ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00030692
Parties:
| Complainant | Respondent |
Anonymised Parties | Worker | Employer |
Representatives | Marius Marosan | Anthony Murphy Solr. Regan McEntee & Partners |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00040690-001 | 29/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00040690-002 | 29/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00040690-003 | 29/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00040690-004 | 29/10/2020 |
Date of Adjudication Hearing: 09/08/2021 and 15/02/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission who in turn refers such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
Having confirmed that the Complainant herein is a Worker within the meaning of the Acts and having conducted an investigation into the said trade dispute as described in Section 13, I, as the so appointed Adjudication Officer, am bound to make a recommendation to the parties to the dispute which will set forth my opinion on the merits of the within dispute.
Where applicable, this may involve an assessment of whether processes have complied with the general principles set out in the Code of Practise on Grievance and Disciplinary Procedures (SI146 of 2000).
It is noted that the Complainant herein is alleging that fair procedures were not followed and that he was unfairly dismissed. It is further noted that the complainant has less than one year of service with the Employer. In such circumstances, Section 20(1) of the Industrial Relations Act of 1969 allows the worker to refer the dismissal to the WRC as a dispute under the Industrial Relations Acts.
In addition to the foregoing the Complainant has also brought a complaint of contraventions of the Protection of Employees (Fixed-Term Work) Act 2003. A fixed term employee means a person having a Contract of Employment entered into directly with an employer where the end of the Contract entered into, is determined (and or otherwise known or knowable) by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event.
Section (6) states that a fixed term employee shall not in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.
An Employer may be able to justify treating a fixed term employee in a less favourable manner on objective grounds.
Section (10) provides that an Employer shall inform a fixed term employee in relation to vacancies which become available in the workplace to ensure that he or she shall have the same opportunity to secure a permanent position as other employees. Such information may be provided by means of a general announcement at a suitable place in the workplace.
A decision as whether this complaint is justified, is made after an investigation into the facts and is made by an Adjudicator of the WRC in line with Section 41 of the Workplace Relations Act 2015. The Adjudication Officer may find the complaint is well founded and may then require the employer to comply with relevant provisions, or may require the re-engagement of an employee. It is also open to the Adjudicator to direct the employer to pay compensation to the employee compensation in such amount as is deemed just and equitable though no more than 2 years remuneration.
Background:
The Complainant herein issued a workplace relations complaint form on the 29th of October 2020. The Complainant’s employment had ended in May of 2020. As the Employee had less than twelve months service he was obliged to dispute the manner and fact of his dismissal using the Industrial Relations Acts. This matter was heard (over the course of two days) by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was heard in accordance with the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was fully represented, and I was given a comprehensive submission. In addition to the claim of Unfair Dismissal the Complainant also claims that the Respondent company has contravened his rights under the Protection of Employees (Fixed-Term Work) Act 2003. The Complainant gave evidence on his own behalf which was tested by the Respondent |
Summary of Respondent’s Case:
The Respondent was also represented, and I was provided with a submission together with supporting documentation. The Respondent says that in the prevailing circumstances it was justified and reasonable in dismissing the Complainant and rejects any contravention of the Protection of Employees (Fixed-Term Work) Act 2003 |
Findings and Conclusions:
I have carefully considered the evidence I have heard over the course of two days. The workplace herein is involved in the growing, sourcing, packaging and distribution of fresh fruit and vegetables. This is an intensive industry, and also a seasonal industry. There is a huge workforce and I accept that there is a practical, operational reason for sometimes engaging seasonal workers on fixed term Contracts of Employment. Three witnesses gave evidence on behalf of the Respondent company, the Company Director M, the Human Resource administrator CB and a Human Resource assistant RF. It was explained to me that the Senior Human Resource Manager was on maternity leave at the relevant time and that this might account for some HR deficiencies which the Respondent company readily admitted are a feature of this case. In the absence of the said HR Manager, I understand that the Director M had stepped in to oversee this function. The Complainant came to work in this workplace in and around May of 2019. Initially he was engaged on a six-month Contract. On the expiration of this Contract, he was given a further six-month Contract which was to run from the 1st of December 2019 to the 31st of May 2020. I note that there was no issue with the Complainant’s work, or at least no issue that was raised with him in the course of his employment. At the beginning of March 2020, the Complainant says he needed to take a break or annual leave to visit his mother at home. There is some confusion as to how and why this was interpreted by the Employer in the way that it was. The Employer appears to have taken the view that the Complainant had resigned his role. This assumption, they say, is evidenced by their notification to Revenue of the change of status of the Employee as having left their employment on or about the 3rd of March 2020. I do not attribute Mala Fides on the part of the Employer in this regard. I understand that the request to leave was made to an individual (L)who was not available to give evidence so I cannot make a final finding. L was the Complainant’s immediate supervisor. I would say however, that Ms. M was very clear that when the Complainant returned to the workplace some six days later, he moved seamlessly back into his job. Nobody questioned his presence there, or his right to continue with his employment. The Complainant wasn’t provided with a new Contract, and I think it is correct to assume that the Complainant returned to the workplace following a short leave to resume his employment on the same terms and conditions as had existed prior to his departure. There was to my mind no break in service. The Complainant worked on for another 2 months. Then on or about the Tuesday the 5th of May 2020 the complainant failed to turn in for his rostered duty assigned on that date. The Complainant returned on the Thursday which was in fact his day off. The Complainant says that L questioned his absence on the Tuesday and sent the Complainant home with a disciplinary letter to attend a meeting on the 8th of May. The Complainant returned to the workplace on the 8th of My and attended the disciplinary meeting which was conducted by L in the presence of RF from HR and an interpreter. L, as I say, is not available to give evidence but RF described a somewhat heated meeting wherein the Complainant pushed back against the proposition that he was serially late and /or absent. RF said the Complainant was getting loud and banged his fist on the table. He did not accept the Roster as evidence of anything. I am satisfied that there were no translation difficulties at this meeting, and it seems likely that the Complainant left the meeting in a vexed state. I cannot know exactly what happened directly after the meeting. There is a suggestion that the Complainant went to his line Supervisor J and squared up to him for having made a complaint or allegation about the Complainant being late or absent. What I do know is that the Director - who was also the acting HR Manager - M, got wind of a rumpus on the shop floor. M accepts she cannot know what that rumpus concerned or who had initiated it. M went to L and having discussed the conduct of the Complainant at the recently held Disciplinary meeting with L she decided to take immediate action. On foot of her understanding of what was going on, she decided she was going to terminate the Complainant’s employment then and there. M gave evidence that she wanted the Complainant out of the workplace where his presence (to her mind) was disruptive and argumentative. M conceded that there had been no investigation conducted and no conversation had between her and the complainant. It was in these circumstances that the Complainant was summarily dismissed some two hours after he had been brought in for a preliminary Disciplinary meeting. The Employer in the person of M, has rightly accepted that the manner of the dismissal was unfair. It lacked procedural fairness and did not afford the Complainant any opportunity of representation and defence. The Complainant was not given a right to appeal the decision and was simply walked off the premises without a second glance. I note that an effort was made to cobble together some reasons for the Dismissal by way of a letter of May 18th but M has conceded that these reasons were not in her mind when she made the decision to terminate the employment. She was reacting to a perceived disturbance in the workplace and to the fact that she believed that the complainant’s presence was a menace to her workforce, and he needed to be removed to protect her staff and bring harmony to the workplace. On balance I accept that the complainant was Unfairly Dismissed. In assessing compensation, I must have regard to the fact that the complainant’s Fixed Term employment only had about another three or four weeks to run. Regarding the complaints under the Protection of Employees (Fixed-Term Work) Act 2003, I would say that these complaints seem to me to be a bit of an afterthought. There is no evidence that in the course of the employment that the Complainant formed the view that he was being treated less favourably than a permanent comparator. I was not provided with any evidence that he was in fact treated lass favourably and the burden of proof rests with the Complainant to establish this fact. In the course of the first day of evidence, a Ms CB gave evidence that the workplace is constantly advertising positions as and when they become available. There are over 200 employees, and they are assumed to keep an eye on the notice boards in the workplace to see opportunities as they come up. I do not accept that the Complainant did not know about such opportunities. In fact, I am aware that the complainant had several persons very close to him also working in this workplace and was not isolated or shunned in the manner he has suggested. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00040690-001 - This complaint is not well-founded and therefore fails. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00040690-002 – I recommend that the Respondent company adheres to it’s own disciplinary procedures Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00040690-003 - This complaint is not well-founded and therefore fails. Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts CA-00040690-004 - Having already articulated my opinion on the merits of the within dispute, I confirm I find that the complainant was Unfairly Dismissed, and I am recommending that the Respondent pay to the Complainant the sum of €2,000.00 within four weeks of the date of this decision.
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Dated: 21st June 2022.
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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