 49/1998, however, requires actual break times to be stated; this did not occur in this case. Taken these contraventions together, I award redress of €300.

CA-00025648-002

This is a complaint pursuant to the Unfair Dismissals Act. The respondent dismissed the complainant by letter of the 10th December 2018. The respondent cited the grounds of a breach of company policy in leaving the workplace without authorisation and not returning following the end of a morning rest break. The complainant was dismissed because there was a live final written warning on his file.

The dismissal stemmed from a walk-out by 20 employees, including the complainant, on the 9th November 2018. The employees wanted to speak with a named manager regarding proposed changes to the piece rate system, which they said was unfair. As noted in the time and attendance sheets, the complainant and others did not return to work that day. The respondent refers to having to pull in staff from other sites to fulfil contracts.

It is clear that all 20 employees were disciplined. I accept that the other employees received final written warnings. The complainant was dismissed because, like everyone else, he was to be issued with a final written warning, but, unlike the others, he was already on a final written warning.

Reviewing the documentation, I note that there are four grades in the workplace (highly skilled knifemen, fully skilled boners, operatives and new starters). Employees acquire increments, piece rates and bonuses according to their grade. I find as fact that the complainant received the employee handbook. This provides a detailed and flexible set of sanctions. As submitted by the respondent, it provides for longer periods of warning where misconduct has serious health and safety implications. The disciplinary policy states that the list of sanctions is not exhaustive and allows for demotion and suspension without pay, as was imposed in the complainant in 2017. The 2017 disciplinary sanction arose from two incidents in March and April 2017, when the complainant was held to have behaved inappropriately, verbally abusive and threatening.

As set out in Frizelle v New Ross Credit Union [1997] IEHC 137 ‘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.’

In assessing the proportionality of the decision to dismiss the complainant, I note that the respondent responded to the walk-out by issuing final written warnings to all employees involved. As noted above, this had a particular deleterious effect on the complainant as he was already on a final written warning; he was dismissed.

The application of a disciplinary policy, however, is not a mathematical equation. It should not follow automatically that an employee on a final written warning be automatically dismissed on foot of a further warning, in particular where the circumstances around the disciplinary sanctions differ completely.

The complainant’s 2017 warning arose from individual behaviour; the 2018 warning arose from collective action related to an industrial relations issue. In fairness to the respondent, it clarified that the 2018 matter did not relate to the complainant’s behaviour, establishing that an allegation of ‘aggression’ was mistranslated into English and should have stated ‘vocal’. The complainant’s behaviour was not called into question in the 2018 incident.

The 2017 matter related to poor behaviour by the complainant individually; the 2018 matter did not relate to behaviour and was a collective and not an individual issue. I note the breadth and flexibility of the disciplinary policy. Even if it decided to issue a disciplinary sanction to the complainant for the 2018 incident, including a final written warning, it could have imposed a sanction other than dismissal, for example demotion or suspension without pay. This would have been an additional sanction to an employee already on a final written warning but falling short of dismissal. This would have been proportional, maintaining greater equivalence with the treatment of all employees who walked out, while recognising that the complainant was already on a final written warning.

It follows that the respondent has not dislodged the presumption that the dismissal was unfair arising from the disproportionate sanction of dismissal. In assessing redress, I note that the respondent paid the complainant €550 per week. He was paid statutory notice. He commenced alternative, short term employment in February and then May 2019, but secured another role in June 2019, where he earned €400. The complainant is entitled to recover for the shortfall in remuneration but taking into account that he will likely progress in his current role, just as he did while working for the respondent. I also note that he worked for respondent since 2006 and lost accrued statutory entitlements because of the dismissal. His position is more precarious because he must accrue service for certain forms of employment protection.

Taking these factors into account, I award redress of €6,000

CA-00025648-003

This is a complaint pursuant to the Minimum Notice and Terms of Employment Act. The complainant said that he had received notice pay. It follows that I find that there was no contravention of the Act.

CA-00025648-004

This is a complaint pursuant to the Organisation of Working Time Act in respect of daily rest breaks. There were time and attendance sheets capturing the complainant’s working time and breaks. He was not paid for breaks. The issue arises for work undertaken on a Saturday.

According to the time sheets, the complainant worked six Saturdays and only received breaks on one day (25th August 2018). On the other days, the complainant should have received a 30-minute break.

I appreciate that it was the respondent’s case that the complainant obtained breaks. There are time records and they show that the complainant did not take breaks. Given the importance of records in working time, I must go with what is stated in the records, unless there is strong evidence from other sources to show the contrary.

I appreciate that rest breaks are a fundamental social right of the European Union. Article 31(2) of the Charter provides ‘Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.’ The complainant challenges the temporal limitation imposed by the Workplace Relations Act. As held in Antanas, it is for the complainant ‘to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act.’ In this case, there is only information regarding breaches arising in 2018; there is no information about earlier contraventions. I cannot speculate that there were such preceding contraventions.

It is clear that there was a contravention of the Organisation of Working Time Act when the complainant was not afforded rest breaks during the working day. He was entitled to a 30-minute break on these occasions and none is recorded. In assessing redress, I note that the regulation of working time is a health and safety measure. This is of particular importance in a safety-critical workplace such as this one (as reflected in the employee handbook). Taking these factors into account, I award redress of €1,000.

CA-00025648-001

I decide that the complaint pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay to the complainant redress of €300.

CA-00025648-002

For the reasons set out above, I decide that the complainant was unfairly dismissed by the respondent and that the respondent shall pay to the complainant redress of €6,000 in respect of this contravention.

CA-00025648-003

I decide that there was no contravention of the Minimum Notice and Terms of Employment Act.

CA-00025648-004

I decide that this complaint pursuant to the Organisation of Working Time Act is well-founded and the respondent shall pay to the complainant redress of €1,000.

Terms of Employment (Information) Act / SI 49/1998

Unfair Dismissals Act / proportionality

Organisation of Working Time Act / rest break times