Complainant

Respondent

Parties

Dawid  Czuprynski

International Windscreens Ireland Aaa Mobile Windscreens

Representatives

  Self-Represented

Dylan Macaulay Macaulay & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00046428-001

28/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00046428-002

28/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00046428-003

28/09/2021

These claims were submitted on the 28th of September 2021 thus the cognizable 6-month period of the complaint’s dates from 29th of March 2020.

The complainant has submitted claims under Protected Disclosures Act, 2014, the Safety, Health & Welfare at Work Act, 2005 and the Unfair Dismissals Act.

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00046428-001

28/09/2021

The complainant submits that

On 7th of January 2021 yet again he tried to engage with the Managing Director of the company Mr.  H to resolve issues regarding lack of safety and harassment that resulted in him admitting that he lied about health and safety and the complainant stating that he was taking this matter further to WRC and HSA. The next day Mr. H handed him a letter stating that he was being suspended without pay for reason of covid-19. The complainant submits that he was the only one suspended and he believes that it was purely as a retaliation following his complaint to WRC and HSA. the suspension lasted until 24th of May 2021.  It is submitted that he was the only one suspended for any reason and he believes 3 employees ware confirmed to catch covid but that he was the only one to be penalized.

The respondent submits that this claim is out of time as the complainant submits that he was suspended from work in January 2021 and that this amounts to an act of penalisation following action taken by him prior to that.  

The claim states that the alleged act of penalisation took place on the 8th of January 2021 and the claim was submitted on the 28th of September 2021 over 9 months later.

Section 41 of the WRC Act provides for time limits of six months for submission of claims.

The Applicable Law:

The complainant at the hearing stated that he was placed on a covid payment in January 2021 which he claims was a retaliation for complaints made by him to the WRC and to the HSA. 

The respondent in this case submits that the within claim is out of time as the alleged act of penalisation allegedly took place on 8th of January 2021 with the within complaint being submitted to the WRC over 9 months later on 28th of September 2021. 

Section 41 of the WRC Act provides for time limits

Section 41 of the Workplace Relations Act, 2015 (the Act of 2015) provides in relevant part as follows:

41(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The complainant at the hearing was very unclear as to exactly what his complaint was, and the dates involved but stated that he would have remembered the details more clearly the previous year.  The complainant did not provide any reasonable cause which would both justify and explain why he waited until September 2021 to submit a complaint in respect of alleged penalisation in January 2021.

Accordingly in the circumstances I am satisfied that the within complaint is out of time and that I do not have jurisdiction to investigate this claim.

As the claim was submitted outside of the statutory time limits, I declare this claim to be out of time and accordingly I do not have jurisdiction to investigate the within matters.

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00046428-002

28/09/2021

The complainant submits that

On the day after he submitted a complaint to WRC (complaint submitted in January 2021) he received a "written warning" that was just handed to him and he was never asked to sign the document for the company to file a copy of it, there was no attempt to come up with a plan how to fix the issue leading to such warning and he received no previous formal or informal verbal or otherwise warnings.  Furthermore, the complainant submits that it was for a foolish reason of him not responding to a text message when the respondent was trying to contact him.  He also submits that the respondent did not follow any disciplinary policy set in the company nor was anyone else in the company ever in trouble for not responding to a text message as there are employees who are notoriously difficult to contact.    The complainant believes it was given as an intimidation tactic following him being placed on a bogus unpaid leave and also due to his complaints to WRC and HSA.

The respondent submits that this claim is out of time as the complainant submits that he received a written warning in January 2021 and that this amounts to an act of penalisation following action taken by him prior to that.  

The claim states that the alleged act of penalisation took place in January 2021 and the claim was submitted on the 28th of September 2021 over 9 months later.

Section 41 of the WRC Act provides for time limits of six months for submission of claims.

The Applicable Law:

The complainant at the hearing stated that he was handed a written warning in January 2021 which he claims was a retaliation for complaints made by him to the WRC and to the HSA. 

The respondent in this case submits that the within claim is out of time as the alleged act of penalisation allegedly took place in January 2021 with the within complaint being submitted to the WRC over 9 months later on 28th of September 2021. 

Section 41 of the WRC Act provides for time limits

Section 41 of the Workplace Relations Act, 2015 (the Act of 2015) provides in relevant part as follows:

41(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The complainant at the hearing was very unclear as to exactly what this complaint related to but stated that he would have remembered the details more clearly the previous year.  The complainant did not provide any reasonable cause which would both justify and explain why he waited until September to submit a complaint in respect of alleged penalisation in January.

Accordingly in the circumstances I am satisfied that the within complaint is out of time and that I do not have jurisdiction to investigate this claim.

As the claim was submitted outside of the statutory time limits, I declare this claim to be out of time and accordingly I do not have jurisdiction to investigate the within matters.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00046428-003

28/09/2021

The complainant submits that

Following his many complaints to WRC HSA and Employer on 22/07/2021 he was suspended with pay on a pretence of an internal investigation that was never concluded due to what he was told by the investigator Ms. B were difficulties in conducting interviews with management.  The complainant submits that he believes that this was only a legal tactic to stop any action following his WRC complaint which was stopped when during a Remote Adjudication the respondent was half an hour late and then stated that there is an ongoing internal investigation.  The complainant submits that this was meant to be concluded at the time and was still not concluded at the day of his resignation at 16/08/2021.    The complainant believes the actions of the respondent were designed to intimidate, postpone and or stop any resolution of issues thus since on many occasions he tried to resolve health and safety, harassment, unpaid layoff, and many other issues without any cooperation from the employer and has regretfully resigned from his position with the company.

The complainant has previously submitted an IR claim to the WRC regarding a matter which was being dealt with internally by the respondent.   The AO at the time did not recommend in his favour stating that the complainant had to exhaust internal procedures before referring a claim to the WRC.

The respondent assigned an external person to investigate the complainants’ grievances in July 2021 and this investigation was still ongoing when the complainant made a decision to resign his employment with the respondent in August 2021.  

The complainant resigned his employment on 16 August 2021 and submits that this is a constructive unfair dismissal.

The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as:

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

This statutory definition in turn has been elaborated upon to include two tests:

Redmond on Dismissal Law (Bloomsbury Professional 3rd Ed. 19.04):

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment, but its conduct may be nonetheless unreasonable.

In law there is a contract test and a reasonableness test.

In a wrongful dismissal action in Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.

The second test concerns the requirement to show that the behaviour of the Respondent was so unreasonable that they had no alternative but to resign.

The complainant in his claim form submits that he was suspended with pay on 22/07/2021 on what he refers to as ‘a pretence of an internal investigation that was never concluded’ and which he submits he was advised by the investigator was due to difficulties in conducting interviews with management.

The respondent advised the hearing that an external investigator was assigned in July 2021 to investigate the complainant’s grievances following a grievance lodged by the complainant on 14 July 2021.  The respondent stated that the complainant was suspended with pay from 22 July 2021 while the investigation as ongoing and the Terms of Reference for the investigation were agreed with the complainant.   The respondent advised the hearing that the investigator had met with the complainant within a week of his lodging the grievance and agreed Terms of Reference for the investigation.  The investigation had commenced on 22 July and was still ongoing when the complainant decided to resign his employment with the respondent by email dated 16th of August 2021.  

The respondent stated that it had been explained to the complainant by the investigator that there was a delay in conducting interviews with management due to individuals being on holidays but that the investigation was ongoing.   The complainant at the hearing expressed disbelief that members of management would be on holidays at the same time and that they were unavailable for interview by the investigator.

The complainant also made reference to a previous IR dispute which he had referred to the WRC where the AO had not found in his favour as the matters involved had not been dealt with internally and so it was referred back to the parties to utilise internal company procedures.

The complainant at the hearing also stated that he was promised a promotion to warehouse manager and that this promise was not fulfilled which he submits amount to a breach of contract.   The respondent advised the hearing that the complainant was employed as a warehouse operative and that’s what was stated in his contract.   The complainant agreed that this was the case but stated that he had worked in the office in March or April 2019 he advised the hearing that his memory of these events would have been better a year ago.   The complainant stated that sometime in the spring of 2021 he was promised a promotion to warehouse manager but that this never happened.

The respondent at the hearing stated that this matter also formed part of the complainant’s grievance and was part of the Terms of Reference of the investigation which commenced on 22 July 2021, and which had not concluded when the complainant decided to resign 3 weeks later.  The complainant advised the hearing that he had wanted his complaint to be investigated and dealt with by the respondent within 2 weeks and this had not happened as it was still ongoing after 3 weeks.  The respondent at the hearing stated that the external investigator had been appointed and met with the complainant within a week of his complaint being lodged and that she had agreed a list of 13 Terms of Reference with the complainant.  The respondent stated that it was not reasonable for the complainant to resign three weeks later while the investigation was still ongoing.

Having considered the totality of the evidence adduced here I am satisfied that the complainant has failed to establish that there was a fundamental breach of his contract which would meet the requirements of ‘the contract test’.  He has also failed to establish that the respondent’s behaviour was so unreasonable that it left the complainant with no alternative but to resign his position i.e., or ‘the reasonableness test’.    In addition, I note that the respondent had appointed an external investigator who was in the process of investigating his complaints when the complainant made the decision to resign his employment.

The complaint of unfair dismissal has not been made out by the Complainant; he was not unfairly dismissed rather he resigned from his employment.  Accordingly, the complaint is not well founded.

I am satisfied that the complainant was not unfairly dismissed and accordingly I declare this claim to be not well founded.