ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00038638
Parties:
| Complainant | Respondent |
Parties | Tomasz Zelazowski | Kyte Powertech Limited |
Representatives | Oscar Lyons BL instructed by Garrett Fortune Garrett J. Fortune & Co | Aaron Shearer BL instructed by Paul Brady & Co Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00049682-003 | 13/04/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00049682-004 | 13/04/2022 |
Date of Adjudication Hearing: 15/02/2023
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s) to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant worked as General Operative at the Respondent’s plant in Cavan. He was employed between September 2019 and January 2022.
The Complainant suffered a workplace accident in June 2021. He submitted a claim related to this incident and alleges that he suffered bullying and penalisation from the Respondent after this.
He resigned on the 15th of January 2022.
On the 13th of April 2022 and the 19th of April 2022, he submitted complaints to the WRC alleging that he was constructively dismissed and that he had suffered an unlawful deduction from his pay.
A hearing was held to consider the issue. The Complainant attended and was represented by Mr. Oscar Lyons BL instructed by Niall O’Reilly of Garrett J Fortune and Co. The Complainant gave evidence under affirmation.
Andrea Flanagan, HR Manager attended on behalf of the Respondent who was represented by Aaron Shearer BL instructed by Conor Brady of Paul Brady and Co. Ms Flanagan gave evidence under affirmation.
Ms Aleksandra Albrect translated the Complainant’s evidence under affirmation. |
Summary of Complainant’s Case:
The Complainant gave oral evidence and submitted a detailed written statement. He had a good working relationship with the Respondent. He succeeded in passing his probation and got on well with his supervisors. He was frequently selected for overtime. He suffered a workplace injury when a piece of metal fell on his foot on the 23rd of June 2021 and was on sick leave until the 30th of June 2021. The Respondent at first wrongly stated that the accident was his fault and then they conceded it wasn’t. With the help of his Union he sought paid sick leave but the Respondent rejected this request. Shortly thereafter he started getting reprimanded for time attendance. He had recently taken two half days, one was for a funeral and the other was due to sickness. On the 23rd of August he felt unwell and left after telling his supervisor. On the 25th of August he asked the same supervisor whether he could make up the time. His supervisor told him he couldn’t because he had a hangover. This was said in front of other workers. He felt shocked and upset and that the supervisor had treated him as if he was a child. He complained about this to Ms Flanagan who committed to investigate the matter however she instead passed the matter to the production manager who held a meeting with both the Complainant and the supervisor to consider both his complaint and his time management. The supervisor apologised and the Complainant was given a verbal warning for his time management. The Complainant appealed this decision to give him a verbal warning. This was held in September, he stated that he felt he was being bullied and that he had not be allowed to work up time he had missed due to sick leave. |
Summary of Respondent’s Case:
The Respondent strenuously denies the claims. They argue that the decision of the Complainant to resign is entirely unconnected to his grievances. That process concluded in October 2021 some three months before he resigned. The Complainant’s concerns at work were looked into and addressed. The Respondent was entirely entitled to pull him up on his time keeping and only gave him the lowest possible sanction. Ms Flanagan gave evidence on behalf of the Respondent. She is clear that the Complainant had indicated his intention to resign before the Christmas break and had indicated that it had nothing to do with his alleged grievances. She is also clear that the workers on the floor would not have known about his personal injury claim, it was only known by her as she dealt with such matters for the Respondent. Under cross examination of the Complainant Mr Shearer established that the Complainant’s family including his children had moved home to Poland in September 2021. He gave up his lease in January 2022. He waited in Ireland for a few weeks after his resignation before moving back to Poland. Mr Shearer points out that the Complainant’s payment of wages act is out of time. |
Findings and Conclusions:
CA-00049682-004 / Constructive Dismissal Section 1 of the Unfair Dismissals Act defines “dismissal” and provides for constructive dismissal. That is: 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. The Complainant alleges he was constructively dismissed due to the Respondent’s conduct, specifically bullying. This supposedly took the form of the Complainant being pulled up on absences and not being allowed to work back time he had missed. There was another incident where his supervisor was alleged to have said he was hungover. The Complainant gave evidence of this alleged conduct as well as a detailed written statement. On review of both, I do not think the alleged conduct meets the threshold set out above. That is even if I agree with the Complainant as to what occurred I do not think the actions of the Respondent would be sufficiently serious to entitle the employee to terminate the contract of employment and for that termination to be considered a dismissal. CA-00049682-003 / Pay The Complainant has sought pay for the week of the 23rd to the 30th of June 2021. This complaint was submitted on the 13th of April 2022, well outside the cognisable period for such a complaint. The Complainant was actively seeking payment of this figure within the cognisable period and was in receipt of legal advice and Union representation. I can see no reasonable cause for the delay and as such do not have jurisdiction to consider it further. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00049682-003 I find that the complaint is not well founded CA-00049682-004 I find that the complaint is not well founded |
Dated: 18th August 2023
Workplace Relations Commission Adjudication Officer: David James Murphy
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