ADJ-00041429

Complainant

Respondent

Parties

Krzysztof  Pieczonka

Swanpark Ltd.

Representatives

  Self-Represented

 A HR Advisor

Act

Complainant/Dispute Reference No.

Date of Receipt

Complainant seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00052217-001

11/08/2022

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

CA-00052217-002

11/08/2022

Complainant seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00052217-004

11/08/2022

Complainant seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00052217-005

11/08/2022

Complainant seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00052217-007

11/08/2022

The Complainant was employed as a Barber from May 21st 2015 to February 23rd 2022.

He submitted five Complainants for adjudication, two related to Transfer of Undertaking issues, two relating to his terms of employment and one for constructive dismissal under the Unfair Dismissals Act.

The Complainant was initially employed by the Respondents father, Michael Breen in May 2015.

The Complainant stated that a transfer took place at an unspecified date, from his Employer, Michael Breen (trading as Savoy Barbers) to Swanpark Ltd. but prior to or in 2019.

The Complainant resigned on February 23rd 2022 listing a number of grievances.

The Complainant submitted his complaints to the WRC on August 11th 2022.

In September 2019 due to the retirement of his father, Mark Breen took over the business as Swanpark Ltd and gave the Complainant a new more detailed written contract of employment in September 2021. The Complainant in evidence alleged these written terms were a change to his original terms and refused to sign the contract in September 2021.

On September 21st 2021 the Complainant stated he and another colleague were discussing the proposed changes and that it was just a normal discussion between colleagues.

The Complainant was sent an email on September 27th about a HR Advisor coming to the Barbers premises the following day but the Complainant never saw this email as he was on a day off and was therefore unaware of the meeting.

On September 28th 2021 the Complainant stated that the HR Advisor for the Respondent turned up at the Barber premises to speak to two members of staff who allegedly were involved in a heated argument on September 21st.  The Complainant stated that the HR Advisor sat in a barber chair, said he would speak to the Complainant first, started to take notes and would not give the Complainant a business card. The Complainant sent a text message to Mr. Breen asking to reschedule the meeting and asking who the man was.The Complainant stated he asked how the meeting would proceed, that he could not understand the HR Advisor, sought a copy of the Company Handbook, asked to have an Interpreter, phoned his employer and was told to deal with the HR Advisor, then told to leave the premises and then told to come back, he asked to reschedule the meeting but was ignored., The Complainant would not engage with the HR Advisor and moved to the hallway. and then went to the car park where the Complainant called his wife to interpret. The Complainant alleged that the HR Advisor took his phone from him while they were in the car park The HR advisor then suspended the Complainant for his behaviour.

The Complainant went on sick leave from September 28th to October 26TH 2021.

On October 4th an Investigation meeting was scheduled but adjourned.

On October 27th 2021 the Complainant made a formal complaint of bullying and harassment by Mark Breen and his agents.

The Investigation meeting reconvened on October 29th and was conducted by a Workplace Investigator, Ms. AB. The meeting was attended by the HR Advisor who suspended the Complainant as notetaker and Malgorate Williams as the Complainants interpreter. The Complainant stated he asked for the specific accusations but did not get them and he recorded the meeting. The Complainant received a report of the meeting from the Notetaker on November 6th, 2021, which the Complainant alleged contained false information and some information was missing.

On the 9th of November the Complainant was asked to attend a formal disciplinary meeting scheduled for the 12th of November. He was not informed who would be in attendance at the meeting but then told it would be chaired by Ms. CD...

On the 12th of November hours before the meeting the disciplinary meeting was cancelled by text by the Owner (due to understandable and unforeseen personal circumstances).

The Complainant then received a text from Mark Breen stating he was not suspended anymore and was now rostered to work and was advised he was unsuspended as of November 15th 2021.The Complainant tried to contact the employer to arrange for a meeting and was not paid from November 13th 2021 to February 23rd  2022.The Complainant wanted a letter stating he was cleared of all accusations but did not receive one.

The Complainant considered the suspension a punishment because he raised issues regarding health and safety.

The Complainant advised he never received any written notification of his suspension.

The Complainant stated that everything that happened was a consequence of him not signing the amened contract of employment and that his name has not been cleared of the allegations and he was not supported by his Employer.

The Complainant advised the disciplinary meeting was cancelled and requested to go back to work without any completion of the investigation.

The Complainant felt threatened and unsafe going back to work as he was being accused of bullying, which he denied.

The Complainant texted the Owner and received a reply that the Owner was very stressed at that time and told the Complainant to deal with the HR Advisor.

The Complainant terminated his employment on February 23rd 2022 and has claimed constructive dismissal.

The Complainant gave evidence that the following changes were made to his contract;

A ban on the use of mobile phones at work was introduced

A change to his days off from Monday to Tuesday

And proposed changes to the following; Changes to sick pay, security issues, lay off and short time working, annual leave, location defined and an issue re medial contact by the Respondent. The Complainant advised he had an objection to moving furniture and buying stuff for the business.

The Complainant stated he demanded pay for 11 days and that he was not spoken to during this period of being asked to go back to work and his resignation. He advised he was not paid bank holidays or annual leave for 2022 to the date of his termination. These matters are not before the Adjudicator.

The Respondent submitted a statement in advance of the Hearing. It was accepted by both parties as a statement on behalf of the Respondent.  The following is a version of the statement with a small amount of unnecessary information deleted by the Adjudicator.

Start of Statement.

On 20th September 2021, Krzysztof was handed his contract by Mark Breen, the Owner, in the presence of EF, another employee, The Complainant mentioned that if he didn’t sign this contract the company would have to give him his redundancy and this was in a joking manner. The conversation of redundancy and contracts continued the next day (21/09/2021) between EF and Krzysztof. At a certain point EF expressed to Krzysztof he didn’t want to listen to what he had to say about these matters. An argument of words started after this. Michael Breen, the Owners father and who had initially hired the Complainant and run the business, entered the barbershop a few minutes after this. The level of shouting in the barbershop had started to carry over to the hair salon, where one customer was present and was able to hear the argument. 10 minutes later, Mark Breen entered to barbershop to see what was happening. At this point Krzysztof was displaying threatening and aggressive behaviour as he was losing his temper towards EF. He was slamming the partitions and countertops in a violent manner. He called EF “Two-faced” and a “Romanian Gypsy” and how he was told not to trust “Romanian Gypsies” The level of physical and verbal anger from Krzysztof was beginning to worry Michael & Mark. They asked him to calm down and lower his voice repeatedly to no avail. EF expressed his desire to leave work as he “couldn’t work with him like this”. Michael & Mark felt the best way to diffuse the situation was to let EF go home as he didn’t want him to remain in an abusive environment.  EF was not deducted any pay for the remaining hours in the day that he subsequently missed. EF left work at approximately 15:00 and Krzysztof worked the remainder of the day. Mr. Breen felt threatened by Krzysztof’s behaviour and went out of his way to avoid him for the next few days. Mr. Breen was anxious and felt intimidated by the Complainant and decided to contact a HR Advisor, Dermot Duignan to help him and he set up a meeting for the 28th September 2021.

After the incident on the 21st August Mr. Breen, engaged with the HR Advisor, Dermot Duignan to hold a conversation with EF and Krzysztof in the barbershop on the 28th September 2021. Mr. Breen had, informed both employees by email the day before that this was occurring.  When the HR Advisor arrived at 10.50, Mark Breen led him into the barbers and introduced him to the two barbers who had the row the week before. The HR Advisor said hello to them and said we are just going to have a chat. He said who would like to go first, neither opted to go first so Dermot said to Krzysztof “sure I’ll talk to yourself first”. Mr. Breen left he barbers and went to the staffroom door as he was waiting for a client’s colour to be finish. Moments later Krzysztof came back from the barbers and confronted Mr. Breen asking him “are you not my boss? Are you not my boss? Who is this man, I don’t speak to him. Could you follow me”. Mr. Breen went into the barbers where it was evident that the Complainant did not want to speak to Dermot. Mr. Breen explained Dermot is acting on his behalf and he wants to speak to you about the incident last week. Krzysztof said to Dermot: “Give me your card! Give me your card.” Krzysztof was demanding a business card from Dermot, to which Dermot responded he “did not have a card”. Krzysztof said he wanted to see a copy of his contract and see where it said this man would be speaking to him. At this point he was very aggressive in his tone and spoke to Mr. Breen in a threatening and intimating manner and said “go get my contract…go get my contract” He was also speaking to Dermot in this tone and expressing that he would not comply and wanted a translator because he didn’t understand what Dermot was saying.

On a number of times Mr. Breen tried to walk away as Dermot was acting on his behalf, but Krzysztof insisted Mr. Breen show him his contract in an aggressive and loud manner. At this stage Dermot recommended we stop the meeting as the situation was getting very concerning with Krizysztof’s body language and behaviour. We told him he should put any questions in an email and we would deal with them but the Complainant would still not accept this. Mr. Breen was starting to feel fearful of the situation, like numerous times in the past when a confrontation would happen with Krzysztof , it would become a volatile situation. Mr. Breen asked him to leave but he refused. Mr. Breen has found Kristof to have a good level of comprehension of English in the past. The Complainant continued to argue when Mr. Breen explained that Dermot was the HR advisor and dealing with the matter. Mr  Breen explained he had a duty of care to look into the incident that occurred last week between the Complainant and EF to make sure nothing like it happened again. Mr. Breen stressed to Krzysztof that this was not an investigation but a chat about the incident and to see if we could sort this out, but the Complainant continued to roar and shout at Dermot, “who are you? What are you doing here, Give me your card, give me your card!” and “I don’t have to speak to this man.” Mr. Breen was worried about the customers that were present on the premises and what they would hear plus some clients felt startled by the shouting.  Krzysztof stormed out of the barbers and then went down to Michael to quiz him also about his contract. He then started making phone calls and speaking to someone in Polish. Mark Breen  was worried for his father too at this point as Krzysztof was shouting at him also in an intimidating manner, his father is 76. EF entered the barbers and spoke to Dermot for approx. 10-15mins. Mr. Breen was attending to a client’s hair. Krzysztof proceeded to make his way around the premises. Again, Dermot advised that we could postpone any meeting as Krzysztof was not willing to comply and that he could return to work. Krzysztof again was told he could put any questions in an email to Mr. Breen and we could take it further. But he wouldn’t agree to this and stopped me from leaving, arguing that he wanted his copy of his (old) contract. He still insisted on a card from Dermot. We both asked him to leave and he refused this. I spoke to Dermot and on his advice; we agreed to issue a suspension notice to Kris, for the manner in which he behaved. He acted in a bullying and aggressive manner to myself, Michael & Dermot. I went out the back of the building and asked him to come inside he had been outside for over 10 minutes now; He was sitting in his car on his phone. We waited another 5 minutes and he still hadn’t come in. Myself and Dermot went out to his car. He got out and proceeded to push his phone at Dermot to talk to a friend. I told him I was suspending him with pay pending an investigation, he refused this. We issued the suspension again. At this point Dermot asked me to video record him as we issued the suspension. Krzysztof used his phone and spoke in Polish to someone, Dermot had to take the phone from him, and he repeated what we were trying to say to Krzysztof to the person on the end of the phone. Dermot said “He’s as you can tell been very aggressive here, very disruptive so could you please make him aware of the fact that he cannot keep running around the place getting people to do to what he wants them to do and that he is suspended now with full pay pending an investigation, he needs to leave immediately.” Krzysztof was speaking very loudly in the background, denying he was been aggressive. Krzysztof look back the phone and spoke to the person again. Shortly after this phone call ended Krzysztof left the premises with his equipment.  We have tried to mediate during this whole process but to no avail and have been met with disruption and obstruction, especially at the investigation meeting.:

Since the incident there has been malicious behaviour on Krzysztof's behalf where slanderous reviews and comments have been placed online by him and his friends. He has lied to another person regarding receiving payslips & a contract.  

We provided him with paid leave while he was on suspension plus provided holiday pay accrued (during and post covid) when requested. (End of Respondent Statement)

The Respondent advised there were not real significant changes to the Complainants contract that would penalise him.

The Respondent advised he suspended the Complainant verbally on September 28th 2021.

The Respondent stated they were conducting an investigation meeting into the events of September 21st but the Complainant was obstructive and not willing to co-operate by querying everything at the meeting.

A disciplinary meeting was scheduled for on November 12th 2021. The meeting was cancelled due to the Owners personal circumstances. The Complainant was then advised he was unsuspended.

The Respondent advised that the Complainant was rostered for November 16th 2021 and never showed up.

The Respondent denied that the Complainant had grounds for constructive dismissal.

Complaints under the Transfer of Undertaking Regulations 2003 (S.I.  No 131 of 2003.The complaints (005 and 007) were under the Transfer of Undertaking Regulations 2003 (S.I.  No 131 of 2003). .

Complainant Number 005 states “My current/new employer Transferee did not ensure that my terms and conditions transferred from my previous employer [Transferor European Communities Protection of Employees on Transfer of Undertakings Regulations 2003 lS.l.No.131 of 2013). “

Complainant Number 007 states “My current/new employer Transferee did not observe the terms and conditions transferred from my previous employer (Transferor [European Communities Protection of Employees on Transfer of undertakings Regulations 2003 [s.1. No. 131 of 2003]”

At the Hearing the Respondent accepted there was a transfer of undertaking of the Complainants employment to Swanpark Ltd.

Section 41.6 of the Workplace Relations Act 2015 states the following; The Law

Section 41(6) and (8) of the Workplace Relations Act 2015 (‘the 2015 Act’) provides 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.

The Complainant stated the transfer of undertaking took place on May 1st 2019. The Complainant submitted a signed contract between him and Swanpark Ltd dated May 21st 2019. These were the terms of employment that were in effect at the time the complaint was submitted to the WRC on August 11th 2022. The statutory time limit for submitting a claim is six months. Given the changes proposed were given to the Complainant in mid -September 2021 and by his current employer, Swanpark Ltd I find complaint is outside the statutory time frame of six months for submitting a complaint and I have no jurisdiction to issue a decision on the substantive issue.  .

I find Complaint Numbers CA-00052217-005 and 007 to be statue barred and not well founded.

Complainant under the Terms of Employment (Information) Act 1994

The complaint under the Terms of Employment (Information) Act 1994 related to the Complainant not being notified in writing of a change to his terms of employment. The Complainant set out a number of proposed changes to his terms of employment.

The Complainant stated he was working under a two page contract given to him by Michael Breen and submitted a copy date May 15th 2019 and signed by both parties. The Employer name in that contract is Swanpark Ltd. The Complainant was presented with written terms of proposed changes to his contract in mid September 2021.. The complaint was submitted to the WRC on August 11th 2022. The statutory time limit for submitting a claim is six months. Given the changes proposed were given to the Complainant in mid-September 2021 and his last actual working day was September 28th 2021, I find the complaint is outside the statutory time frame of six months for submitting a complaint as per Section 41.6 of the Workplace Relations Act 2015 and I have no jurisdiction to issue a decision on the substantive issue.

I find Complaint CA-00052217-001 to be statue barred and not well founded.

The second complaint under the Terms of Employment (Information) Act 1994 Complaint is a claim that the Complainant was penalised or threatened with penalisation for invoking or having given notice of an intention to exercise any rights under the Terms of Employment (information) Act 1994. This is in effect a duplicate complaint as the complaint under the Unfair Dismissals Act and in accordance with the rule in Henderson and Henderson (you cant litigate the same issue twice), I deem this complaint not well founded as I will deal with the substantial issue of dismissal i.e. the penalisation complained of, in my decision under the Unfair Dismissals Act.

 I find Complaint Number CA-00052217- 004 is not well founded

Complainant under the Unfair Dismissals Act 1977

Complaint Number 002 is a claim for constructive dismissal under the Unfair Dismissals Act 1977.

The Law

Section 1 of the Act defines a dismissal which is commonly termed constructive dismissal in the following manner “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”.

Section 6(1) of the Act states “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.”

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where conduct of the employer amounts to a repudiatory breach of the contract of employment an employee could be entitled to regard herself as having been dismissed. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held by the Employment Appeals Tribunal that, to meet this test “an employer must be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

Alternatively, a line of authorities has established a reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test tosubstantiate a complaint of unfair dismissal. This test asks whether the employer conducted his or heraffairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer.

Similarly, a line of authorities has established that an employee who seeks to rely upon the Act must demonstrate that they also behaved reasonably in concluding that they are entitled to terminate their employment. In particular, the authorities make clear that an employee must seek to utilise the available grievance procedures in the employment before terminating their employment or else demonstrate why such a course of action would not have been reasonable or practicable.

In Beatty v Bayside Supermarkets UD 142/1987for example, the Employment Appeals Tribunal held:-“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

An initial Hearing was held into the complaints on March 16th 2023 and following the opening statements of the parties the Hearing was adjourned to allow for the submission of all the relevant documents and transcripts. A further Hearing took place on May 29th 2023 and the Complainants evidence and replies were provided with the assistance of a Translator who took the Translator Affirmation. Substantial post Hearing correspondence from both parties took place

Evidence of the Parties;

Evidence of  Krzysztof Pieczonka.

Mr. Pieczonka stated his weekly hours were changed to 40 Hours. He said changes were imposed since the change of Manager from Michael Breen to Mark Breen which included a ban on mobile phones at work and a change in his days off from Monday to Tuesday. He confirmed there were no other changes made. He stated he was suspended without pay on September 28th 2021. He stated he objected to moving furniture and buying stuff. He stated he raised these changes but Mark Breen did not want to speak to him. He stated he was never accused of aggressive behaviour before September 21st 2021.He stated that the Disciplinary meeting was cancelled and he was not given an explanation. He stated he was not spoken to by the Owner after he was suspended. He stated he was not paid annual leave or holidays since January 2022. He advised he was not paid for 14 weeks. He advised he received his holiday and public holidays due for 2021 on December 24th 2021. He stated he was verbally suspended on September 28th 2021 and then unsuspended later. He stated he never got written notice he was suspended. He stated he considered the suspension a punishment for reports he made about Health and Safety. When asked by the Adjudicator why he did not go back to work when he was unsuspended he stated he never received any written notification of the unsuspension.

He advised he only received notice that the disciplinary meeting was cancelled and he felt that it could take place in the future and that he was requested to go back to work without any outcome of the investigation meeting. He stated he did not turn up for work for 14 weeks. He stated that after the unsuspension the Employer paid him for the suspended period. The Complainant advised he had submitted sick certs from 28/9/2021 to 25/10/2021 and after that he did not turn up for work as he wanted the Investigation meeting completed before returning to work. The Complainant stated he was disappointed the Owner was not present at the Investigation meeting only his representatives. The Complainant advised he never received any outcome of the investigation meeting.

On the meeting organised for September 28th the Complainant stated his health and safety was compromised. He stated the meeting was organised, but he had not seen the notice of the meeting. He stated he was accused of aggressive behaviour and that he was threatened with the Garda would being called. The Complainant stated he was shouted at and was required to leave without explanation and that he was told he did not comply with a work instruction.  He stated he could not understand Mr Duignan and was never offered an interpreter stated his attempted conversation with his employer was constantly interrupted by Mr. Duignan. He stated his personal space was disregarded by Mr. Duignan. He stated he was recorded without his consent and he asked for a copy of the disciplinary policy as he could not understand all the issues being put to him and asked for the accusations  in writing. He stated he was being asked to return to work with the outcome of the investigation being concluded. He contacted a friend to interpret and said the phone was grabbed out of his hand by Mr. Duignan. He advised other employees witnessed this incident. He was told through his friend he was suspended for allegedly being aggressive and the Garda would be called if he did not leave the premises. He stated he sat in his car as he feared for his personal safety. His translator texted him and he sent a text to his employer. He stated Mr. Breen and Mr. Duignan were standing by his car while this was happening. He stated the shouting of Mr. Duignan could be heard by staff and customers in the premises as the back door was open. He felt any communication should be in private and not in front of other staff and customers. The Translator told him he was suspended with pay by a message from his employer. The Complainant stated he felt provoked and disoriented.

The Complainant stated there was no prior complaint about him. He stated this was new to him. He stated all the allegations were only communicated after the incident of September  21st. He advised there were no incident, complaints or any warnings from 2015 to Sep 21st 2021. He alleged this all resulted from him refusing to sign the new contract.

He stated he only received the new proposed contact when he was on paternity leave. He advised he was not given a Handbook with any grievance or disciplinary procedure with his contract in 2019 and that the disciplinary procedure was not explained to him.

He advised he did not have an understanding of the nature of the allegations put to him. He advised he was never aggressive before and never had a conversation with Mr. Breen before about his behaviour.  He stated that he was accused of something that never happened and he did not want to return to work after the Employer denied him his rights and ignored his requests. He stated his comments on the day were not included in the transcript of the Investigation meeting.

The Complainant submitted his resignation on February 23rd 2022 citing a variety if grievances as to his employment, including how the situation regarding the events of September 21st and 28th and the Investigation meeting was handled.

It was put to the Complainant by the Respondent that Swanpark was his employer and the Complainant agreed It was. It was put to the Complainant that there were no significant changes made to his terms of employment that penalised his working rights or was contrary to legislation. The Respondent put it to the Complainant that he was suspended with pay on the date of the suspension, but then sick notes were received for a period. The Respondent advised the Complainant that the reason why the disciplinary meeting was cancelled was due to the Owners wife going into the maternity hospital. It was put to the Complainant that he was contacted on November 16th and advised he was returned to the roster, but he never turned up for work. The Respondent put it to the Complainant that he was fit for work from Dec 7th. It was put io the Complainant that his story regarding being suspended without pay was incorrect. It was put it to the Complainant that the Complainant told Mr.. Duignan to “take my phone and talk to me Interpreter”. It was  put it to the Complainant that he was highly aggressive at the time. The Complainant denied he gave the phone to Mr. Duignan and that he was aggressive.  

Evidence of Dermot Duignan.

Mr. Duignan stated all the Complainants requests for information were provided to his representative at the time, Person GH. (The Complainant advised Person GH was no longer his representative). The Witness stated that the Complainant refused to stay in the room with him and it was the Complainant who brought the issue into view of other staff. The Witness stated that the Complainant followed Mark Breen into the Saloon and was aggressive.

The Witness stated that the Complainant was invited to an investigation meeting to assess the situation and that the Complainant had treated the Investigator abysmally. The Witness stated the Respondent were only going through due process but the Complainant would not engage in the Investigation.

Under cross examination the Witness agreed they went out to the car park but stated they did not ask the Complainant to return to work while in his car. The Witness also agreed the amended contract was given to the Complainant but none of the changes were implemented and he was therefore not penalised.

It was put to Mr Duignan that he stated he was not aggressive in the conversation with the Complainant in the car park and did not invade his privacy and the Complainant questioned this. Mr. Duignan did not agree he was aggressive win the conversation and did not invade the Complainants privacy space. The Witness stated he was put on the phone by the Complainant to the Interpreter and he asked her to translate. Mr. Duignan told the Interpreter that the way the Complainant was acting was disrespectful in the workplace, that he was suspended and if he did not leave they would call the Garda.

The Complainant queried the Witness on whether he had verbally given permission to be recorded in the workplace. The Witness responded by stating they recorded because they were concerned about his actions and how violent the Complainant was. The Complainant asked about any evidence of him being aggressive in the workplace on September  21st and the Witness stated that the Complainant was banging the counter tops.

Evidence of Mark Breen

Mr Breen stated the Complainant asked for redundancy when the new contract was given to him.

The Witness stated he told the Complainant about the meeting with the HR Advisor..

The Witness stated the Complainant was suspended for his actions on the day of Sept 21st due to his interactions with him, his father and another employee. He stated he tried to moderate on the day but to no avail. The Witness stated the Complainant had made racist comments to another employee and he informed the Complainant that it should not happen again.

The Witness stated slanderous statements had been made by the Complainant against the company on Facebook and social media,

The Complainant questioned the Witness on what information had been sent to his Representative and the Witness said all information.

The Complainant queried why there was no CCTV evidence of September 21st as it had been installed that summer. The Witness replied the video does not record.

The Complainant asked why the Respondent had called the meeting with Ms. AB, an investigation meeting, when Mr. Duignan had labelled it a disciplinary meeting in his notes. Mr. Breen stated this as a misunderstanding.

The Complainant queried the attendance of Mr. Duignan as a notetaker at the investigation meeting and not as a witness, The Witness replied that the Complainant had agreed to him  being the  notetaker. The Complainant stated he asked the Investigator was it ok for Mr. Duignan to sit in on the meeting and was told they had to have they a notetaker.

Evidence of Katarzyna Kowalczyk.

Ms Kowalczyk stated she interpreted for the Complainant on September 21st during the issue in the car park. Ms. Kowalczyk asked what the Complainant was accused of and she was told the Complainant was dangerous and aggressive. She then asked Mr. Duignan did he have any proof and Mr. Duignan stated it was our experience. The Witness stated that Mr. Duignan stated that the Complainant was aggressive during the meeting with Ms AB and she did not accept this. The Witness stated the Complainant was confused at the time and the situation was chaotic and hostile. She advised she did not feel it a safe place for the Complainant and she advised him to leave by text. With regard to September 28th the Witness, who attended the investigation meeting with the Complainant, stated the Complainant could not understand what was going on.

In cross examination the Witness was asked by Mr. Duignan did the Complainant know what was going on when he was suspended and she stated he did. The Witness was asked how long the call took and she confirmed it was 1;49 minutes.

The Witness was asked how she knew the phone was taken from the Complainant and she stated she heard the Complainant” saying give me back my phone”. The Witness felt the phone was taken away from the Complainant by Mr. Duignan and that Mr. Duignan was shouting.

Findings;

The Complainant has, in his submission and evidence, set out a narrative describing behaviours and actions and refers to events between September 2021 and February 2022 to justify his complaint that the actions of the Respondent were so unreasonable that he could no longer continue in employment. He stated he did not receive any disciplinary or grievance procedure and did not know what process was being followed.

Various Witness statements were provided by the Parties, but these are not admissible as the Witnesses were not present to give there evidence and undergo cross examination.

The background to the termination of the employment relationship stems from a meeting that occurred with a work colleague in September 21st 2021 and, to the a degree, the request of the Respondent for the Complainant to sign a new contract. The Adjudicator must give weight to sworn testimony tendered on behalf of the Parties. I will now analyse the events of the various events that relate to this complaint.

The events of September 21st 2019

There is contradictory evidence about the events that unfolded between the Complainant and another employee, Mr. EF. The Complainant stated it was just a normal conversation and Mr. Breen stated that it was a heated argument in front of staff that was witnessed by Mr. Breen and his father, Michael Breen. Michael Breen or the other employee involved were not called by either party as Witnesses to collaborate their version of events and du to the vastly different version of events it is impossible to decide on which version of events was true.

The events of September 28th 2019

The Complainant was told by Mark Breen in a gmail on September 27th that “Ive been  advised that I have to act on the incident that occurred last week in the Barbershop. My HR advisor is coming just to have a chat with you both at 11am tomorrow”. The Complainant did not see this email as he was on a day off the day it was sent. The Complainant seems to have been totally unaware of who and why Mr. Duignan was at the Barber shop and proceeding to interview him about the events of September 21st. The Complainant was unaware what accusations were made against him and why the Mark Breen was not present at the meeting.

The Complainant asked for a copy of the disciplinary process (a copy was apparently not given to him with his contract in 2019). These were legitimate questions from the Complainant which went unanswered. With regard to what happened in the car park again these is significant contradictory evidence. The complainant claims are supported by the evidence of the Interpreter, but this has to be discounted as she was not present in the car park but on the phone and therefore her evidence is of little use to assessing the events of September 28th. There is no doubt the Complainant was verbally suspended with pay for his alleged behaviour, through the Complainants interpreter, on the phone by the HR Advisor.

The Investigation Meeting

On October 27th the Complainant sent a detailed letter to the Respondent seeking clarification of the allegations against him so he could get advice and prepare for the investigation meeting. The Complainant asked pertinent questions about when, where, what happened and what was said about the following;

The Complainant being disrespectful and making inappropriate comments to a fellow staff member.

The Complainant not carrying out an instruction from the owner

The Complainant being aggressive and threatening to Mark Breen

The Complainant being threatening and aggressive in the barber shop

The Complainant being threatening and aggressive towards Dermot Duignan

The Complainant being disruptive in the workplace.

The Complainant stated in that letter, that the lack of specific allegations made it impossible for him to defend himself. He also queried why the HR Advisor was acting as the notetaker when he was a person making allegations against him and expressed the view there clearly was a conflict of interest in Mr. Duignan taking the notes of the meeting. He also advised he was not given any terms of reference for the investigation and asked for these before the investigation began. He also noted not all witness statements were signed. He also stated that no disciplinary policy was attached to the letter inviting him to the investigation and he asked for it before the meeting could commence. He asked for a written reply to his letter and did not receive any written reply.

The Investigation meeting was held on October 29th 2021. The meeting was called to hear the explanation from the Complainant surrounding the events on the 21st September and the Investigator is described in the notes as “for the employer”.  The Adjudicator interprets this as the employer lead investigation and was therefore not an independent investigation as the Investigator was acting for the Employer and not to independently assess the situation. Mr. Duignan attended as a note taker. The Complainant reluctantly accepted him as the note taker but queried his skills to take notes. He also queried the Investigators background and at the commencement of the meeting asked her had she been struck off as a Solicitor and the Investigator replied yes. The Complainant told the Investigator that there were no allegations in writing, and he could not respond to unspecified allegations. The Investigator advised him he knew what happened on the day. The Investigator informed him there were statements and he had seen them and that he was there to answer any questions. The Complainant wanted to submit documents but was informed by the Investigator that she had everything she needed in front of her. The Complainant did not want to proceed with the Investigation meeting until the Investigator had read his documents. The Investigator then read the documents and the meeting resumed with the questioning of the Complainant. The Complainant initially refused to engage on the basis there were no allegations in writing. The note of the meeting then states” it was then out to him clearly, I need an answer in black or white Krzysztof, yes or no, are you going to cooperate?”  The Complainant eventually gave his version of what happened on September 21st and 28th, while maintaining his objection that there were no specific allegations and denied any wrongdoing. (in line with his submission above).

In several parts of the notes of the Investigation meeting the notes adopt a commentary tone as well as stating what was said, for example, “he then became aggressive and raised his voice at (the Investigator).” Given one of the purposes of the Investigation meeting was to get the Complainants version of what happened on September 28th it was inappropriate of the Respondent to include the Mr. Duignan as note taker at that meeting as an inference of bias could be assumed and given the complaints of the Complainant against Mr. Breen and his agents on October 27th.  

The Investigation meeting concluded and notes were issued but no report with conclusions were issued. The Complainant was not asked to agree with the investigation notes. I have listened to the audio version of the meeting and nothing stands or falls on this. The bottom line is the Complainant denied doing anything wrong, the Meeting is tainted with procedural irregularities and and no report of findings were issued. The decision to procced to a disciplinary meting was flawed due the procedural errors in the Investigation and the lack of findings report.

The events after the Investigation Meeting;

The Complainant was offered his job back and he decided not to accept this on the basis the disciplinary and/or the investigation was not completed, and his name was not cleared. If the Respondent was satisfied to take the Complainant back to work and therefore was not a behaviour risk, then it had a duty to conclude the disciplinary process with a written note to state they were not proceeding further or that there was an ongoing investigation. They did neither. The Complainant never initiated a grievance on this matter, and this may be understandable as was his evidence was he did not have sight of any grievance procedure. No evidence of a grievance procedure being given to the Complainant with his May 2029 contract was provided by the Respondent. The Respondent also made no contact with the Complainant to try resolve him coming back to work for over 14 weeks and the respondent had a duty to do this as they had initiated the suspension and the disciplinary/investigation process which was left unfinished.

On October 27th 2021 the Complainant made a formal complaint of bullying and harassment by Mark Breen and his agents. He also stated he had not been supplied with the outcome to the investigation meeting, received no suspension letter, and no Investigation report into the two investigations and no terms of reference for the two investigations. He followed up by on November 15th seeking an update and he was informed by Mark Bren on the 16th November that an investigation int his allegations would only commence when her returned work.

The Complainant was invited to a Disciplinary meeting to take place on November 12th 2022 “based on your submission and your responses to the Investigation Meeting”. The Complainant sought the outcome of the Investigation but there was no outcome report of the Investigation meeting, only notes of the meeting.  This disciplinary meeting did not take place. However, on November 24th the Owner wrote to the Complainant stating they could not invite him to an investigation meeting of his complaints as he was out of work.. The Respondent informed the Complainant that he should not communicate with him as he was stressed and the Complainant was told only to communicate with the HR Advisor. Some communications were then issued to the Complainant through a different email address and some from the HR Advisor. This despite the Complainants having submitted formal allegations against the HR Advisor. The Respondent also choose to write to the Complainant directly. The Complainant also received emails from another email with no name at the end. and this was also confusing to the Complainant as to who he was dealing with. To say the least some of the varying positions, in this regard adopted by the Respondent were confusing, at best.

The Complainant submitted his resignation on February 23rd 2022 and included a detailed set of reasons as to why he was resigning. The Respondent accepted the resignation the following day and did not enquire into the reasons why the Complainant was resigning.

The Complainants loss of earnings and efforts to seek employment an mitigate his loss

The Complainant submitted a total loss of earnings of 28107 Euros.

Some of the costs included are not permissible for consideration i.e., a 110 Euro cost for attendance at a GP, a fee for a Solicitor of 180 Euros, a fee for a HR Advisor of 1500 Euros, a transcript cost of 250 Euros and a cost for attendance by a witness at a hearing of 203 Euros. These are not loss of earnings costs and were not vouched receipts and amount to 223 Euros. His loss claim is therefore reduced by 2243 Euros to 25864 Euros.

The claim also included a loss of 1289 Euros for loss of pay while on sick leave between September 28th 2021 and October 25th 2021. It also includes a claim for not working between November 15th and when he resigned of 7,000 Euros. These costs were incurred prior to his resignation/claim for dismissal and cannot be considered as loss of earnings due to his dismissal and the Complainant had the opportunity to reduce these costs by taking up the offer of returning to work in December which he declined. These costs amount to 8289 Euros. This reduces the legitimate claim for loss of earnings to 17575 Euros.

The Complainant gave details of a few short terms jobs he held and various social welfare benefits but these payments are not included when considering loss of earnings in an unfair dismissal complaint.

The Complainant was challenged by the Respondent on the training programme he attended in another Barbers for three months without pay and the Respondent stated this was very unusual. I concur with this view but in the absence of any evidence to the contrary I accept its legitimacy.

With regard to the Complainants efforts to mitigate his loss he registered with Social Welfare and there were no postings for Barbers. His Case Officer suggested a career change, He advised that while employed he received numerous phone calls about other employment, but this dried up after he resigned and he put this down to the close knit community of Barbers Owners in County Galway being aware of his situation. He advised that he sought jobs in various companies and professions but at the time the country was just recovering from the Covid pandemic and jobs were scare. I am satisfied that in the circumstances the Complainant made basic efforts, in the environment at the time to seek alternative employment.

Overall Finding.

It is important to note there was no evidence put forward or claimed that there were any prior written warnings about the Complainants behaviour.

My overall finding is both parties contributed equally to this situation. The Respondent by implementing inadequate investigation and disciplinary procedures and the Complainant by not returning to work when he was unsuspended. It could be argued that given the inadequate procedures used by the Respondent in the investigation and disciplinary process that the Complainant is entitled to claim he is 100% vindicated but this has to be countered by his obligation to return to work when he was unsuspended. The fact that the Respondent asked to Complainant to return to work meant he may have concluded any disciplinary process, but the Respondent should have stated this to the Complainant and the Complainant was essentially at little financial loss at that time.

Having regard to the written and oral submissions of the Complainant and the submissions and evidence given at the Hearings on behalf of the Respondent, I conclude that the Complainant has established that he was unfairly constructively dismissed due the actions of the Respondent which, mainly on procedural terms, were unreasonable and therefore can be interpreted as having entitled the Complainant to terminate his employment in a manner which could be found to amount to constructive dismissal. While finding in favour of the Complainant I find that the Complainant also contributed to the situation by not returning to work when he was offered to do so. I weight the Complainants contribution to his dismissal as 40%.and I reduce the compensation possible accordingly.

I find that the Complainant was unfairly dismissed. CA-00052217-002.  

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.

I find that the Complainant was unfairly dismissed and award him compensation of 10,545 Euros.  CA-00052217-002.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the Complainants in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find Complaint Number CA-00052217-001 to be statue barred and not well founded.

I find Complaint Number CA-00052217- 004 is not well founded

I find Complaint Numbers CA-00052217-005 and 007 to be statue barred and not well founded.