Worker

Employer

Anonymised Parties

General Operative

Food Processing Provider

Representatives

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00057797-001

19/07/2023

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was however not open to members of the public to attend this hearing as this was a hearing held under the Industrial Relations Act.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 19th of July 2023.

In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, to swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant outlined his evidence.  The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was shown the Complainant’s last payslip dated the 6th of July 2023 as evidence of earnings.

The Complainant alleges that his employment was summarily ended on the 7th of July 20223 when the Complainant’s line Manager declared the Complainant to be unreliable and dismissed him.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.  In this regard, I discussed the submission made by the Respondent.

As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes) which appeared to have been articulated in the Statement/narrative, but which had not been specifically particularised by this (unrepresented) Complainant.

The Respondent did not attend. I am satisfied that the Respondent was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 27th of October 2023 - and posted to the correct registered address provided in the company search conducted by the Complainant.

The Respondent did submit a submission of sorts, by letter on the 13th of November 2023. At that time the Managing Director SD set out the Company’s position and provided some supportive documentary evidence. This submission was provided to the Complainant for comment.

I have carefully considered the facts giving rise to the dispute raised by the Complainant/Worker herein. He worked part time hours of about 20 to 25 hours per week. On average it appears that the Complainant earned about €258.00 per week.

The Complainant started working with the Respondent company in and around January the 4th 2023. I understand that the Respondent premises has a very early start consistent with the need to get freshly prepared produce to its destination at the start of each day. The Complainant was due to work two twelve-hour shifts per week. Each shift was due to start at 6am. The parties quickly recognised that the Complainant could not rely on public transport to get him to the workplace by 6am on the mornings he was due to work. The public service simply did not operate early enough to ensure that he could get there at that early hour. The Managing Director SD confirmed that

“..he was unable to attend work until 8:00am or after that time . The company however was willing to provide him with this facility which meant that he was able to work with the company.”

I am satisfied that this arrangement operated for a few months and that it had not caused an issue or certainly no issue that had called for disciplinary or other reprimand actions to be taken by the Employer. It should be noted that the complainant was paid by the hour and therefore was not getting compensated for those hours he was not on site.

Towards the end of June  2023 the Complainant was unfortunately out on sick leave and when he returned he was met with a new line Manager who appears not to have been on notice of the pattern of attendance that the complainant had been allowed to operate since his employment began. On arriving at 8am the Complainant’s new line Manager berated the Complainant for his tardiness and demanded that the complainant arrive at 6am in line with every other Employee in the plant.

With considerable difficult and expense, the Complainant arrived into work for 6am for a  full week but was late once again on the 7th of July 2023. The Complainant was met by his Line Manager who declared that the Complainant was unreliable and that his employment was being terminated. I understand that the Complainant’s last pay check (which was subsequently received) was dated the 6th of July 2023. No reference was made to payment in lieu of Notice.

The Complainant left his place of work with no further interaction. Having considered the treatment received, the Complainant wrote to Human Resources making complaint of the way in which he was treated. The Complainant described how his Line Manager had shouted at him. He noted that he had not been warned that his job was at risk and that he had been given no notice or warning.

I note that SD the Managing Director personally replied to the communication sent. SD immediately conceded that a number of serious issues had been raised and that performance and dismissal issues should not be dealt with manner outlined by the Complainant. SD requested a meeting so that he could hear the Complainant’s firsthand account “with a view to resolving the matter”.

SD did meet with the Complainant on the 11th of August 2023 (being the first date on which the Complainant was available). There can be no doubt that SD accepts that the Line Manager’s actions were not in line with the company’s policies and did not reflect how the company would want staff to be treated. In his submission SD does appear to confirm that he tried to assert that there had been ongoing issues with tardiness and time keeping. I have no evidence of these allegations and there is no evidence that the issue was raised with the Complainant between January 2023 and June 2023 when the new Line Manager came into the workplace. On balance I see this as an attempt by SD to retrospectively try and put some blame on the Complainant’s shoulders.

However, I do accept that SD did offer the Complainant an opportunity to return to work which was re-iterated in an email dated the 21st of August 2023. Most appealingly, form the Complainant’s point of view, was the fact that the Line Manager who had dismissed him had himself left the company.

Four days later, the Complainant wrote back to the Respondent company indicating that he would not be returning to the workplace. The relationship was thereby severed.

I am satisfied that the Complainant was Unfairly dismissed when he was summarily dismissed by a Line Manager who had been unaware of certain arrangements which had operated allowing the complainant arrive to the workplace two hours after most of his co-workers. After a week of silence, the Complainant wrote to the Employer expressing his dissatisfaction at the way in which he was treated. To the Respondent’s credit it recognised that the treatment was not acceptable, and the Complainant was invited to return to the workplace. 

The Complainant’s rejection of this offer came on the 24th of August 2023 – some seven weeks after the termination had happened.

I am satisfied that the Respondent offered to remedy the situation and that it was open to the Complainant to return to the workplace with what was described as a “clean slate” as of the 24th of August 2023. The Complainant was entitled to decline the offer, but I do not see how the Complainant can expect to be compensated for loss of income beyond that date.

It should be noted that in conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. The Complainant’s oral submission together with the Respondent’s written submission.