Complainant

Respondent

Parties

Vladimirs Fjodorovs

Maxela Limited

Representatives

Caoimhe Ruigrok BL instructed by  James P Evans Solicitors

Michelle Bolger ESA Consultants

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-00040250-001

05/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00040250-002

05/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040250-003

05/10/2020

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

CA-00040250-004

05/10/2020

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

CA-00040263-001

05/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00040263-002

05/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040263-003

05/10/2020

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

CA-00040263-004

05/10/2020

The complainant outlined that he was constructively dismissed from his employment and that there were contraventions of the Terms of Employment (Information) Act, the Employment Equality Act and the Payment of Wages Act. The respondent denies the claims.

The complainant outlined that at the 2019 Christmas Party, an incident arose between an associate of his and a member of management. The respondent had sought to prevent this going to An Garda Siochana and the complainant was penalised for not preventing the complaint going forward. The penalisation took the form of the complainant’s demotion, a reduction in pay and his lack of opportunity to renew his forklift licence. His hours were reduced in April 2020. The complainant resigned in July 2020

The complainant outlined that he asked to be transferred so that he did not work with a named manager. Instead, the respondent demoted him. He then worked in a general operative role and could not delegate to others. His hours were reduced on the 13th April 2020. He resigned his employment as he had been demoted.

In cross-examination, it was put to the complainant that others saw their forklift licence expire as they were also not available to attend training. The complainant replied that it was an act of bullying, and their licence was extended later in the year. The complainant accepted that he was aware he was being redeployed in 2020. He said that the respondent grievance procedure was meaningless unless you went to court.

In closing, the complainant outlined that he had been demoted and had clearly asked to be reinstated to the supervisor role. His grievances, for example that of the 29th April, were never formally dealt with and there was no point in appealing further. He was left off the training list for the forklift. The complainant has very little English so all documentation, not just the disciplinary documentation, should have been provided in Russian.

In respect of the Payment of Wages complaint, the complainant did not receive the additional cash payments from the 13th April. The contract did not reflect his position and had not been explained to him. There was a breach of section 5 and 3 of the Terms of Employment (Information) Act.

In evidence, the HR Manager outlined that he has been in the role since 2016. He was made aware of the allegation against the named manager in respect of the Christmas Party. The HR Manager was in the process of renewing contracts as there had been an increase in the minimum wage. The complainant had not raised an issue with the contract being provided in English.

The HR Manager outlined that forklift training was done on a group basis. The complainant was not present for the renewal training, and this was not done on purpose. Others also missed out. He could not recall when in 2020 the next round of training took place.

The HR Manager said that the disciplinary issue arose when the complainant used his mobile phone while driving the forklift. The disciplinary documentation was in Russian to facilitate the complainant.

In cross-examination, the HR Manager said that he had verbally explained to the complainant the changes to the 2020 contract. The complainant was not in the workplace when the most recent forklift training was carried out. It was put to the HR Manager that the complainant required the forklift licence to work as a supervisor. It was put to the HR Manager that using pre-populated disciplinary questions showed that the disciplinary process was pre-determined. The HR Manager did not accept this and said that the issues raised by the complainant were dealt with. The complainant was informed that he could return to the supervisor role if he was agreeable to work with a named manager.

In closing, the respondent submitted that the contract was not misleading, and the terms had been explained to the complainant. He had accepted the solution of moving role and he was not demoted. The complainant was observed using the mobile phone, so it was reasonable to initiate the disciplinary investigation. His pay was €13.50 per hour and there was no evidence of additional cash payments. The complainant could not assume that any grievance would be pointless. He was able to use his voice on previous occasions.

It was submitted that the payment of wages complaint was out of time and that he had not been constructively dismissed. His demand to return to the supervisor role had not been instantaneously acceded to.

The complainant submitted complaints under four statutes: the Unfair Dismissals Act, the Employment Equality Act, the Payment of Wages Act and the Terms of Employment (Information) Act. As there was both an online application and a paper application, the complaints were registered twice. They are addressed below.

CA-00040250-001

This is a complaint pursuant to the Unfair Dismissals Act. The complainant asserts that he was constructively dismissed from his employment.

Constructive dismissal – burden of proof

The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘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.’

This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so.

An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question.

Substantive finding

Taking the complainant’s case at its height, I find that he cannot meet either test of constructive dismissal. I appreciate that there were points of conflict: the complainant’s demotion/redeployment, the forklift issue and his pay. I appreciate that the complainant did not have confidence in the respondent grievance procedure. He was subject to a disciplinary process.

While there were these issues at play, I note that the complainant was raising his issues with the respondent in written correspondence. In order for the complainant to be entitled to consider himself dismissed or for it to be reasonable to hold this view, he had to put it up to the employer to address his issues. There was scope for the complainant to further raise his issues and to then assess the respondent’s response. The complainant’s resignation was premature, and the complaint of unfair dismissal does not, therefore, succeed.

CA-00040250-002

This is a complaint of discrimination on grounds of race and nationality pursuant to the Employment Equality Act.

Burden of proof

Section 85A of the Employment Equality Act and the underlying Directive require that a complainant establish facts of such significance that raise the inference or presumption of discrimination.

In line with the well-established Labour Court authorities of Mitchell v Southern Health Board [2001] ELR 201 and Valpeters v Melbury Developments [2010] ELR 64, what constitutes something of such significance to raise an inference of discrimination varies according to the relevant factual matrix in each case. If the relevant facts are within the exclusive knowledge or near-exclusive knowledge of the respondent, then the inference or presumption is quickly raised; it falls on the respondent to show that there was no breach of the principle of equal treatment. A complainant’s ‘mere assertions’ will not raise an inference of discrimination where there are relevant facts which the complainant can be expected to ascertain. It is not an onerous initial burden for a complainant to meet.

Substantive finding

Having considered the evidence and submissions, I find that the complainant has made out a prima facie case of discrimination in respect of the provision of the contract of employment and employee handbook in English. I find that this has also been established in respect of the correspondence exchanged by the parties in and around the complainant’s resignation.

This finding must be understood in the context that this was a Russian-speaking workplace. The staff are from Ukraine, Moldova, Latvia, Russia etc The disciplinary hearing proceeded on the basis of a Russian document, i.e. with the pre-populated typed questions and the handwritten answers.

The statement of terms and the correspondence were important legal documents that impacted on the complainant’s employment. Providing them to the complainant in Russian was not onerous; this was the ordinary language of the workplace. The documents provided were all in English. There is something unreal about Russian speakers speaking to each other in Russian but writing to each other in English.

I find that the complainant has raised a prima facie case of discrimination, and this was not rebutted by the respondent. I take account of the effects of discrimination. I award redress of €3,000.

CA-00040250-003

This is a complaint pursuant to the Payment of Wages Act. The complaint relates to whether the complainant was underpaid when alleged cash payments were not made to him. This was disputed by the respondent.

Having considered the evidence, I find that there is insufficient evidence to indicate that there was a contravention of the Act. It is fair to say that the evidence adduced was not clear and not sufficiently clear to warrant a finding of a contravention.

CA-00040250-004

This is a complaint pursuant to the Terms of Employment (Information) Act. The Act requires that the employee be informed of the statement of the terms of their employment as well as information regarding any changes to those terms.

The complainant outlines that he ought to have been provided with a statement in Russian. In my view, this is not a matter to address via the Terms of Employment (Information) Act but via the Employment Equality Act.

Section 3 requires important information to be relayed to the employee regarding their entitlements under the National Minimum Wage Act. This is not contained in the contract provided by the respondent. The complainant was on €13.45 per hour and his hours varied, often starting work at 4am. The situation here is not akin to Irish Water v Hall TED161 where the employee was on far more than the minimum wage. Information pertinent to the minimum wage was important for the complainant. Its omission from the statement of terms is significant.

The omission amounts to a contravention of the Terms of Employment (Information) Act, and I award compensation that is just and equitable of €2,000.

CA-00040263-001

This is a duplicate unfair dismissal claim and I formally dismiss it.

CA-00040263-002

This is a duplicate Employment Equality claim and I formally dismiss it.

CA-00040263-003

This is a duplicate Payment of Wages Act claim and I formally deem it not well-founded.

CA-00040263-004

This is a duplicate Terms of Employment (Information) Act claim and I formally deem it not well-founded.

CA-00040250-001

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

CA-00040250-002

I decide that the complainant has established a prima facie case of discrimination on grounds of race and nationality, which respondent has not dislodged, and I award compensation pursuant to the Employment Equality Act of €3,000.

CA-00040250-003

I decide that the complaint pursuant to the Payment of Wages Act is not well-founded.

CA-00040250-004

I decide that the complaint pursuant to the Terms of Employment (Information) Act is in part well-founded and the respondent shall pay to the complainant redress of €2,000.

CA-00040263-001

I dismiss this duplicate claim pursuant to the Unfair Dismissals Act.

CA-00040263-002

This is a duplicate Employment Equality claim and I formally dismiss it.

CA-00040263-003

This is a duplicate Payment of Wages Act claim and I formally deem it not well-founded.

CA-00040263-004

This is a duplicate Terms of Employment (Information) Act claim and I formally deem it not well-founded.

Language of statement of terms / Employment Equality Act