Complainant

Respondent

Parties

Li Ming  Zhu

Camseng International Foods (Ireland) Limited

Representatives

Robert Crawley B.L. instructed by  McGuigan Solicitors

Eleanor Power B.L. instructed by  Hegarty & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00034612-001

13/02/2020

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

CA-00034612-002

13/02/2020

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

CA-00034612-003

13/02/2020

At the start of the hearing I explained the implications of a recent Supreme Court judgement in Zalewski v Adjudication Officer and WRC. This meant hearings are now held in public and decisions will not be anonomised. I also clarified that evidence should be taken on oath where there is a serious and direct conflict in that evidence. I told the parties I would be prepared to continue with the hearing without evidence being taken on oath but I would consider what to do if a serious and direct conflict arose. Both parties confirmed they understood what I had said and that they were happy to continue with the hearing.

The complainant started work for the respondent on 2 January 2018 as an Area Sales Manager. He was €35,000 per annum and was dismissed on 6 February 2020.

Summary of Complainant’s Case: the complainant says he was on a mixture of annual leave and Paternity Leave from 1 September 2019 and was due to return on 13 October 2019. The day before this, without prior warning or consultation, the complainant was sent a message informing him he would be working as a Driver Assistant on his return. He was given no reason for the change. In January 2020 the complainant had a meeting with the Managing Director (MD) and was informed he would be moved from Drivers Assistant to an inside sales position on a permanent basis. The MD said this was because he did not have a full driving licence. The complainant said he had a licence since August 2019 and had told the MD when he got the licence. Then the MD gave a different reason; that his sales had dropped.

The complainant felt he had been subject to unfair treatment and victimised, in having his position changed unilaterally. He submits the respondent was in breach of the Paternity and Benefit Act 2016 by not allowing the complainant to return to the same job he had before going on Paternity Leave.

The complainant submits this treatment also amounts to discrimination under the Employment Equality Acts on the grounds of family status, as he was recently made a parent. 

Summary of Respondent’s Case: the respondent submits there were issues with the complainant’s sales figures. At a performance meeting on 22 April 2019 with the MD and a Director the sales figures were discussed, also support to help him improve sales performance and the issue of having a provisional licence were discussed. There was a further performance meeting on 25 July 2019 when the complainant’s low sales figures and his role in securing new customers were discussed. The issue of him obtaining a full driving licence was also raised.

On 23 October 2019 there was another performance meeting at which the complainant was asked about his poor sales figures. The complainant agreed to continue efforts to increase his sales and to report to the MD weekly on progress with sales. The complainant was again asked when he was going to take his driving test. The respondent submits nothing really changed when the complainant returned to work. On occasions sales representatives are required to accompany a delivery driver to assist the driver. The complainant was assured this was not a permanent move.

In or around January 2020 the respondent offered the complainant a change in position internally, based on his performance and sales figures. He was told there would be a change in salary when the change was to occur in March 2020.

Findings and Conclusions: the complainant submits that his work was changed when he returned from Paternity Leave on 23 October 2019, in contravention of both the Paternity Leave and Benefit Act and the Employment Equality Act. The referral of this claim was made on 13 February 2020 under the Employment Equality Act. No mention of the Paternity Leave and Benefit Act was made at that time. It was first made when the complainant’s representative sent in a written submission on 25 June 2020. This is more than six months after the alleged contravention on 23 October 2019 and no reasonable cause was provided for not making the referral within this period. I therefore find the claim under the Paternity Leave and Benefit Act falls outside the time limits provided by section 41 of the Workplace Relations Act.

The claim under the Employment Equality Act was made within the time limits. The complainant says he was discriminated on the grounds of Family Status. Section 6 (1) states:

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ )”

The complainant alleges a change took place when he returned from Paternity Leave, whilst the respondent says ‘nothing really changed’. What actually changed is not entirely clear, but I can find nothing in the evidence provided that links any change to the protected ground cited by the complainant. I therefore conclude the complainant is unable to establish a prima facie case of discrimination under the Employment Equality Acts.

Summary of Respondent’s Case: the respondent submits that on 6 February 2020 the MD was made aware that the complainant had passed confidential company information to a third party. The complainant was given a list of customers with outstanding payments, including the names and amounts of payments. This information was provided for the sole use of the complainant and was not to be shared or given to any third parties. Furthermore, the complainant used his personal phone to send this list to the third party, in breach of the respondent’s privacy and data protection policy. The complainant alleged his company-provided phone was damaged but, at no point, did he inform the MD or seek a replacement phone.

Upon discovering the breach the MD held a meeting with the complainant in the respondent’s warehouse office with the Director and a Manager and put the matters to him. The MD informed the complainant of the seriousness of the breach. The complainant confirmed he had provided confidential information to the third party from his personal telephone.  During the meeting the complainant became very argumentative and aggressive towards the MD and continually interrupted him. The MD requested the complainant leave and calm down, as he felt threatened by his behaviour. The complainant left the respondent’s premises without further communication.

The respondent determined the data breach and the providing of confidential information to a third party amounted to gross misconduct and implemented the disciplinary procedure at the final stage of dismissal, as was their right under the complainant’s contract of employment and their employee handbook.

The following day the MD tried to contact the complainant to discuss the matter, but to no avail. Later that day the MD informed the complainant by letter that his employment was terminated due to gross misconduct. The complainant was given 5 days to appeal. He did not appeal and the respondent arranged for any outstanding monies to be paid to the complainant.

Summary of Complainant’s Case: on 6 February 2020 the complainant submits he was asked to seek payment of an overdue payment. The customer queried the amount owed so the complainant requested information about the customer account. This information was printed out and the complainant used his personal phone to photograph the information. He sent the information to the customer. It did contain information on other customers. The MD became aware of this and confronted the complainant and told him he was in breach of the company policy and terminated his employment with immediate effect. On 7 February 2020 the complainant received a letter from the respondent confirming the termination of his employment on the grounds of gross misconduct.

The complainant submits he was innocent of any wrongdoing, the respondent failed to follow any disciplinary procedures, there were no adequate grounds to warrant summary dismissal or a finding of gross misconduct, there was no consideration of any other sanction. The complainant was denied fair procedures, including a fair and impartial hearing, and the opportunity to respond to any evidence against him.

Findings and Conclusions: the complainant was given information in relation to an overdue payment on a customer account and he passed on the information to the customer. It appears the forwarded document also contained information about other customers. This should not have been given to the first customer. The MD was fully entitled to discuss this with the complainant; to find out what happened and to consider what action he should take next.

However, he did not consider what action he should take next; i.e. whether it was appropriate to invoke the disciplinary procedure set out in their Employee Handbook. He did not hold a meeting at that time. He discussed this with the complainant. The Director and the Manager were just working in the same open office area and got involved when the discussion between the complainant and the MD got heated. The MD dismissed the complainant on the spot.

S.I. 146 S.I. No. 146/2000, commonly referred to as the “Code of Practice on Grievance and Disciplinary Procedures”, sets out a basic procedure which a Respondent should follow prior to dismissing an employee. These include; putting the allegations to the Complainant in writing in advance of a hearing, allowing the Complainant the opportunity to properly defend himself at the hearing, permitting the appropriate right of representation, and allowing an internal appeal of any determination. In addition, I note the Respondent’s employee handbook sets out a multi-step disciplinary process, incorporating all of the protections set out in S.I. No. 146/2000.

The respondent completely failed to take any of the above procedures.

Section 6(7) of the Unfair Dismissals Act states: “Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

( a ) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

( b ) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

Based on the complete absence of procedures I find the dismissal to be unfair.

Summary of Complainant’s Case: the complainant submits he received no minimum notice payment when he was dismissed.

Summary of Respondent’s Case: the respondent submits there is no obligation to provide the required statutory minimum notice period or for the complainant to be paid in lieu of notice given his employment was terminated due to his own actions of gross misconduct.

Findings and Conclusions: as I have found the dismissal to be unfair I also find the complainant has an entitlement under Section 4 of the Minimum Notice and Terms of Employment Act, 1973 which states:

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks, ….”

I find the complainant to be well founded and award the complainant two week’s salary; €1,346.15.

CA-00034612-001: for the reasons stated above I find the complainant has failed to establish a prima facie claim of discrimination.

CA-00034612-002: for the reasons stated above I find the complainant was unfairly dismissed. The complainant submitted extensive documentation showing his efforts to find alternative employment; which have to date proved unsuccessful. Given all the circumstances I award the complainant six month’s salary; €17,500.

CA-00034612-003: for the reasons stated above I find the complainant to be well founded and award the complainant €1,346.15.

Unfair dismissal – lack of procedures