UDD2342

Appeal of Adjudication Officer Decision No's: ADJ-00033970 (CA-00044799-003)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 2 February 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 2 November 2023.The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Mr Keith Troy (the Complainant) against Adjudication Officer’s Decision ADJ-00033970 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim against his previous employer Doyle Shipping Group (the Respondent) that he was unfairly dismissed. The Adjudication Officer held that the Complainant does not have the requisite 12 months service nor has he demonstrated  that he comes within the exclusion outlined in the Act, therefore he does not come with in the protection of the Acts.

Background

The Complainant commenced employment with the Respondent in traffic management on 28th January 2021. His employment was terminated by the Respondent on the 14th  April 2021, and he was paid one weeks’ notice. It was accepted by both parties that the Complainant did not have the requisite 12 months service to come within the scope of the Act.

 Mr Keenan on behalf of the Complainant submitted that they were relying on the exceptions set out at section 6(2)(a) of the Act in that his dismissal arose from his Trade Union Activities. The Respondent denied that the Complainant carried out any Trade Union activities or that they were aware of same.

 Summary of Complainant’s submission and evidence.

Mr Keenan representative for the Complainant submitted that his dismissal was directly related to his union membership, the fact that he raised issues on behalf of his work colleagues with the Respondent, and that he distributed Union membership application forms. The Complainant handed in a letter on headed paper from a Mr Anthony Mc Intyre Independent Workers Union (IWU) dated 25th October 2023 which stated that the Complainant was acting in the capacity of a Trade Union Official “during the time he was employed by Doyle’s Shipping Group, a period covering January to April 2021” in support of that assertion. Mr Keenan submitted that in the course of the Complainant’s employment the Respondent had never raised any issues with the Complainant in respect of his work performance.

 The Complainant in his sworn evidence to the Court stated he held dual membership of SIPTU and the IWU and had done so for a number of years. It was his evidence that he was paying Union subscriptions at the relevant time but wasn’t on a deduction at source arrangement with the Respondent in terms of his union subscription. He stated that he was in arrears in respect of his SIPTU subscription.   In his evidence to the Court, the Complainant stated that an issue arose in respect of payment for St Patricks day and that he had contacted a SIPTU Official who had confirmed what he had known, that they were entitled to payment for same. He then wrote to the Respondent on the 26th March 2021 enquiring as to whether or not he would be paid as he had worked St Patricks day. By return email the Respondent advised that there was an error in the original contract and confirmed that he would be paid. Sometime after he spoke to the SIPTU Official, towards the end of March 2021, he contacted the IWU and requested application forms.  He was emailed a link to the application forms, and he then printed off about 25 and distributed them to other workers.

 The Complainant stated that on the 14th April 2021 at 13.18 he sent an email to the Respondent advising that he was not prepared to accept proposed changes to his contract and looking for a meeting. By return email he was asked to be more specific about what the issues were. Later that day he received the letter stating that his contract had been terminated and that he would be paid one weeks’ notice. He is aware that two other people sent the same email at the same time as he did, and they were not dismissed.

 Under cross examination from Ms O’Connell, representative for the Respondent, the Complainant confirmed that he had not contacted the IWU until mid to late March 2021 and that he had not informed the Respondent that he was a Trade Union representative, nor had he sought permission to carry out Trade Union activities during working hours.

 In terms of the Trade Union activities that he carried out during working hours it was his evidence this involved making calls to the Union, but he was not acting under the instruction of a Trade Union at the time. He also confirmed that he had printed off application forms and handed them to another member of staff who had circulated them. He confirmed that he had not circulated the forms on the Respondent’s premises. He confirmed that he had met the other Worker at a nearby petrol station and given him the forms there. He was not aware of how many if any Workers had joined the Union as this was just before he was dismissed.

 Ms O Connell on behalf of the Respondent opened correspondence from the Complainant to the Respondent dated 26th March 2021 in respect of the St Patricks day issue and 14th April in respect of his contract and noted that the Complainant had only raised the issues on his own behalf and not on behalf of a group of Workers and or Trade Union members. The Complainant accepted that the letter only indicated that he was raising it on his own behalf. The Complainant accepted that his Union activities consisted of making phone calls to the Union for information and application forms and handing applications forms to another member of staff.

 Finally, under cross examination the Complainant accepted that when he raised a grievance in respect of his dismissal by letter of 10th May 2021, he had not raised the issue of being dismissed for Trade Union activities, nor had he identified it when he had submitted his complaint to the WRC.

 In response to a clarification from the Court, the Complainant stated he did not know when he came to the realisation that his dismissal was wholly or mainly arising from his Trade Union activities.

In response to a question from Mr Keenan under redirect the Complainant stated that he did not distribute the application forms during his breaks that he did it during working time, but he did not have the Respondent’s permission nor was he acting on behalf of a Trade Union. He confirmed that he did not tell the Respondent that he was a Shop Steward, but he felt that his line manager should have known.

 Mr Keenan submitted that the Complainant had made no secret of his Trade Union activities and that it was inconceivable that the Respondent were not aware of them. He submitted that it was not credible that it was a pure coincidence that he sent a letter in at eighteen minutes past one raising issues about the contract and later the same day he received notice that his employment was being terminated.

Summary of Respondent’s submission and evidence

The Complainant was employed as a Traffic Management Operator (TMO). The Complainant had contacted the Respondent looking for work and was given the opportunity to interview for a TMO post. He was hired on a fixed term contract which contained a probationary clause and was due to expire on 31st December 2021. From about February 2021 there were issues with the Complainant spreading rumours and failing to follow instructions from his supervisor.

Mr Conor Augusta an Operations Manager for the Respondent in his evidence to the Court stated he was one of the two people who jointly made the decision to end the Complainant’s probation as they did not believe he was a good fit for the organisation. Mr Augusta stated that he was not aware of whether the Complainant was a union member or not and that the Complainant had never come to him in terms of raising issues on behalf of his work colleagues.

 It was his evidence that the Complainant would continue to raise issues for example as to why only one person was allowed in the canteen at a time even though it was explained to him numerous times. He was also offered the opportunity to work in another area where there were more staff and bigger canteen facilities and more than one member of staff could go a break, but he declined the offer of a transfer. He raised an issue in respect of his supervisor which was investigated but there were no other witnesses. Mr August met with the Complainant and his supervisor, and they both agreed to put the issue behind them. In the course of that process the Complainant was asked if he wanted to be assigned to a different supervisor, but he declined to change.

 He continued to constantly challenge his supervisors’ instructions and would not follow same. The issue in respect of St Patrick’s day was first raised in early March by a number of staff.  He has no recollection of the Complainant raising it with him, he raised the issue with HR who resolved the issue. Mr August said he was aware that the Respondent dealt with SIPTU through HR and that he had previously facilitated Union meetings. 

Under cross examination from Mr Keenan Mr Augusta stated that it was his understanding that Workers during the probationary period are not entitled to fair procedure in terms of the termination of their employment. He confirmed that the Respondent recognised SIPTU Trade Union. He also confirmed that he had not engaged in any performance measurement or improvement procedures with the Complainant. He stated that on the morning of 14th April 2021, he had a discussion with his colleague Ms Mc Alinden about a number of staff matters and they decided that the Complainant was not a good fit, and the decision was taken to terminate his probation. In the course of the day, he dictated the dismissal letter to a member of the HR who sent it out.  It was his evidence that he was not aware that the Complainant had sent an email to HR on that day, raising issues about his contract.

 Ms O’ Connell submitted that the Complainant has not met the burden of proof required to show that this dismissal arose wholly or mainly from being a member of a Trade Union or carrying out Trade Union activities.  There is no evidence that he raised any issues in respect of the collective with the Respondent or the Union. He never raised the issue of being sacked for Trade Union activities. In his letter of 10th May 2021 he states “ It is very evident that I was sacked because I raised an issue with management in regard to the conduct of a supervisor”, this letter was written nearly a month after he was dismissed and makes no mention of Trade Union involvement .

 There is no evidence that the Respondent or the Operations Managers who made the decision to dismiss, knew he was acting on behalf of a Trade Union. His own sworn evidence was that he was carrying out Trade Union activities during working hours but not on the instruction of a Union and his evidence was the activities consisted of ringing the Trade Union.

The Relevant Law

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

(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.

(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee's membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts 1941 and 1971 [as amended by the Industrial Relations Act 1990], where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage

Issue for the Court

 The Complainant has to establish that he was dismissed wholly or mainly because of his Trade Union membership and or activities.

Discussion.

 The Complainant’s evidence in respect of his Trade Union activities was that he made calls to the Union, distributed membership forms and that he was not acting under the instruction of a Union when carrying out these activities. He confirmed that the membership forms were in respect of the IWU who he first contacted sometime mid to late March 2021.This sworn evidence completely contradicts and undermines the letter dated 25th October 2023 submitted by the Complainant from the IWU which asserted that he was a Trade Union Official for them for the period January to April 2021. On that basis the Court finds that it cannot attach any credence to that letter.

 The Complainant accepted that his correspondence with the Respondent were solely in respect of himself and not on behalf of a collective which would be the normal trademark of a Trade Union Official. The Court also notes that in his correspondence to the Respondent of 10th May 2021 he attributes his dismissal to another factor unrelated to Trade Union activities.

 The Court determines that based on the submissions and oral evidence of the Complainant he has failed to establish that his dismissal arose wholly or mainly from his Trade Union membership and or activities.

 Determination

 The Complainant has failed to establish that his dismissal arose wholly or mainly from his Trade Union membership and or Trade Union activities.

The appeal fails. The Decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
SOC	______________________
17/11/23	Deputy Chairman