UDD2237

1.Appeal of Adjudication Officer Decision No(s).ADJ- 00028819 CA-00038459-001

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 9 February 2021 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 10 May 2022. The following is the Determination of the Court:-



DETERMINATION:

This is an appeal by Mr Petru Fodor of a decision of an Adjudicator Officer (ADJ-00028819) dated 8 January 2021 under the Unfair Dismissals Act 1977. The WRC claim was lodged on 20 June 2020.

The fact of dismissal is in dispute. The Adjudicator held ‘the complainant was not dismissed’.

A Notice of Appeal was received by the Labour Court on 09 February 2021 and a hearing conducted on 10 May 2022. For ease of reference the parties are referred to in this Determination using the same designation as at first instance. Hence, Mr Fodor is referred to as “the Complainant” and Doyles Veg Prep Limited is referred to as “the Respondent”.


Background

The Complainant worked for the respondent company as a Production Assistant from July 2016 until June 2020.

It is accepted that during his employment the Complainant worked different shift patterns at different times. He was rostered to work from 18:00 to 04:00 when he first commenced work. His shift pattern changed to a new starting time of 08:00 in January 2018. There was another change in the shift pattern in 2019, when the Complainant started work at 04:30. From February until the Covid lockdown commenced in March 2020 he reverted back to an 08:00 shift start. The Complainant was placed on temporary lay-off on 18 March 2020 due to the negative impact of Covid-19 on the business. He returned to work from temporary layoff on Friday 19 June 2020.

It is accepted that on Tuesday 24 June 2020 the Complainant attended a meeting with his supervisor, Mr Cristian Grinov, and the HR Manager, Ms Suzanne Ray. Mr Grinov provided interpretation support to the Complainant during the meeting. The Complainant’s employment terminated at that meeting.

The Complainant submits the Respondent took advantage of his low level of English knowledge and made him sign a resignation letter that was prepared in advance of the meeting. The Respondent submits that the Complainant resigned his position voluntarily and was not dismissed. He was a valued member of staff, and the company had no reason to let him go.


Submission on behalf of the Complainant

The Complainant worked for the company for almost 4 years during which time he was a good worker and enjoyed his place of work and his job. Prior to his return to work after the Covid lockdown lay-off, he travelled to work with a colleague who had his own car. When the Complainant returned to work in June 2020 he started his shift at 08:00 but was informed by his supervisor that the new shift start time was 04:30. The colleague who previously gave him a lift to work was not working anymore, so he had no way of getting to work that early.

On the 24 June 2020, the Complainant was asked to attend a meeting at which he was told by his supervisor to sign a form which stated that the company has to end his employment because he could not attend work at 04:30 in the morning. The Complainant does not know exactly what was said at the meeting, as there were no minutes of the meeting, and he was reliant on the supervisor for translation.

Mr Marius Marason, on behalf of the Complainant, submitted that the Respondent took advantage of the Complainant’s low level of English by pressurising him to sign a resignation letter that was pre-prepared for this meeting. No written notice was given to the Complainant about his shift change, although the Respondent had sought to change his working pattern.

Mr Marason submitted that the Complainant was required to attend a meeting without any prior notice. He was not afforded representation or informed in advance about the nature of the meeting. He was not offered the option to be accompanied by a trusted colleague to translate for him, nor was he advised to seek legal advice regarding his options on the change of working hour shifts. He was pressurised to sign a resignation letter. He was not offered any alternative employment options. Mr Maroson referred the Court to UDD2023 Wasim Haskiya v Keelings Retail Unlimited Company where an employee was asked to sign a document which was not explained to him.

The Complainant has attempted to mitigate his losses since his employment terminated and has tried to secure work elsewhere.


Evidence of the Complainant

The Complainant gave evidence to the Court with the assistance of an Interpreter. He told the Court that on his return to work he was informed that the programme had changed and that his start time had changed to 04.30. His supervisor, Mr Grinov, took him aside for a chat and told him that if he could not start at that time he would have to quit. He told the Supervisor that he did not want to quit his role and asked to speak with a manager.

The Complainant attended a meeting with Mr Grinov and Ms Ray. Mr Grinov acted as a translator at the meeting. The Complainant told Ms Ray and Mr Grinov that he did not want to quit. He was told that he needed to resign. He asked why he had to resign but was told that he would have to quit. There was no discussion about any alternative working arrangements. He was asked to sign a form. When he signed the letter he was told by Ms Ray that he could leave the premises. He understood that he was being fired. The Complainant said that he only understood what the document said when he got home and asked a friend to translate it.

Under cross examination, the Complainant said that it was not true that he told his supervisor Mr Grinov that he wished to remain on the Covid payment.

The Complainant told the Court that he accepted that his contract of employment specified that his hours of work could vary with notice. He was dependent on others for a lift to work and could not start work at 04:30, as there was no public transport available at that time. He understood that he was being fired and was told to sign the document.

The Complainant told the Court that did not receive any notice of termination of his employment. He has not worked for the past two years since he left that role. He had applied for jobs but was not interviewed for any roles. During this time he had stayed at home to look after his children while his wife worked. He had also been sick with Covid for a period.


Position of the Respondent

The Complainant returned to work from temporary layoff on Friday 19 June 2020 and started work at 08:00. On Monday 23 June 2020 he again started his shift at 08:00. The Complainant was advised by his supervisor that the shift start time was now 04:30. On Tuesday 24 June 2020 the Complainant again commenced work at 08:00 and requested to speak with HR. Separately, management had asked the supervisor to find out why the Complainant was coming to work later than other production staff.

An informal discussion subsequently took place between the Complainant, the HR Manager, and the Supervisor, with the supervisor acting as a translator. The Complainant was asked to start work at 04:30 but he refused. The HR Manager explained to the Complainant that the earlier start time was essential as the company was trying to rebuild after the devastating impact of Covid. He was advised that his contract of employment clearly states that the “Company reserves the right to determine the hours / days you work or alternatively, to change these working hours”. He was also advised that if he was allowed to start work at a later time than other production staff, that it would cause conflict and create difficulties.

The complainant refused to start work any earlier than 08:00. He did not explain why. He did not explain that a colleague who previously gave him a lift to work no longer worked for the company, and that he had no way of getting to work earlier. Instead the Complainant asked to resign. He was advised if he wished to resign he would need to do so in writing or, alternatively, he could be provided with a standard resignation template. The Complainant opted for the resignation template, which the supervisor translated for him. He signed the document of his own free will. The Complainant left immediately without working his two-week notice period as per his contract of employment.

The Respondent submitted that the Complainant told the Supervisor that he would have preferred to remain on the Covid payment, rather than return to work.

The Respondent submits that the Complainant was a valued member of staff. His departure from the company was in no way premeditated and there was no reason to let him go. There were no alternative positions in the company that could be offered to him that would allow for a later start time. The complainant requested a resignation form instead of submitting a handwritten resignation letter.

At no point during his employment did the Complainant raise any issues about his supervisor. The Supervisor was a valued and trusted member of staff, who had acted as translator for many HR meetings and no issues were ever raised regarding the clarity or accuracy of his translating. The Complainant did not express any issues with the Supervisor translating for him. As both parties had requested the meeting there was no need for representation.

The Respondent is willing to re-employ the Complainant.


The Law

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if 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 insection 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) ofsection 7(2) of this Act.

Discussion and Findings

Dismissal is disputed in this case. There is no contention that the Complainant’s employment came to an end at a meeting on 24 June 2020, which was attended by the Complainant, his supervisor, and the HR manager. The respondent submits that the Complainant was not dismissed at that meeting and that he voluntarily resigned his employment. The Complainant submits that the Respondent took advantage of his low level of English and pressurised him to sign a resignation letter.

From the Respondent’s submission and the oral evidence given by the Complainant, it is clear to the Court that the meeting was convened at short notice and at the behest of both parties. In such circumstances, the Court does not see that there was a need on the part of the Respondent to formally notify the Complainant about the nature of the meeting or about the right to have a representative present in advance of that meeting.

What is less clear is what happened at the meeting. No minutes were taken. It is accepted that the meeting was a short one and that the supervisor acted as a translator, as both the Complainant and the supervisor are Romanian. The Court was advised that the supervisor, who was considered to be a valued and trusted employee during his employment, regularly provided such translation services during HR meetings. No issues had ever been raised about his translation skills.

In evidence, the Complainant told the Court that he clearly told the Supervisor that he did not wish to resign before he attended the meeting. He did so again at the meeting when the HR manager was in attendance. He submits that in reply he was told by the Supervisor that he would have to resign if he could not work the early shift.

It is accepted that the Complainant signed a template form that was provided to him at the meeting. The Complainant submits that he was pressurised into signing the form, which was in the English language that he did not understand. He understood that it was a dismissal form and that he was required to sign it. He said that he only fully understood what had happened when he left the premises and requested a friend to translate the document.

It is also accepted that both the Complainant and the HR Manager relied upon the supervisor for translation during the meeting. The Court did not have the benefit of hearing evidence from the supervisor, who is no longer employed by the Respondent.

The only witness testimony provided to the Court was that of the Complainant. The Court found the Complainant to be a credible witness. Given the uncontested evidence from him, the Court finds that on the balance of probabilities, the Complainant did not voluntarily resign his position at that meeting. Furthermore, the Court also take note of the fact that the meeting was conducted hastily, and the Complainant was not facilitated with any time to seek advice, or have the form translated by another party before signing it.

In all the circumstances and having regard to the evidence tendered the Court finds that the Complainant did not resign his employment on 24 June 2020. The Court finds that it was not unreasonable for the Complainant to be of the belief that he had been dismissed by the Respondent on that date. The Court is satisfied that, whether intentionally or not, the Complainant’s employment was terminated by the actions of the Respondent at the meeting on Tuesday 24 June 2020.

The Acts deem a dismissal to be unfair until the Respondent can demonstrate that it was neither substantively nor procedurally unfair.

In determining if a dismissal is an unfair dismissal, the Court has regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and the extent (if any) of the compliance with fair procedures.

S.I. 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures at paragraph 4. 6 states:

“The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

That employee grievances are fairly examined and processed;

That details of any allegations or complaints are put to the employee concerned;

That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances”.

The Court, for the reasons stated above, finds that the Complainant was unfairly dismissed by the Respondent. In all of the circumstances the Court finds that the amount of compensation which is just and equitable is €2,000. The Respondent is required to make a payment in that amount to the Complainant. The decision of the Adjudication Officer is overturned.

The Court determines that the Complainant’s complaint is well founded.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
CC	______________________
9 June 2022	Deputy Chairman