Employee

Employer

Anonymised Parties

A Warehouse Operative

A Recruitment Agency

Representatives

Self-represented

 Self-represented

Act

Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00043876-001

05/05/2021

The employee registered with the employer’s recruitment agency in January 2020 and, about a month later, he was assigned to a role as a warehouse operative with a well-known retailer.  For convenience, I will refer to the retailer as “Grocery 1.”  On November 30th 2020, Grocery 1’s retail manager wrote to the agency raising concerns about the employee’s adherence to health and safety regulations and his aggressive behaviour towards his colleagues and supervisors.  An investigation took place and the employee was informed that he was not to return to work with Grocery 1.  He was offered a cleaning job with another of the employer’s clients, which he declined, as it was too far from his home.  He was then informed that a job as a delivery driver might become available, but that role didn’t materialise when the client decided not to recruit a driver.  The employee remained on the books of the agency until July 2021, when he requested a P45.  He got another job with a medical devices company and then he returned home to Poland.  He now works with another grocery retailer.

Under section 13 of the Industrial Relations Act, the employee has submitted a dispute for investigation.  He complains that his dismissal was unfair.  The employer’s position that he was not dismissed, but that he resigned when he requested his P45. 

In a submission he provided in advance of the hearing, and in a detailed statement at the hearing itself, the employee set out the reasons for his contention that he was unfairly dismissed. 

About two and a half months after he commenced working in Grocery 1, the employee said that a colleague pushed him in front of a loading car and he reported the incident to his manager.  He said that nothing was done and he was accused of not adhering to safety regulations.  He said that he was the victim but he was treated as the perpetrator.

On July 20th 2020, he complained to a manager in Grocery 1 that he was struck by a fork truck, which connected with his left foot while it was being driven in reverse by one of his colleagues.  He said that he was asked to sign a document acknowledging that the accident was his fault and he had to seek advice from a solicitor after he refused to sign it.

At some point during his employment with Grocery 1, the employee said that his car was scratched.  He had problems getting CCTV footage from the company, and this delayed the processing of his insurance claim.

The employee said that he reported to management in Grocery 1 that a colleague had offended him and that he was being bullied.

The employee said that a manager instructed him to take holidays without consulting him to see if the time was suitable.  He said that he didn’t get any help from the employer to deal with this.

During a meeting with the management in Grocery 1, the employee said that the meeting was stopped when they said that he was behaving aggressively.  He said that he was told that the warehouse manager would come to the meeting, but he was left waiting for an hour and she didn’t arrive.  He was then instructed to go back to work.

About two months before the incident that led to his removal from the warehouse, the employee said that his supervisor told him that he needed to improve his picking rate.  When he improved, he said that his supervisor said he was too quick.

On November 13th, he complained that he was threatened by another colleague, when he moved his colleague’s fork truck out of his way.  He named the witnesses to this incident and he asked for an investigation to be carried out.

The employee submitted an appeal of the employer’s decision to remove him from Grocery 1, but before the appeal was heard, he was instructed to return property belonging to Grocery 1.

The employee thinks that, after the November 13th incident, when they asked for him to be removed from the warehouse, Grocery 1’s managers were influenced by all the earlier incidents.  He said that he was dismissed because his supervisor didn’t like him. 

The employer provided a detailed submission in advance of the hearing of this dispute.  A copy of an email dated November 30th 2020 from Grocery 1’s warehouse manager was included in the documemnts and this shows that, on that date, the warehouse manager raised concerns with the employer about the employee’s conduct.  The manager referred to “huge issues” related to the employee’s failure to observe basic safety regulations, particularly regarding the use of fork trucks.  She also said that he was aggressive and abusive towards his colleagues and supervisors.

The employee was informed that he was not to return to work with Grocery 1 and that he was suspended with pay, until an investigation was carried out.  On December 2nd, he attended a meeting over Zoom with a manager in the employer’s company.  On December 4th, he attended a disciplinary meeting over Zoom.  The employer’s manager contacted the warehouse manager and she provided some clarification of incidents that occurred on November 7th and 13th.

On December 10th, the employee attended another meeting over Zoom, to be informed of the outcome of the disciplinary investigation.  On the balance of probabilities, the employer believed the version of events provided by Grocery 1’s managers and the employee was informed that his assignment with them was terminated.  He was also informed that the employer would look for another job for him.  He was advised that he could appeal against the decision not to allow him to continue working for Grocery 1 and he submitted a letter of appeal on December 16th.  On December 11th, the day after the disciplinary hearing, the employee was asked to return his uniform and other items associated with his job in Grocery 1.

On December 17th, the employee declined an offer of a cleaning job and he confirmed that he would accept a job as a delivery driver.  Due to the constraints on employment during 2021, the employer’s representative said that during the course of the pandemic, their workforce was reduced from 3,000 to around 200 and they had no other suitable vacancies available.  On July 7th 2021, the employee asked for his P45.

The employer’s position is that the employee was not dismissed, but that he was on their books when he looked for a P45 to enable him to take up work elsewhere. 

Following the hearing of this dispute, I gave serious consideration to the submissions made by the employee and the employer.  I have listened to the employee’s version of events and it is apparent that he had a difficult relationship with his colleagues and managers in Grocery 1, although I cannot determine the cause of these difficulties.  I am mindful of the working environment at the time and that, when he was removed from working in the warehouse, Grocery 1 was an essential service operation at the height of the Covid-19 pandemic and it was extremely difficult for grocery and retail businesses to find workers.  I am satisfied that, unless the managers of Grocery 1 had legitimate concerns about the employee’s conduct, they would not have issued the email that they sent to the employer on November 30th 2020, in which the warehouse manager described the situation with the employee as having “now gotten too serious.”

Taking account of all the information provided to me in advance of the hearing, and at the hearing itself, I am satisfied that the employee was not dismissed by the employer, but that he was removed from their client’s site because of his conduct.  As the employee lived in Cork at the time, and as Grocery 1 was their only major client in Cork, he could not be re-assigned there and he was instead offered an alternative job as a cleaner.  While it may not have been unreasonable for him to decline this job due to the distance from his home, the employer kept him on their books and I am satisfied that he was not dismissed, but that he remained available for a new assignment until he found another job with a different employer in July 2021.

I have concluded that the employee was not dismissed and I recommend that the employer takes no further action with regard to this matter.

Agency worker, dismissal