Complainant

Respondent

Anonymised Parties

A Butcher

A Meat Business

Representatives

No Appearance by or on behalf of the Complainant

Paul Nyhan , Human Resources Manager and Owner

Act

Complaint Reference No.

Date of Receipt

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

CA-00032162-001

13/11/2019

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

CA-00032163-001

13/11/2019

On the 13th November 2019, the Union on behalf of the complainant, a Butcher submitted two mirror image complaints of unfair dismissal to the WRC, some 20 minutes apart. On 29 November 2019, the Union was notified that these complaints were to be blended into ADJ -25490.

The Respondent subsequently raised jurisdictional issues in rebutting the claim. The case was first set for hearing on 1 April 2020 and was re-listed due to the national pandemic for 15 September 2020.

The Respondent lodged two pre-hearing submissions both were copied to the complainant.

The complainant filed a response to the Respondent submission dated 5 September 2020. There was no appearance by or on behalf of the complainant at hearing.

The Respondent operates a multi locational meat business and employs 60 staff. The complainant was unemployed on a permanent contract on 6 September 2018 and was dismissed with one weeks’ notice on 30 August 2019. He was paid €11.50 per hour for an average of 43.5-hour week.

As a preliminary argument, the Respondent has challenged that the complainant held the requisite service to run a complaint of unfair dismissal and secondly denied that the dismissal was unfair.

The respondent made a written submission dated 18 December 2019 and clarified that the complainant worked in a different shop to what was mentioned on his complaint form. The facts of the reason attributed to the dismissal were disputed.

On 31 August 2019, the Respondent made a supplementary submission “for the hearing on 15 September 2020”.

On this occasion, the respondent again disputed that the complainant had 12 months continuous service as he commenced work on 6 September 2018, was given notice on 30 August 2019 and finished on 5 September 2019. The facts surrounding dismissal were also contested.

The Respondent attended the hearing on 15 September 2020 and both representatives were aggrieved by the nonappearance of the complainant but agreed to wait a period to allow for an appearance.

Mr A, one of the owners of the company gave evidence that the complainant had worked well for the first 3 months of his employment, but his performance declined after this. He spoke to him on 6 to 7 occasions seeking an improvement, but no sustained improvement followed. He was troubled by the tapering off productivity.

Mr A outlined the workings of the business which operated over 7 days.

During August 2019, he was away on leave and his brother and co-owner, Mr B covered for him. On his return, Mr B recounted that the complainant had refused to cut meat past an early part of a Saturday afternoon despite further trading hours. Mr B told Mr A that he had to undertake the task of cutting himself and was stunned at the complainant’s high level of non-co-operation.

This prompted a discussion amongst the three Owners the following week. They discussed the complainants lack of interest and his ability to continue to work throughout the day to the standard expected of a Butcher. In addition, he was viewed as demotivated and unresponsive to business peaks. They made the decision to give the complainant notice of termination on 30 August 2019.

Mr A confirmed that he addressed the complainant on this decision, as he held the authority to dismiss, a power he had not exercised over 10 years.

He told the complainant that things were not working out, he was not working on his own imitative and was inflexible and he was giving him a weeks’ notice of dismissal. The complainant did not challenge this and worked his notice and left. Mr A submitted that the company would have assisted him with a reference, but he did not ask. He understood he found new work shortly afterwards .

The respondent agreed to forward the contract of employment and staff handbook post hearing and these were copied to the complainant.

The respondent confirmed that the period of notice was paid, and the company had not considered any option short of dismissal.

In response to the request submitted by the Union under section 14, the respondent said they were not au fait with dealing with Unions and would happily have addressed the complainant on the reasons for his dismissal if he had requested same.

In response to the Adjudicators questions, the respondent confirmed that they had not maintained records of the conversations with the complainant or surrounding the decision taken to dismiss but were happy to give evidence of these. Dismissal was communicated verbally to the complainant.

The Respondent by concluding that the complainant’s productivity had tapered off considerable. He had slipped back and any of the requests for improvement initiated by Mr A had gone unheeded to the point where the business was damaged by his overt non-co-operation on the day that Mr B was covering Mr as leave. Mr B found it distasteful to terminate the complainant’s employment, but he submitted that he had been left with no choice.

The Union submission received on 13 November 2019 stated that the complainant, a Butcher had worked 45 hrs a week at the respondent Butchers business from 6 September 2018 to 5 September 2019 when he was unfairly dismissed.

The Union outlined on the complaint form that the complainant had refused to take on managerial duties and lost his job because of this. An attempt to ascertain reasons for dismissal was ignored.

In a latter submission dated 5 September 2020, the Union affirmed that the complainant had completed one-year service to ground his claim under unfair dismissals legislation.

There was no appearance by or in behalf of the complainant at hearing. I contacted Head Office at the WRC in case the complainant had forwarded a request for postponement or reason for absence but there was no record of contact in that regard.

I had observed the complainants named representative attending an adjacent hearing on the morning of 15 September and sought to speak with him. However, the hearing was underway, and he was not able to be released. No further contact has followed from the complainant .

On review of the case file, I noted that the complainant had responded to communication from WRC during the lifetime of the complaint, the acknowledgement of claim, notification of cancellation of hearing 1 and the Respondents submission. I was satisfied that he was on proper notice of the hearing details and for whatever reason decided not to appear.

The case before me is a claim for unfair dismissal. I did not have the benefit of the complainant’s presence. I am satisfied that the complainant was placed on sufficient notice of the hearing. Furthermore, a response was received from the complainant’s representative, on 5 September 2020, in response to the respondent submission which had opened with:

This is a submission for the hearing on 15 September 2020.

I took from this that both WRC and the Respondent had confirmed the date of hearing to the complainant. I followed the WRC protocol in relation to a potential “nonappearance of parties “and allowed a reasonable time to permit a late appearance or to obtain a reason for the nonappearance. I commenced the hearing with the respondent present.

I must conclude that the complainant has decided against appearance at hearing. This is regrettable.

Preliminary Argument:

The respondent submitted that the complainant had insufficient service to ground a complaint for unfair dismissal. By way of written submission and later at hearing, the respondent confirmed that the complainant commenced work on 6 September 2018 and was issued notice of termination on 30 August 2019. His last day of work was 5 September 2019.

The contract submitted by the respondent post hearing was unsigned but did confirm the start date of 6 September 2018.

I did not have the benefit of a letter confirming dismissal but have considered evidence adduced by both Mr A and Mr B for the Respondent and accept this evidence on start and finish dates.

Before I can examine the fairness or otherwise of the dismissal in this case, I must be satisfied that that the complainant is covered by the provisions of the Unfair Dismissals Act, 1977.

Section 2(1) provides that the act shall not apply in relation to

(a)    An employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him.

Under section 1 of the Act, the date of dismissal is defined as the date on which a notice of termination expires or would have expired where the notice is, or would have been, in accordance with the contract of employment or with the Minimum Notice a Terms of Employment Act, 1973, whichever is the greater.

I note that the contract of employment provides for a 2 week notice period on behalf of the respondent. The complainant was paid notice for the last week he worked. I find the date of dismissal must be identified as 5 September 2019.

I have considered the uncontested evidence of the respondent. and find that the complainant has one year’s continuous service which allows the complaint to proceed to the substantive level.

Substantive Case:

I have been asked to decide whether the complainant was unfairly dismissed. The complainant had submitted that he had not been provided with a reason for his dismissal at the point of exit or subsequently through a written inquiry.

Section 6(1) of the Unfair Dismissals Act, 1977 provides that a dismissal of an employee shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Once again, I am in difficulty in not hearing from the complainant directly on his version of events.

I heard submissions and evidence from the respondents. I followed with clarifications. The contract of employment and employee handbook, 2020 was received post hearing and copied to the complainant. 1984 EAT case of Looney and Co Ltd v Looney U 843/1984, is useful in clarifying   my role further as Adjudicator of this case.

“ It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employers position would have acted as it did in its investigation or concluded as it did or decided as it did , as to do so would be to substitute our mind and decisions for that of the employer .

Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employers’ actions and decisions are to be judged “.

The law requires that I consider the reasons for dismissal put forward by the respondent followed by an evaluation of the procedural framework relied on to that end.

I accept that the Respondent was satisfied with the complainant’s performance in the early months of his employment. Regrettably, records of probation or the reported conversations which sought improvement were not recorded in the complainants file. Given the presence of a permanent contract, responsibility for 60 employees and an extensive staff handbook on disciplinary procedures, I found that the lack of records on probation and on performance improvement were a long way short of best practice and I addressed the respondent on this directly.

The respondent was keen that I understood that the complainant had not worked at the base he referred to in his complaint form and had not been approached to undertake higher duties. Mr B was incredulous that the complainant had misrepresented his base.

I found both respondents to be at one on the meeting which resulted in the complainants notice of termination of employment. Both saw the complainants alleged failure to complete the meat cutting on that Saturday afternoon as unacceptable in the meat business. It is regrettable that the complainant was not requested to present his version of events to this meeting as company procedures permitted. Mr B expanded further and gave cogent evidence on his perceived difficulties with the complainant’s erratic and inconsistent performance at work which was a downwards spiral as he submitted that requests for improvement were not heeded. He gave a clear account of the reasons for the dismissal and affirmed that these reasons were openly shared with the complainant on the day of his notice. This was uncontested evidence.

I was also taken back that a letter of dismissal was not generated. In addition, no record of appeal was received from the complainant, which again the company policies permitted.

At any rate, taken all the circumstances before me into account, and while having pronounced difficulties on the lack of a clear and transparent methodology surrounding this dismissal. I find that the respondent, in the face of uncontested evidence has proved that there were substantial grounds justifying dismissal.

I find that the respondent can rely on the defence contained in Section 6(4) of the Act as the dismissal resulted wholly from the complainants conduct.

I find that the complainant was not unfairly dismissed.

I would, however recommend that the respondent immediately review its management of staff employment files, to record contemporaneous interactions between staff and management through the contractual probation and subsequently throughout an employment relationship. This is optimal practice in a work setting.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the claim for unfair dismissal, in the absence of the complainant at hearing has not succeeded.

The complainant was not unfairly dismissed.