Complainant

Respondent

Anonymised Parties

A general operative

A food manufacturer

Representatives

Self-represented

Self-represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00034623-001

13/02/2020

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

CA-00034625-001

13/02/2020

The complainant worked for the respondent in the assembly of food products. She received net weekly pay of €368 and her employment ended on the 3rd February 2020. At the hearing, the respondent raised whether the complainant’s employment was excluded from the protections of the Unfair Dismissals Act, as she had less than one year’s service.

The respondent outlined that the complainant had initially been assigned to the respondent facility by an agency. This was from the 17th April 2018 to the 10th March 2019. During this time, the complainant was not its employee and there was no employment relationship. The complainant’s direct employment with the respondent commenced on the 11th March 2019. Given that the date of dismissal was the 3rd February 2020, the complainant did not have one year service to bring a complaint of unfair dismissal.

In respect of the complainant’s dismissal, the respondent outlined that it uses a clocking system to manage time and attendance. Employees are required to clock in and out for start, finish and rest periods. Pay is calculated on hours worked. It outlined that colleagues are assigned to one production line. The complainant had been assigned to line 5. The respondent could ask a staff member to tag off their line and to tag on another line to help out. This allowed the respondent to manage efficiencies.

In December 2019, colleagues of the complainant had approached their team leader regarding the complainant clocking at different times to them. The team leader picked one day to observe the complainant to ascertain the validity of the concerns. The investigation commenced on the 17th January 2020. The operations manager was appointed to investigate the matter. There were previous clocking issues, and the allegation was one of falsification. Statements were taken from all the colleagues as part of the investigation. The investigation found there was a disciplinary case to answer.

The complainant was provided with a translator for the disciplinary hearing chaired by the HR Manager. The HR Manager adjourned the meeting to glean further information. The hearing reconvened on the 29th January 2020, and the complainant was suspended with pay. The disciplinary meeting was rescheduled from the 30th January to the 3rd February 2020. The complainant attended the meeting, and the decision was made to terminate her employment. The complainant was afforded the right to appeal and given all natural justice and fair procedures.

The HR Manager outlined that the respondent had afforded the complainant every opportunity to defend her position. The complainant did not attend the disciplinary meeting of the 30th January, and this was rescheduled. The complainant also had the opportunity to appeal but did not do so. The complainant had never provided an explanation as to what happened on the 19th December 2019. The HR manager outlined that on this day, line 5 finished at 12.47 but the complainant did not clock out until 13.30. The complainant had tagged off from line 5 to go to line 3 and line 3 finished at 1pm. Team leaders must agree to a person switching lines. Here, there was no agreement for the complainant to switch lines and the statements outlined that the complainant had left the floor at 12.47. The HR Manager outlined that tagging is done through a code and a fingerprint. The falsification related to finishing work at 12.47 but being clocked in until 13.30. She outlined that one week of notice pay was paid.

In the statement of the 9th January 2019 [sic], the team leader states that she was made aware of line 5 finishing and the complainant only clocking out later. The team leader states that she observed the complainant on the 19th December 2019 and saw that she did not move to another line. The team leader verified with two named managers that the complainant was still logged in. The team leader then reported the issue.

In the minutes of the disciplinary meeting of the 24th January 2019 [sic], the complainant is recorded saying that she had a conflict with the team leader on line 3, so no longer informed her when she was changing lines. The complainant states that this team leader had seen her switch lines on previous occasions. The complainant accepts that she could not account for her whereabouts between 1pm and 1.30pm on the 19th December 2019. She stated that she may have been in the toilet, to which the employer states that this required permission of the team leader. The complainant outlined that the team leader would take unauthorized cigarette breaks. The Operations Manager refers to concerns about more than one day.

In the minutes of the second disciplinary meeting, the Operations Manager refers to having checked the CCTV and the clocking system. The complainant is confirmed to have logged onto line 3 at 12.47. The Operations Manager states that the cameras showed that the complainant was not downstairs on the factory floor until 1.18pm. The complainant is recorded as saying that she may have gone to the bathroom or the bread room after logging into line 3. The complainant states that this is in respect of 30 minutes, and she has two years of unblemished work. The complainant is suspended with pay and without prejudice.

In the letter of dismissal of the 3rd February 2020, the respondent acknowledges the complainant’s excellent attendance record and stated that she was aware of the time and attendance procedures. It states that the complainant ‘moved from’ a named agency to the respondent in March 2019, ‘having been selected by Operations Management to do so.’ It holds that the complainant deliberately falsified in order to be compensated for more hours than she had worked. It specifically related to the 19th December 2019. It refers to paying the complainant notice pay and any accrued annual leave.

In a statement submitted in advance of the adjudication, the complainant outlined that on the 19th December 2019 she had worked on line 5 until 12.50 and that this line normally finished at 13.30. She wanted to work her hours so moved to line 3, which finished at 13.00. At the later meeting, she was asked what she did between 13.00 and 13.30 and she said that she could not remember. She said that she normally washed the scales or did other work. While she could not answer where she was, she was wrongly fired without any verbal or written warning. She referred to being a good employee with no issues.

The complainant outlined that she had a ‘not good’ relationship with a named team leader. The complainant said that it was this team leader who assembled a group to testify against her.

At the hearing, the complainant outlined that she started working for the respondent on the 26th April 2018. On the 19th December 2019, she finished on line 5 at 12.47 and this line would have normally finished at 13.30. The complainant moved to line 3 to make up time and this line finished at 1pm. The complainant went on annual leave the following day and could not remember the small details. She said that she could have done other jobs in the factory until 13.30. The complainant said that she often did this on the instructions of line managers, but not the named line manager who raised the 19th December with the respondent.

The complainant outlined that she always clocked in. The clocking system was at the main doors. There were no issues in the two years of her employment, and she was not warned of any issues. The complainant said that the decision to dismiss her was unfair. This caused her to face big financial difficulties and she was very stressed. She was on medication for her heart and nerves. The complainant said that she was then stuck in Ireland because of travel restrictions imposed because of the pandemic. She looked for alternative employment and found it hard to find other work because of her lack of proficiency in English. She had not attended the meeting of the 30th January because she was given very short notice of it.

The complainant outlined that the person who raised the issue of the 19th December was against her, and this person’s statement was not proof. In a handwritten letter of the 1st February 2020, the complainant sets out concerns about the team leader’s performance in work and that the team leader told other staff on line 5 not to make sandwiches according to the instructions.

The witness outlined that he had worked for the respondent since 2011 and worked in goods-in. He attended the meetings with the complainant, and they kept raising what she was doing for the 30 minutes. He outlined that she should have been given a warning.

While there are two sets of complaints pursuant to the Unfair Dismissals Act, this case relates to one dismissal and the complaints are duplicates. Given that they were submitted on the same day, there is no prejudice in making a substantive finding on the first complaint and dismissing the second one as a duplicate.

While the respondent raised a preliminary issue of jurisdiction, the parties gave a detailed account of the issues that led to the termination of the complainant’s employment. It appears to have arisen from a falling out between the complainant and a named team leader, also from Lithuania.

While the complainant’s time at the respondent facility began on the 17th April 2018, she was initially employed by an employment agency. Her direct employment with the respondent commenced on the 11th March 2019 (per the contract signed on the 5th March 2019), meaning that, taking this date, the complainant had less than one year of service as of her dismissal on the 3rd February 2020. The complainant would be excluded from the ambit of the Unfair Dismissals Act as she has less than one year’s service (section 2). There is no suggestion that any of the automatic grounds of unfair dismissal in section 6(2) apply (trade union activity, protected disclosure, pregnancy etc). Adding statutory or contractual notice will not bring the complainant’s employment to over 12 months.

In these circumstances, the complainant’s employment with the agency cannot be counted towards her employment with the respondent. The complainant has less than one year of direct employment with the respondent and her employment is, therefore, excluded from the ambit of the Unfair Dismissals Act. The automatic grounds of dismissal in section 6(2) do not apply in this case. It follows that the complaint pursuant to the Unfair Dismissals Act does not succeed and is dismissed.

CA-00034623-001

For the reasons set out above, I dismiss the complaint pursuant to the Unfair Dismissals Act.

CA-00034625-001

For the reasons set out above, I dismiss the complaint pursuant to the Unfair Dismissals Act.

Unfair Dismissals Act / section 2 exclusion / agency