Complainant

Respondent

Parties

Carolina  Graterol

Green Choice Import Ltd

Representatives

Emma Neville, Ahern Roberts O'Rourke Williams Solicitors

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-00044401-001

31/05/2021

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

CA-00044401-002

31/05/2021

The Complainant commenced her employment with the Respondent on 19th September 2020. Her employment was terminated on 14th May 2021. She was paid €310 gross weekly and worked 31 hours per week.

In her written submission, the Complainant submitted as follows:

The workplace conditions in the Respondent organisation could be described as those of a parallel society/economy with very little, if any, attention paid to basic Irish employment and health and safety law. The owners of the business and the employees at the Ennis store were of various foreign national backgrounds and many of the workplace behaviours and attitudes were those that one might associate with less developed economies. The Complainant claimed that she was repeatedly bullied, verbally abused and was the victim of threatening behaviour often in public by a young Polish employee, Mr Paszkowski. The Complainant submitted that Mr Paszkowski (a shop assistant) would often assume himself to be in a position of authority over the Complainant, undermine and humiliate her in front of customers and roar at and insult her in the middle of the shop. The store manager, Mr Victor Almeida was fully aware of Mr Paszkowski's behaviour, and the Complainant claimed that she had brought it to his attention on several occasions, but the manager seemed not to interpret Mr Paszkowski's behaviour as inappropriate and took no action to remedy the situation.

The Complainant submitted that she was finally followed to the back of the shop and corned by Mr Paszkowski on the 14th of May 2021 as she prepared to leave after finishing her shift and she was seriously and aggressively verbally abused. Mr Paszkowski repeatedly used expletives describing the Complainant and told her to "f*** off".  He also said that the shop owners were going to fire her. The Complainant submitted that she returned home that afternoon crying and later sent a WhatsApp message to the shop manager Mr Almeida to tell him what had happened and to ask him to do something about the situation. The Complainant sent the following message at 2.32pm: “Hi Victor, I tried to call you. I am very upset after work today. Przemek repeatedly insulted and verbally abused me in the shop with customers there. It is not acceptable in work that a colleague calls me b**ch. You need to do something about this”. The Manager telephoned her later that evening and in a one-minute conversation said that the owners had decided to fire both the Complainant and Mr Paszkowski. The Complainant was still upset after the incident from earlier that day, and she did not challenge Mr Almeida at the time. The Complainant sent another WhatsApp message the next morning (15th May 2021) to ask why she was dismissed. Mr Almeida replied two days later on the 17th of May 2021 to say that it was not his decision. The Complainant sent a message to Xiaohui Lin, the wife of Feihui Yu and co-owner of the company on the 18th of May 2021 asking why she had been dismissed but the co-owner did not reply.

The Complainant submitted that she had worked at the shop for 8 months. She asserted that her plea by WhatsApp to Mr Almeida on the 14th of May 2021 to do something about Mr Paszkowski's aggressive and inappropriate behaviour was a protected disclosure. She argued that it cannot be allowed to pass that the shop owners can knowingly and repeatedly ignore basic Irish employment and health and safety law and then avoid repercussions simply by dismissing the Complainant before the arbitrary 12-month qualification period for unfair dismissal.

At the adjudication hearing Mr Cathal O’Dalaigh, the Complainant’s partner made a submissionon behalf of the Complainant. He said that the Complainant was afraid for her safety. He noted that the Complainant made a complaint to the Health and Safety Authority on 1st June 2021 in relation to bullying she had suffered. He said that the Complainant spoke to the Manager, Mr Almeida in December 2020, January 2021 and February 2021. Mr O’Dalaigh argued that the WhatsApp message the Complainants sent to her manager was a written disclosure. He said that it might not have contained the legal language, but it was a protected disclosure. He further argued that the Respondent understood that it was a protected disclosure and that it was a serious escalation of the matter and for that reason the Complainant was dismissed.

Mr O’Dalaigh relied on Section 5(3)(d) of the Protected Disclosure Act. He further relied on Section 5(8) of the Act and argued that a disclosure is presumed to be a protected disclosure until the contrary is proved. Therefore, the burden of proof is with the Respondent to show that it was not a protected disclosure. Mr O’Dalaigh asserted that the Complainant became an inconvenience, she did not get any protection and her disclosure was not investigated. He also asserted that the Respondent misled the Complainant by implying that both employees were dismissed.

In reply to the Respondent’s written submission to the WRC dated 30th June 2021, Mr O’Dalaigh asserted that the three purported warning forms are complete fabrications, they were never seen before and did not corroborate the Manager’s texts as these did not mention any issues with the Complainant’s performance. He argued that the Respondent cannot provide any evidence that there were minutes of the alleged meetings kept, that the forms were delivered or received by the Complainant. Mr O’Dalaigh noted that the forms require an employee’s signature but none of them was signed by the Complainant.

The Complainant confirmed at the adjudication hearing that she has had some 17 years of experience and, in cross-examination, confirmed that she was aware that Mr Paszkowski was in his 20s. The Complainant said that her manager assured her that, if he had a choice between her and Mr Paszkowski, he’d fire Mr Paszkowski. The Complainant said that she did not want that to happen. She confirmed that she never put her complaints in writing, she said that she trusted that her manager would deal with the matter. When asked by the Respondent’s solicitor, the Complainant confirmed that it did happen that she was late for work 3-5 minutes, but she said that “all her colleagues were late”. It was put to the Complainant that in the period from January 2021 to her dismissal on 14th May 2021 she was late on 33 occasions. The Complainant said in reply that she used to work 9am-6.30pm without a break when it was required. The Complainant also noted that the Manager had a password and could override the clock in records.

It was put to the Complainant that the problems started when Mr Paszkowski returned from being deployed to a shop in another location and that the Complainant did not like to take directions from someone half her age. The Complainant rejected this assertion. She noted that Mr Almeida is in his 20s, he was her manager and she trusted him. The Complainant said that she thinks that everyone should be respected, she had asked the Manager to arrange a meeting with Mr Paszkowski and resolve the matter as she wanted to have teamwork in the shop. The Respondent’s solicitor questioned why the Complainant continued to work if she was bullied, to which the Complainant answered that she needed a job. The Respondent’s solicitor put it to the Complainant that, with her experience, she would know how to make a grievance. The Complainant said that she had never had problems before, she spoke with her manager and reported the matter. The Respondent’s solicitor argued that, given the Complainant’s submission she has good grasp of employment law, the Complainant noted that she obtained legal advice. The Respondent said that the Respondent has CCTV footage which shows that the Complainant was a bad employee, shouting at customers, etc. The Complainant answered that all her colleagues were late, she worked on her days off when required, she worked during breaks, she would open the shop and she was never told that she was a bad employee.

In its written submission, the Respondent stated that the Complainant was warned on several occasions in relation to her rudeness, tardiness, absenteeism and fighting with other staff members and members of the public. The Respondent attached what was purported to be copies of formal written warnings forms dated 27th March 2021, 28th April 2021, and 14th May 2021.

The Respondent submitted that the Complainant’s employment was terminated on 14th May 2021. The Respondent rejected the Complainant’s claim that she was dismissed unfairly due to making a protected disclosure.

At the adjudication hearing, the Respondent submitted that the Complainant was warned on three occasions and three warnings were put on her personal file. The Respondent argued that the Complainant does not have 12 months service and she is relying on the Protected Disclosure Act retrospectively, post-dismissal. The Respondent argued that the Complainant did not like that Mr Paszkowski was half her age, “could be her child”, and was giving her instructions. The Respondent suggested that as Mr Paszkowski was half of the Complainant’s age so “it was not bullying”.

The Respondent relied on Baranya v Rosderra Irish Meats Group Limited [2020] IEHC 56 and John Clarke v CGI Food Services Limited and CGI Holding Limited.

Evidence of Mr Almeida, the Manager

Mr Almeida said that he hired the Complainant in 2020. He said that he had no issues with her in the first few months. He stated that in January 2021 he let all staff known that Mr Paszkowski was in charge of the Ennis shop when he was not there. He claimed that the problems with the Complainant started at this stage. She was often 3-5 minutes late. Mr Almeida said that the Complainant approached him to say that Mr Paszkowski didn’t do what she asked him to do, and Mr Paszkowski told him that she was trying to be a manager. Mr Almeida said that, in his opinion she complained because she did not like taking orders from a younger person. In relation to the three warnings, Mr Almeida said that the Complainant was constantly arriving late. He was told by the Respondent that there was no need for an employee’s signature on the form. He said that he first spoke to the Complainant on 27th March 2021. He then had another formal meeting in April 2021. Finally, he spoke with the Complainant on the phone on 14th May 2021, the day of her dismissal.

Mr Almeida said that on 14th May 2021 he came back to the shop at approximately 1.35pm and was informed by a customer of an altercation between the Complainant and Mr Paszkowski. He spoke briefly with Mr Paszkowski first who told him that he had asked the Complainant a question and she replied, “ask Victor” [the Manager], which resulted in an argument. Mr Almeida said that Mr Paszkowski told him that he got “angry and sick of her”. Mr Almeida said that he viewed the CCTV footage of the incident. He then called Mr Fen Hui Yu, the owner who told him that he had enough of the Complainant being late and rude and who instructed him to dismiss the Complainant. He spoke with the customer and another employee who was present at the time. He then called the Complainant and told her that he had to fire her, to which she replied “ok”. The Complainant then called back asking for an explanation as to why was she fired. She did not mention that she was making a protected disclosure. He confirmed that he never asked the Complainant what had happened and never investigated the matter further.

In cross-examination Mr Almeida confirmed that he verbally informed all staff that Mr Paszkowski was in charge. He denied that he told the Complainant directly that Mr Paszkowski was not in charge. The Complainant referred specifically to a conversation they allegedly had after Mr Almeida had returned from his holidays. Mr Almeida denied that he had taken time off.

The Complainant put it to Mr Almeida that on a day one of the purported warning forms was completed, she had a medical appointment he was aware of, Mr Almeida said that maybe the form related to a “different day”.

It was put to Mr Almeida that while the Complainant clocked in and out, the Manager knew the password and could override the system. Mr Almeida confirmed that this was the case.

Mr Almeida confirmed that the purported warning forms were never given to the Complainant, but they were “on her file”. He confirmed that the Respondent did not have a grievance and disciplinary procedure in place at the time. He also confirmed that the Complainant did not have advance notice of the meetings, she had no representation, there were no formal records of these meetings, and no minutes were kept.

Mr Almeida said that he has been in his role for 2 years and dismissed seven people during this time.

Evidence of Mr Paszkowski, an employee Mr Paszkowski in his evidence said that he was moved back from being deployed to another shop in the middle of January 2021. He said that up to the point when he became supervisor things were ok.

In cross-examination, Mr Paszkowski confirmed that he followed the Complainant to the back of the shop. He said that she was uncooperative, late and rude so he became frustrated and told her to f**k off”.

Evidence of Ms Xiao Hui Lin - the Respondent Ms Lin said that she delegated a lot to the Manager. She said that around August/September 2020 the Respondent was preparing to open another shop and she asked Mr Almeida to transfer there and pick someone to manage Ennis shop. He picked Mr Paszkowski.

Ms Lin said that the Complainant’s behaviour was not good for the business and that she told the Complainant that if she behaves that way, she won’t keep her.

In cross-examination, Ms Lin was asked why Mr Paszkowski promotion to a supervisor was not circulated in writing as it had been done previously. Ms Lin said that she was very busy, and she had no idea how Mr Almeida communicate the matter. She confirmed that it was the Respondent’s decision to dismiss the Complainant. She was aware of the message of 14th May 2021, but she was “super busy”.

The Complainant in the within case commenced her employment with the Respondent on 19th September 2020. Her employment was terminated on 14th May 2021. The Unfair Dismissals Act provides that an employee must have one years’ continuous service to avail of the protections of the Act except in certain circumstances. There was no dispute that the Complainant does not meet the one-year requirement set out in the Act. The Complainant claimed that she was dismissed as a result of her having made a protected disclosure. The Unfair Dismissals Act 1977 provides that the dismissal of a worker for having made a protected disclosure is automatically unfair and can be complained of, notwithstanding that the worker lacks one year's continuous service. This requires me to consider whether the Complainant can avail of the protection of Section (2) (ba) of the Act.

The relevant law

I note that the Protected Disclosures Act is “An Act to make provision for and in connection with the protection of persons from the taking of action against them in respect of the making of certain disclosures in the public interest and for connected purposes.”

Section 5 of the Protected Disclosures Act provides as follows:

“5. Protected Disclosures

(1) For the purposes of this Act “protected disclosure” means, subject to [subsections (6) and (7A)] and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker's employment.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker's contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker's employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

(7) Subject to subsection 7A, the motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(7A) Where a worker, referred to in subsection (1), makes a disclosure of relevant information in the manner specified by that subsection, and in respect of that disclosure of relevant information it is alleged that the disclosure concerned the unlawful acquisition, use or disclosure of a trade secret (within the meaning of the European Union (Protection of Trade Secrets) Regulations 2018 (S.I. No. 188 of 2018)), such disclosure is a protected disclosure provided that the worker has acted for the purposes of protecting the general public interest.

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”

Industrial Relations Act 1990 (Code of Practice on Protected Disclosures Act 2014) (Declaration) Order 2015 S.I. No. 464 of 2015provides

“30. What is the difference between a grievance and a protected disclosure?

A grievance is a matter specific to the worker i.e., that worker's employment position around his/her duties, terms and conditions of employment, working procedures or working conditions. A grievance should be processed under the organisation's Grievance Procedure.

A protected disclosure is where a worker has information about a relevant wrongdoing.

31.It is important that a worker understands the distinction between a protected disclosure and a grievance. The organisation's Whistleblowing Policy (see below) should make this distinction clear.

Examples of a grievance

• Complaint around selection criteria for a promotional post.

• Complaint around allocation of overtime.

Example of a whistleblowing disclosure

• In a hazardous work situation information regarding a failure to provide or wear protective clothing and adhere to health and safety guidelines.

• Information about the improper use of funds, bribery and fraud.”

I have carefully considered the submissions of the parties and evidence adduced.

The Complainant argued that her WhatsApp message sent to her Manager, Mr Almeida on 14th May 2021 at 2.32pm constitutes a protected disclosure within the meaning of the Act. In that regard, the Complainant relied on Section 5(3)(d).The Respondent argued that the message does not meet the definition of a protected disclosure and that the communication was a grievance. In the alternative, the Respondent argued that the message was sent after the dismissal was executed and, therefore, the Complainant cannot rely on an alleged disclosure made post-dismissal.

While it is recognised that a grievance and a protected disclosure may overlap in certain circumstances, in the within case the Complainant asserted that the relevant communication was a protected disclosure whereas the Respondent argued that it was a grievance. For the purpose of the Act a protected disclosure is a disclosure of relevant information which the Complainant reasonably believes shows one or more relevant wrongdoings. In the within case, the Complainant argued that the relevant wrongdoing is “(d) that the health or safety of any individual has been, is being or is likely to be endangered”. I find that the communication by the Complainant related to the fact that she was upset and that she was repeatedly insulted and verbally abused. The Complainant stated in her communication that it is not acceptable that a colleague calls her names and asks the Manager “to do something about this”.

In Tibor Baranya v Rosderra Irish Meats Group Limited [2020] IEHC 56 the High Court held as follows:

“Section 5(2) defines relevant information as information in the reasonable belief of the worker, tends to show one or more of the relevant wrongdoings. That some information in the relevant communication, must attribute some act or omission, on the part of the respondent, that the appellant might reasonably believe tends to show one or more of the relevant wrongdoings is clearly necessary.”

I find that the relevant communication did not disclose any wrongdoing on the part of the Respondent.  It appears to me that the Complainant’s communication was an expression of grievance and a request to take an action in relation to said grievance, and not a protected disclosure. In the circumstances, therefore, the Complainant cannot rely on the exception to one year’s continuous service set out in Section 6 (2) (ba) of the Act.

While I have serious reservations about the procedure employed by the Respondent in executing the Complainant’s dismissal, I find that that that the communication by the Complainant was not a protected disclosure and therefore her claim that she was dismissed for having made a protected disclosure is not well founded. Accordingly, I find that the complaint of the unfair dismissal is not well-founded.

I declare this complaint to be not well founded.

The Complainant referred her complaint to the Director General of the WRC under section 7 of the Act claiming that she did not receive a statement in writing of her terms of employment.

In the “Complaint Specific Details or Statement” section within the WRC Complaint Form the Complainant made a number of other allegations such as the Respondent’s unwillingness to register her for tax purposes, cash payments, the discrepancies in cash payments to her and the amounts declared to the Revenue Commissioners, payment below the national minimum wage, not receiving payment for annual leave.

The Respondent did not contest the claim that the Complainant was not furnished with a statement in writing of her terms of employment.

The Terms of Employment (Information) Act, 1994 stipulates as follows:

3. Written statement of terms of employment

(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, 

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment,

7(d) in relation to a complaint of a contravention under section 3, 4, 5 or 6, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

There was no dispute that the Complainant had not been furnished with a statement of her terms of employment by the Respondent. Section 7 of the Act empowers me to award compensation not exceeding four weeks remuneration in respect of breach of the Act. Having carefully considered the circumstances of this case, I find that the complaint is well founded and award the Complainant four weeks’ remuneration in compensation.

I note that in the Complaint Specific Details or Statement section of the WRC Complaint Form the Complainant raised a number of other matters as listed above. The Complainant did not make a complaint under the relevant legislation in respect of these allegation, nor did she make a submission in that regard at the hearing. I, therefore, find that I have no jurisdiction to make any findings in that regard.

I declare this complaint to be well founded and I order the Respondent to pay the Complainant compensation of €1,240 which is equivalent to four weeks’ pay.

Protected disclosure – grievance- unfair dismissal - terms of employment