ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00026026
Parties:
| Complainant | Respondent |
Anonymised Parties | Meat Production Operative | Meat Plant |
Complaint(s):
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00033100-001 | 16/12/2019 |
Workplace Relations Commission Adjudication Officer: Janet Hughes
Date of Hearing: 08/04/2021 and10/02/2022
Location of Hearing: Virtual Hearing via Webex Platform
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute. As the employment relationship has ended, the terms claimant is used for the former employee and employer for the former employer for ease of reference and clarity.
Background:
This is a dispute concerned with the decision to terminate the claimant’s employment related to an alleged refusal to do boning work and walking off the line in a meat factory during production. The first hearing of this dispute could not proceed as the claimant who is Brazilian, could not conduct the hearing in English. A named representative was unable to attend the hearing at short notice-a previous named representative stood down from the case. Allowing for the fact that an interpreter was always required to conduct meetings with the claimant in the workplace there was no option but to adjourn the hearing to allow a representative to attend on another date-one who could also translate where necessary. Correspondence explaining the situation was sent to the person named by the claimant. The hearing was rescheduled. Prior to the hearing the second named representative stood down. The claimant was then offered an interpreter by the WRC and the assistance of that person enabled the claimant to make his case. |
Summary of Employee’s Case:
The former employee worked at the meat factory under a work permit from 26 January 2019 and worked until 16 October 2019 when he was dismissed following a meeting with management. He was a general operative on weekly gross pay of €423. After he returned from his holidays in Brazil in September he was told to work as a de- boner. He said he had never worked as a de-boner before. In his complaint form he stated that he was never missing for any days, never late and had received no warnings of any kind. He had suffered an injury at work. When he was working as a de-boner he injured his wrist. He had no experience of that work and no experience. He went to the doctor and got a cert. They did not particularly like it and he was asked to get another cert-he did, and he returned to work. On the last day he spoke to a named supervisor about doing half de boning half other work. But he was put back de-boning. On the day he was dismissed he spoke to the same supervisor telling him that he was in pain. That supervisor said ‘what am I supposed to do’ you will have to see the bosses. He denied walking off the line. After he spoke to the supervisor he was told to sit in the canteen where he was left waiting for a couple of hours. There was a meeting with management where a colleague acted as interpreter. They told him they were letting him go. He told them he had expenses, he had just returned from holidays, that he needed the work. After that he tried to get other work-on farms for example but on his work permit he was permitted only to do certain types of work and the company was named. Three days after the first hearing day he had to leave the country-because he was not working for the company. In response to the employer submission he said that the supervisor he spoke to on the day was not at the meeting, that the named supervisor who was there as a witness had not spoken to him at all that morning. When the employer referred to a letter of dismissal with an opportunity to appeal the decision-he asked for the address on the letter. When that was read to him he said that he had to leave that house when he was dismissed as the accommodation was provided by the employer-so they should have known that and so he could not receive the letter. Post was passed on to him by another worker but not that letter, so he doubted it was sent. |
Summary of Employer’s Case:
The employer provided a written submission prior to the first scheduled day. This was summarised as follows: The claimant was employed as a flexible operative-all are interchangeable and there is no longer any distinction between de boners and general operatives. The Claimant was in training in the de-boning work when he walked off the line. He had been employed as an experienced meat operative. The claimant was employed on probation and after six months this was extended on the basis that his performance was not satisfactory. A copy of the signed terms and conditions were provided. On May 2nd the claimant was called to a meeting by a supervisor because he had missed a day without a medical cert. It was at that meeting his probation was extended with a further six months. This decision was put down to the claimant’s attitude and reluctance to do certain jobs-or any job he was asked to do. On September 25th the Claimant failed to make his flight back from Brazil resulting in two unauthorised days absence. At his return to work interview he was reminded that he was still on probation. On October 4th and 7th, the claimant was absent from work. He claimed he had a work-related injury. The report showed the claimant said that after his return to work he was doing de-boning work and he said his wrist was sore for two days. The supervisor told him that it was common to be sore when he had not done that type of work for a while and that his wrist was okay. The claimant then said he would go back to the doctor to get a return to work cert as his wrist was okay and later that day he returned with a the fit to work cert. That issue about his alleged workplace injury was under investigation at the time. On that date the claimant said he had no problem doing any work. On October 16th the claimant walked off the line. The company regards walking off the line as gross misconduct as it causes significant interruption to the line, creates health and safety risk to other employees and can cause defects in production and damage to the company’s reputation. There was a delay of a few hours in convening a meeting about the claimant walking off the line. Arrangements had to be made for the meeting to be organised managers to be available and the claimants local union representative was informed of the reason for the meeting and they informed the claimant, so he did know the reason for the meeting. Time was allowed for the local union rep and another employee who acted as interpreter to meet the claimant. At the meeting with management the claimant was given the opportunity to explain why he had walked off the line. It was decided to terminate his employment and he was informed at the meeting where he was also told of his right to appeal the decision. A letter informing of the decision was sent to his home address on October 30th, but he did not reply and he did not appeal the decision. |
Conclusions:
Having considered all of the information provided to the hearing it is self-evident that the claimant had a problem with doing the de boning work as well as other attendance issues. His was not the problem free employment relationship suggested by his complaint form. Whether or not he walked off the line on his final day or in what circumstances is not entirely clear. This is because there is no statement or information from the supervisor the claimant says he spoke to that morning even though he had made other records of discussions with the claimant and it was his verbal report that morning that led directly to the decision to dismiss the claimant. If, as the claimant says, he spoke about his sore wrist again, there is no medical evidence either way. The onus was on the employer and not the complainant to arrange a medical assessment if the claimant did say he had a sore wrist from his work This statement is made bearing in mind that a doctor had recently certified the claimant unfit for five days. It is not unreasonable to conclude that the claimant himself arranged to cut short that certificate and to assure the supervisor of his willingness to work anywhere because he felt under pressure to do so only the week before the alleged walk off the line over the de boning work. There was no outcome to the investigation conducted on 7th of October and no reason was given why that investigation was not completed even if the claimant had returned to work after two days. There was no notice from the employer to the claimant about the purpose and possible consequences of what turned out to be the dismissal meeting. No reason was given as to why this meeting had to be so rushed that it could not have been arranged for a time after he was formerly and properly notified of that meeting. The days of relying on a local union representative to be the message carrier for a meeting of such importance are long gone-or should be. The notes of the meeting are headed ‘dismissal meeting’; there is no record of what the claimant said about what had happened that day on the notes provided and the reference to an appeal does not name the person to whom the appeal was to be made. The appeal period was five days but the letter confirming the dismissal and the reasons for it was issued 14 days after the meeting. Nobody was named in that letter as to whom the appeal was made-and then to compound it all, the letter was sent to an address where the company had to know the claimant was no longer living -because he lost his home when they dismissed him. In effect there was no meaningful appeal process in this case. The conclusion here is that while there were issues with the claimant’s performance and attitude, the manner of his dismissal, even as a probationer, cannot be accepted as procedurally fair. The practices followed by the employer have all the hallmarks of a rush job with a predetermined outcome. And if the procedures are unfair, the dismissal was unfair. Accepting that a walk off a moving production line, if that is exactly what happened, is a serious matter in any meat plant, the implications for an employee on work permit of losing his job are in proportionately potentially life changing as was the case here. Allowing for the inconsistencies in the claimants account of his own attitude and performance and that this was a termination during previously extended probation - compensation of eight weeks gross pay is recommended to resolve this dispute.
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Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the employer pay the claimant €3384 in settlement of this dispute.
Dated: 25th February 2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Dismissal during probation |