Complainant

Respondent

Parties

Sergiu Nikodim

Maxela Limited

Representatives

Fearghal Fitzgerald Doyle BL

Michelle Bolger, ESA Consultants

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00036338-001

Withdrawn

25/05/2020

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

CA-00036338-002

25/05/2020

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

CA-00036338-003

25/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00036338-004

25/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00036338-005

Withdrawn

25/05/2020

The respondent’s company was established in 2005 and is engaged in wholesale food distribution.  On the date of this hearing, in the summer of 2022, 90 people were employed.  The complainant commenced working as a warehouse operative on September 28th 2018.  He worked for 40 hours a week and he was paid €10.25 per hour.  He was dismissed due to gross misconduct on April 2nd 2020.  He started a new job 14 weeks later on July 23rd 2020, earning €12.82 per hour.  In his new job, he is also paid a performance-related bonus.

When he came to work in Ireland, the complainant’s wife and daughter remained in Ukraine.  The complainant’s wife has a disability and his daughter takes care of her.  This fact is material to the complainant’s case that his dismissal was unfair.  He has a pay-as-you-go mobile phone and he tops up his credit as necessary and he also tops up his wife’s phone.  Because of his wife’s illness, the complainant claims that he was permitted to have his phone with him while he was at work.

On March 30th 2020, during his break, the complainant said that he was uploading credit to his phone.  At the same time, an unofficial work stoppage occurred in the warehouse.  The issue was about the lack of breaks on the evening shift and a demand for improved conditions.  The HR manager, Mr Ushkov, asked the complainant if he was taking a video of the protest and the complainant replied that he wasn’t, and handed his phone to Mr Ushkov for examination.  Following the protest, on March 31st, a number of employees were dismissed.  The complainant was suspended and invited to attend a disciplinary meeting on April 2nd.  He was accused of breaching company policy by “using his telephone during the course of the strike.”  On April 2nd, he received an email in which he was informed of the outcome of the disciplinary investigation:

“Our decision is to issue you with a written warning; however, we note you have a final written warning on file so you have exhausted all procedures.  The company has now reached the end of the process and your employment is terminated.”

The complainant appealed against the decision to dismiss him, writing a letter (in Russian) to Mr Ushkov.  Following a meeting on May 11th 2020, he was informed by a company director, Mr Alexi Vakiy, that the decision to dismiss him had not been changed.  For the complainant, Mr Fitzgerald Doyle argued that the sanction of dismissal was entirely disproportionate to any breach of policy engaged in by the complainant and that the procedures that ended with his dismissal were unfair.

It is the respondent’s position that the complainant “repeatedly refused to be honest with the Respondent” and that he “broke the trust necessary for a good and open working relationship.”

In breach of the Terms of Employment (Information) Act 1994, the complainant alleges that the respondent did not provide him with a contract of employment or a copy of the company’s policies in his own language.  He also claims that there were breaches of health and safety regulations regarding protective clothing and equipment.

The complainant is not proficient in written or spoken English and his contract of employment and the company’s disciplinary procedures were provided to him in English.  On behalf of the complainant, Mr Fitzgerald Doyle argued that the documents should have been provided in the complainant’s native Russian language. 

On February 1st 2020, the complainant was the subject of a disciplinary investigation related to an alleged breach of the company’s “Returned Goods Policy.”  The complainant was not given a copy of the company’s disciplinary procedure or his training records, although these documents were referred to in the letter inviting him to a disciplinary meeting on February 6th.  The complainant had no comprehension of the seriousness of his situation or the consequences of the disciplinary meeting.  On February 13th, he received, in English, confirmation that he was given a final written warning.  The complainant did not understand the document and its assertion that he had failed to follow the Returned Goods Procedure and the consequences of any further breaches.

On February 14th, the complainant wrote a letter to his employer, in Russian, contesting their decision to issue him with a final written warning.  He got no reply to this letter.  

Evidence of the Complainant

In response to questions from Mr Fitzgerald Doyle, the complainant said that he signed two contracts of employment.  Copies of these were provided at the hearing; the first is dated November 4th 2018 and the second is dated February 1st 2020.   The complainant said that he started working for the respondent on September 28th 2018 and he received a contract on November 4th.  When he was at work between 5.00am and 8.00am on November 4th, Mr Ushkov explained to him what he had to do in his job.  He said that the contents of the contract were not explained.  Mr Ushkov told him about his basic duties, but not about some tasks, such as the washing of rugs.

A copy of the respondent’s handbook was provided by the respondent at the hearing; however, the complainant said that he never saw this document.  He said that he never got a health and safety policy or a copy of the company’s grievance and disciplinary procedures.

The complainant referred to a document in Russian, which he said, he found in the warehouse.  He said it was a two-page document and that he signed it and handed it to Mr Ushkov.  He said that the document he signed in November 2018 which is included in the respondent’s book of papers is more detailed.  He agreed that he signed all the instruction manuals.

Cross-examining of the Complainant

In response to questions from Ms Bolger, the complainant said that his job was about more than simply what was in the instruction manuals.  He denied that he was instructed about how to do other jobs.

Ms Bolger said that Mr Ushkov will say that he wasn’t aware that the complainant was from Ukraine.  He replied that, on September 27th 2018, he and a person from Moldova were in the meeting room with one of the directors of the company.  The director was interested in the fact that he is from the city of Odessa because they have a business in Ukraine.  He said that one of the directors is married to a woman from Odessa.  The complainant said that Mr Ushkov was in the room when this conversation took place.  The complainant said that he spoke about holidays, and that Mr Ushkov knew that he was from Ukraine. 

On September 27th 2018, the complainant said that he worked without pay to show what he could do.

Ms Bolger said that Mr Ushkov sat down with the complainant and explained his contract to him.  The complainant replied that there was training, but that it was not detailed.  Ms Bolger said that, on November 4th 2018, between 5.00pm and 8.00pm, the complainant was informed about the details in his contact.

In response to this complaint under the Terms of Employment (Information) Act, Ms Bolger said that, on November 4th 2018, about five weeks after he commenced work with the respondent, the complainant was issued with a contract and a copy of the company handbook which sets out the conduct and behaviour expected of employees.  On February 1st 2020, he received an up-dated contract.  The complainant signed and dated both contracts which were in English.

Ms Bolger said that Mr Ushkov, who is Ukrainian, has a qualification in HR in Ireland.  Most of the respondent’s employees speak Russian, and Mr Ushkov meets all the new employees and explains the documents to them in Russian.  

Ms Bolger said that the complainant never raised any issue with Mr Ushkov concerning his contract.  The complainant claims that he never received a company handbook, but he has signed to confirm that he received a handbook.  He also signed his training records.   His contract states that he is employed as a warehouse operative but it also provides that he is required to do additional duties and to be flexible regarding other work.  The job description provided to the complainant and signed by him states that his responsibilities include: “Operate forklifts (only if Forklift Licence is available) and perform preventative maintenance.”  Ms Bolger said that the complainant does not hold a forklift licence and that he was not required to operate a forklift.

Evidence of the HR Manager, Mr Kiril Ushkov

Mr Ushkov said that the complainant was given a contract of employment when he started in his job and he was given a second contract in February 2020, when he got a pay increase.  Mr Ushkov said that employees like to have a formal statement which shows their rate of pay if they are applying for a loan or a mortgage.  He said that the only difference between the first and second contract is the rate of pay.

Mr Ushkov said that, when he meets new employees, he explains each part of the contract in Russian.  Mr Ushkov said that, out of 90 employees in the warehouse, 80 speak Russian. 

Mr Ushkov said that the complainant was recruited in September 2018 on a trial for one day.  He got a manual about how to do the picking and labelling aspect of the job from his manager.  When new employees start, Mr Ushkov said that he gathers them together and goes through all the necessary documents.

Cross-examining of Mr Ushkov

In response to questions from Mr Fitzgerald Doyle, Mr Ushkov said that, when a new employee joins the company, they work with them for a month before their employment is confirmed.  The complainant joined the company at the end of September 2018 and he was given a contract at the beginning of November.  On the first day of work, the job is explained to new employees.  If they are happy with the job, they can stay on.

Mr Fitzgerald Doyle said that the complainant and some of his colleagues are not aware of their employment rights in Ireland.  Mr Ushkov said that they know that they can speak to their managers, or to him.

In their book of documents provided at the hearing of this complaint, the respondent included the copies of the “Statement of Main Terms of Employment” issued to the complainant on November 4th 2018 and signed by him.   On February 1st 2020, when he got an increase in pay, he was given a new statement, this time with the title, “Full-time Contract of Employment.”  It is my view that both documents comply with the requirement at section 3 of the Terms of Employment (Information) Act 1994 (“the 1994 Act”) to provide an employee with a written statement of their terms and conditions of employment.

In the form he used to submit this complaint to the WRC, the complainant made no mention of the fact that the documents issued to him to confirm his terms and conditions of employment were not in his native language.  However, this was the case made by Mr Fitzgerald Doyle at the hearing, that the complainant could not understand the documents because he is not a fluent speaker of English.

The complainant said that on November 4th 2018, between 5.00am and 8.00am, Mr Ushkov explained about his terms and conditions and the duties of his job.  He said that he used Google translate to translate documents he could not understand.

While the 1994 Act does not contain a provision to issue a statement of terms and conditions in an employee’s own language, it seems to me that the objective of the Act is for that information to be accessible to an employee.  For an employee who is not fluent in English, the issuing of a statement in English does not meet the standard of accessibility required.

I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €820, equivalent to two weeks’ pay.  As this award is made by way of compensation for a breach of a statutory entitlement, it is not subject to any statutory deductions.

On his complaint form, the complainant said that there was a second disciplinary warning on his file from February 2020 and that he was dismissed on April 2nd 2020.  He said that he appealed against the February warning and that this was not addressed until May 2020.

It is the respondent’s position that no disciplinary sanctions were issued to the complainant in 2019.  

On February 6th 2020, the complainant attended a disciplinary meeting to discuss an allegation that he removed returned stock, a case of beer, from the premises and placed it outside the warehouse.  He received a final written warning.  It is the respondent’s position that the complainant did not appeal against this warning.

Following his dismissal on April 2nd 2020, the complainant claims that he handed a letter of appeal to a director of the company, Mr Vakiy, on April 3rd 2020, Mr Vakiy states that he was not handed such a letter.  There is no evidence from the CCTV footage of April 3rd of the complainant handing a letter to Mr Vakiy. 

In her submission, Mr Bolger said that, in March 2020, the complainant’s behaviour became an issue for the respondent.  He refused to work, he demanded rest breaks every hour and he looked for a pay increase.  When he was instructed by a director to return to work, he went home.

During a meeting of employees in the warehouse on March 30th 2020, the complainant was observed using his mobile phone.  As this is a breach of company procedures, the complainant was invited to a disciplinary meeting on April 2nd 2020.  The complainant was accompanied at the meeting by a colleague, Mr Jurijs Stroganovs.  Ms Bolger said that the CCTV footage clearly shows that the complainant used his phone to record the meeting.  At the disciplinary meeting, the complainant denied that he recorded the meeting, but he did not give any other explanation for using his phone.  He did not raise the fact that he was issued with a final written warning in February.

In the complaint form submitted to the WRC, by way of explanation for using his mobile phone at the meeting on March 30th, the complainant said that he was trying to put credit on his phone because he needs to be in contact with his wife who is ill and in Ukraine.  The complainant did not bring this to the attention of the respondent before he was dismissed.

On April 2nd, the complainant was dismissed.  Although he was offered the right to appeal the decision within five days to Mr Vakiy, he did not appeal.  On April 24th, the complainant contacted the HR manager asking about the outcome of his appeal.  He said that he gave a letter of appeal to a colleague, Mr Fjodorov, and addressed it to Mr Vakiy.  The respondent decided to allow the appeal, although the deadline of five days had expired.  The complainant never provided a copy of the letter he alleged he gave to Mr Fjodorov.

At the appeal hearing, the complainant accepted that he was using his mobile phone during the meeting of employees in the warehouse, but he argued that this was not a breach of company procedures.  He did not mention that his wife was ill in Ukraine or that he was putting credit on his phone.  The dismissal of the complainant was not overturned by Mr Vakiy.

In her submission, Ms Bolger reproduced the section from the company’s policy on mobile phones, where it is clearly stated that phones may only be used during breaks.

Setting out the respondent’s case that the dismissal of the complainant was not unfair, Ms Bolger referred to section 6(4)(b) of the Unfair Dismissals Act which refers to the provision that a dismissal is not unfair if it results from the conduct of the employee.  It is the respondent’s case that the complainant was dismissed because he acted in contravention of the company’s policy on mobile phone use in the workplace and that the procedure that ended with his dismissal was in compliance with Statutory Instrument 146/2000, the Code of Practice on Grievance and Disciplinary Procedures.  Ms Bolger submitted that, by repeatedly refusing to be honest with the respondent, “the complainant broke the trust necessary for a good and open working relationship.”

At the hearing, Ms Bolger said that the version of events given by the complainant is not what the respondent’s witnesses will say.  The complainant claims that he was called to a meeting by his co-workers.  She said that this meeting was, in effect, an unorganised work-stoppage that went on for 26 minutes.  Arising from his conduct, and his use of his mobile phone during this stoppage, the complainant came to the end of the disciplinary procedure. 

Evidence of the HR Manager, Mr Kiril Ushkov

Mr Ushkov described the events of March 30th 2020, when there was an unofficial work stoppage around 10.00am.  He said that he was informed by the warehouse manager that the general operatives were gathering in the warehouse and he thought they would ask for an increase in pay.  Mr Ushkov said that the director of the company, Mr Vakiy, was not on the site.  He spoke to the employees for 20 or 25 minutes and then he asked for time to speak to Mr Vakiy.  Mr Ushkov said that he noticed the complainant with his phone held up in front of him, as if he was using his camera.  He asked him if he was recording the meeting, to which he replied, “no.”

Mr Vakiy arrived on site and he listened to what the group of workers had to say.  He told them that he couldn’t give them what they were looking for.  About five employees went home, including the complainant.  He returned to work the following day.  The employee who organised the stoppage resigned.

Mr Ushkov said that the complainant attended a disciplinary meeting on April 2nd.  The purpose of the meeting was to discuss the “strike” and to ask the complainant why he was using his mobile phone.  Mr Ushkov said that the complainant was dismissed for using his mobile phone and for recording the meeting.

Cross-examining of Mr Ushkov

Mr Fitzgerald Doyle asked Mr Ushkov about the incident of February 2020 which resulted in the issuing of a final written warning to the complainant.  Mr Ushkov said that the letter inviting the complainant to the disciplinary meeting included a copy of the disciplinary procedure and training records.  He said that the company’s disciplinary procedures are included in the complainant’s contract.

The complainant attended a disciplinary meeting on February 13th 2020.  He was accompanied by Mr Stroganov.  At the meeting, he claims that he was handed a letter at the meeting, confirming that he was issued with a final written warning.  Mr Fitzgerald Doyle said that there was no actual meeting.

Mr Fitzgerald Doyle said that, on March 30th 2020, following the work stoppage, the complainant will say that he returned to work.  Mr Ushkov said that he didn’t go back to work.

Mr Ushkov said that, when the meeting of workers was almost over, he noticed that the complainant was recording the event on his phone.  He said that the CCTV footage shows the complainant holding his phone up for between five and 10 minutes.

Mr Fitzgerald Doyle said that the complainant’s evidence will be that he had his phone out to buy credit.  He said that the complainant advised senior managers that his wife was ill.  Mr Ushkov replied that he could not say if the complainant was purchasing phone credit.  He did not ask the complainant to show him his phone.

Regarding the disciplinary meeting on April 1st 2020, Mr Ushkov said that the complainant was only asked questions about using his mobile phone at the meeting and he was not sanctioned in relation to any other matter.  The letter of dismissal was sent to the complainant by email on April 2nd 2020 at 20.22.  The following day, the complainant wrote a letter in Russian to Mr Ushkov.  He said that he went back to work after the meeting in the warehouse on March 30th and that he was accused of recording the meeting.   He said that “because of this, I was fired.  I think that the resolution of management is not fair.”  He said that when he was trained, he was told by Mr Ushkov that the use of mobile phones in certain cases is okay.  During his break, he tried to put money on his mobile phone.  He had got a message from his phone provider to tell him that he needed to top up his account.  He said that he used the time during the meeting to put money on his account.  He said that he needed to be able to use his phone because his wife is disabled and she was at high-risk during Covid-19.  The complainant will say that he gave this letter to his colleague, Vladimir Fjodorov to give to a member of management.  On April 22nd, he sent an email to Mr Ushkov asking for the outcome of his appeal.  An appeal meeting was held on May 11th and, on May 14th, the decision to dismiss the complainant was upheld.

Mr Ushkov said that, in his view, the dismissal of the complainant was proportionate to the conduct.  He said that he did not consider any other sanction.

It is the complainant’s case that, as the letter inviting him to a disciplinary meeting did not refer to the unorganised work stoppage on March 30th, it must be assumed that he was standing to the side of the meeting on his break.  The complainant was a bystander at the meeting.  The company handbook states that mobile phones may be used during break times only.  The letter of dismissal refers to the complainant using his mobile phone during working hours.  There is no evidence that he was using his mobile phone to record the meeting.

Mr Fitzgerald Doyle submitted that the decision to dismiss the complainant for using his phone was disproportionate to the alleged breach of the company’s policy.  He argued that it is “perverse and incredulous” that the respondent reached a conclusion that the complainant’s actions amounted to gross misconduct.

An appeal hearing took place on May 11th, although the management claimed that they had not received the letter of appeal.  Mr Vakiy wrote to the complainant on May 14th, confirming that the decision to dismiss him was upheld.

The Legal Case that the Dismissal of the Complainant was Unfair

Mr Fitzgerald Doyle referred to the provisions of section 6 of the Unfair Dismissals Act 1977 (“the 1977 Act”) and the presumption that every dismissal is unfair unless it is justified by substantial grounds.  Section 6(6) of the 1977 Act puts the onus of proving that a dismissal is not unfair directly on the employer.  Mr Fitzgerald Doyle referred to the guidance in Employment Law in Ireland by Cox, Corbett and Ryan[1], at paragraph 21.72:

“…In order to justify a dismissal on the grounds of an employee’s conduct, it must be established by the employer that he acted reasonably in dealing with the employee at all times.  This would include carrying out a reasonable and proper investigation into the alleged behaviour and drawing a reasonable conclusion from the information unearthed by any such investigation.”

Mr Fitzgerald Doyle submitted that the employer failed to act reasonable when it failed to provide the complainant with appropriate formal induction or training regarding disciplinary procedures and failed to follow its own procedures.

Considering the requirement for fair procedures, Mr Fitzgerald Doyle referred to paragraph 21.00 of Cox, Corbett and Ryan’s publication:

“Insomuch as this right will be most keenly enforced by the courts and the tribunal in circumstances where that employee faces the ultimate sanction of dismissal, a dismissal of an employee may be deemed to be unfair in circumstances where, even though there is no substantive difficulty with the dismissal (that is, where it is one of the listed reasons as contained in the Act for which a dismissal will be deemed fair), the manner in which the decision to dismiss was reached was somehow procedurally flawed.  From an employer’s standpoint therefore, it is vital that his or her business has in place a fair set of disciplinary rules and that they be adhered to strictly.”

Mr Fitzgerald Doyle referred to several legal precedents which provide guidance regarding the entitlement of an employee to fair procedures:

A right to a fair hearing:  Mooney v An Post[2]

The rule against bias:  Cassidy v Shannon Banquets and Heritage Limited[3]

The right to an investigation that is conducted promptly and fairly:  Redmond v Ryanair Limited[4]

The right to notice of the allegations being considered:  O’Ceallaigh v An Bord Altranais[5]

The right to be represented in disciplinary hearings:  Burns v Governor of Castlerea Prison[6]

The right to present one’s case, to cross-examine witnesses and to challenge evidence:  Shortt v Royal Liver Insurance[7]

The right to a proper appeals mechanism:  O’Leary v Eagle Start Life Assurance Company of Ireland [8]

Mr Fitzgerald Doyle submitted that the respondent failed to provide the complainant with fair procedures.  He was not given notice of the allegations, meetings and possible sanctions, “thereby ambushing the complainant.”  The respondent failed to carry out a proper investigation, failed to afford the complainant to right to be represented, did not give him the right to make representations and did not give him a reason for the decision to dismiss him.  Finally, Mr Fitzgerald Doyle submitted that the respondent failed to afford the complainant the right to appeal against the decision to dismiss him. 

Citing the case of Bolger v Dublin Sport Hotel Limited[9], Mr Fitzgerald Doyle said that an employer’s failure to give any consideration to a sanction short of dismissal will in itself, result in a dismissal being unfair.  Similarly, in Fitzpatrick v Superquinn Limited[10], the Tribunal held that a disproportionate sanction will render a dismissal unfair and that “the punishment must fit the crime.”  The failure of the respondent to select a more proportionate sanction renders the dismissal of the complainant unfair.

Evidence of the Complainant, Mr Nikodim

Mr Fitzgerald Doyle asked the complainant about the final written warning he received on February 13th 2020.  The complainant said that there was no meeting before he received this letter.  Mr Fitzgerald Doyle asked the complainant if he was aware that the letter of February 3rd in which he was invited to a disciplinary meeting on February 6th, informed him that he could be issued with a final written warning.  The complainant replied that the meeting never occurred.  He said that he arrived at the meeting toom and that he was handed the letter by Mr Stroganov.

The final written warning letter refers to his explanation for putting the box of beer outside the warehouse.  Mr Fitzgerald Doyle asked the complainant how his explanation came to be referred to in the letter.  The complainant said that, before he got the letter, he was at a meeting with management and he was told that if there are returns from deliveries, they can get rid of them.  He said that he did what the management told him.  The complainant said that he asked the management why they put that explanation in the letter, but he got no answer.

Referring to the work stoppage on March 30th 2020, the complainant said that everyone gathered by the room where the warehouse manager is located.  Before the manager came out, he tried to put credit on his phone.  Mr Ushkov came out and he could see that there was “a rebellion” happening.  The complainant said that he was not one of the organisers but that he was curious.  He was holding his phone.  Mr Ushkov asked him if he had the video on and he replied, “no.”  He said that he went to Mr Ushkov’s office to show him that he wasn’t recording the meeting.  He said that he went back to work.

Mr Fitzgerald Doyle asked the complainant about the messages he received from his phone provider, Lyca, on March 30th.  At 8.34, he received a message to tell him that he needed to have enough money in his account.

On April 1st, the complainant received a letter about a disciplinary hearing.  As the letter was in English, he used Google translate to translate it.  He attended the meeting on April 2nd, and, later that day, he was informed by email that he was dismissed.  He was paid for two weeks in lieu of notice. The complainant said that he attended an appeal hearing on May 11th which lasted for about half an hour and on May 14th, he was informed that his appeal was unsuccessful.

Following his dismissal, the complainant said that he had to do a course in manual handling so that he could get another job.  He started in a new job on July 23rd 2020.

Cross-examining of the Complainant

In response to Ms Bolger, the complainant agreed that “there are cameras everywhere” in the warehouse. 

Ms Bolger spent some time dealing with the “returned goods” incident which resulted in the complainant receiving a final written warning on February 13th 2020.  She referred to the letter of February 3rd, which the complainant sent to Mr Ushkov asking for the disciplinary meeting to be delayed.  Ms Bolger put it to the complainant that he was capable of communicating with the management when he wanted to.  The meeting was postponed from February 6th and took place on February 13th.

Ms Bolger referred to the training in manual handling certificate issued to the complainant by the respondent on November 4th 2018.  He replied, “this is not training,” saying that the course lasted only three hours.

Further Questions from Mr Fitzgerald Doyle

Regarding the incident for which he received the final written warning, the complainant said that the removal of waste is the duty of a cleaner, but that, if he didn’t remove the box of returned product, he would have been fired.  He said that there was no cleaner on duty on the day he put the box of beer outside.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 – 2015 (“the Act”) provides that:

“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 6(4)(b) of the Act provides that,

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case.  It is the respondent’s case that the complainant was dismissed for using his mobile phone in the workplace on March 30th 2020.  The company’s mobile phone policy provides that:

“Mobile phones must be switched off during working hours.  They may be accessed during breaks only.  In case of emergency, please use warehouse office telephone number as the contact number.”

“It is not permitted to use music players (headphones, hand-free devices) during working hours in accordance with conditions of general health and safety.  It is not permitted to use phone or any other cameras for taking pictures or videos.  It will always be treated as Serious Misconduct and/or Gross Misconduct.”

Was it Reasonable to Dismiss the Complainant?

Considering the reasonableness or otherwise of the respondent’s decision to dismiss the complainant, I must have regard to the decision of the Circuit Court in the case of Allied Irish Bank plc v Purcell[11].  Here, Mr Justice Linnane referred to what is now conventionally known as “the British Leyland test” and the band of reasonable responses available to an employer.  The British Leyland test requires a decision-maker to ask if it was reasonably open to the employer to make the decision it made.  Regarding how the test should be viewed, Mr Justice Linnane held that,

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

In the 1982 decision of the former Employment Appeals Tribunal in Bunyan v United Dominions Trust (Ireland) Limited[12], the chairman endorsed the view that,

“…the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved.  The Tribunal therefore, does not decide the question whether or not, on the evidence before it, the employee should be dismissed.  The decision has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

At the hearing, there was no dispute about the fact that, on the morning of March 30th 2020, when there was an unofficial work stoppage in the warehouse, the complainant had his mobile phone in his hands.  He claimed that he was uploading credit because he needed to be in constant touch with his wife in Ukraine.  The photographic evidence shows the complainant holding his phone in front of his body and looking directly at the phone.  He is surrounded by other employees who appear to be listening to someone speaking.  Mr Ushkov said that the complainant held his phone in this position for between five and 10 minutes.  A person putting credit on their phone is likely to be looking down and the process would only take a minute or two.  It seems to me that it was reasonable for Mr Ushkov to find that the complainant was recording the unofficial work stoppage. 

The issue I have to decide is, was dismissal a reasonable response?  Mr Fitzgerald Doyle submitted that the respondent’s decision was disproportionate to the offence.  In his evidence, Mr Ushkov said that he did not consider a lesser sanction; however, in the email he sent to the complainant to confirm his dismissal, he noted that he had a final written warning on his file, which was issued just six weeks earlier on February 13th 2020.  It is apparent to me that, in April 2020, Mr Ushkov did in fact consider the issuing of a final written warning, but that this sanction was effectively “spent.”

One of the distinguishing features I observed at the hearing of this complaint is the evident animosity on both sides.  It was apparent that the complainant had little respect for the management and, following the telephone incident, it seems that Mr Ushkov reached the end of his tolerance of the complainant.  Dismissal is a serious matter however, and an employer is required to act reasonably before dismissing an employee, even in the face of difficult behaviour and hostility.

Conclusion

When the telephone incident occurred on March 30th 2020, the complainant had a final written warning on his file.  It is my view that this warning was justified; the complainant admitted to taking a case of beer which had been returned to the warehouse and putting it outside.  I find however, that the use of the mobile phone on March 30th was not as serious as removing the case of beer and it is my view that a sanction other than dismissal would have been more reasonable.  I have reached this conclusion despite my firm belief that the complainant was not always forthright in his evidence and that the relationship of trust that should exist between an employee and management was severely impaired.

In my conclusions on the complaint under the Terms of Employment (Information) Act, I found that the employer had a duty to provide the complainant with a copy of his terms and conditions of employment in English.  This requirement applies to an even greater degree with regard to correspondence about the disciplinary investigation and the language used at the disciplinary meeting.  It was clear from the start of the disciplinary process that the complainant’s job was at risk.  He was entitled to know the details of the case against him and to be warned in his own language of the hurdle confronting him if he was to avoid dismissal. 

There were other flaws in the disciplinary procedure that made the entire process unfair.  Mr Ushkov was a witness to the events on March 30th and in his role as the investigator of this incident, he was clearly biased when it came to reaching the decision to dismiss the complainant. 

The complainant was not provided with notes of the meeting on April 2nd and there was no follow-up to the initial disciplinary meeting.  The complainant was therefore deprived of an opportunity to challenge the allegations against him.  The complainant was dismissed on the evening of the day he attended the disciplinary meeting, leading me to conclude that little consideration was given to any alternative to dismissal.   

I have considered all the facts and the evidence presented to me on both days of the hearing.  I have reached the conclusion that the decision to dismiss the complainant was not proportionate to a finding that he used his mobile phone in breach of the company’s procedures.  I also find that the procedures that ended with his dismissal were unfair.

I have decided that this complaint is well founded.  Of the redress options available, the complainant selected compensation.  The parameters within which I am required to consider the amount of compensation to be awarded are set out at section 7 of the Unfair Dismissals Act under the heading, “redress for unfair dismissal.”  Sub-section 1 provides that any award of compensation may not exceed 104 weeks’ remuneration.

The complainant was dismissed on April 2nd 2020 and he was unemployed for 14 weeks until he started a new job on July 23rd 2020.  He said that he earns more in his new job than what he earned with the respondent.

Having concluded that the dismissal of the complainant was unfair, I find that he contributed significantly to the respondent’s decision to dismiss him.  For this reason, I direct the respondent to pay the complainant compensation of €3,000, equivalent to approximately 50% of his losses in the 14 weeks following his dismissal.  As this compensation is in the form of loss of earnings, it is subject to the normal statutory deductions.

In his submission, Mr Fitzgerald Doyle referred to section 27 of the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”), which provides a definition of penalisation:

“penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

The complainant maintains that he spoke to his employer about the unsafe practices and lack of safety equipment and training for the use of certain machines.  He claims that his complaints are complaints under the 2005 Act.  In response, the complainant claims that the respondent concocted a sham disciplinary incident and dismissed him, and that by being dismissed, he has been penalised.

Mr Fitzgerald Doyle said that the complainant is not licensed to use a fork truck.  While he accepts that he was not required to spend all his time in the cold room in the warehouse, he was required to go in and out without personal protective equipment (PPE) and gloves.  Mr Fitzgerald Doyle said that the complainant reported these issues to his line manager and to the HR manager but that nothing was done.  Mr Fitzgerald Doyle said that the complainant was “a continual agitator” regarding training and PPE and that this singled him out for over-reaction by his employer, resulting in his “sham” dismissal.

Evidence of the Complainant, Mr Nikodim

The complainant said that, in the course of his job with the respondent, he was told to operate a “reach truck.”  He said that he was aware of a case in the German company, Grundigs, which ended badly because unqualified people were using reach trucks.  He said that he spoke to the management many times about his concerns.  He said that he did not speak to Mr Ushkov about the issue, but he spoke to his direct managers, Mr Stroganov and Mr Fjodorov.  He said that his concerns were not taken seriously.

The complainant went on to describe the policy in the company where he works now.  He also spoke about his experience in Germany, when he observed an accident when a reach truck turned over.  He said that this had an influence on him.  He said, in the respondent’s company, anyone can use a reach truck.

When he had to enter the freezer, the complainant said that he was shown a jacket without sleeves and one that was too small.  He had to go in and out of the freezer constantly.

Mr Fitzgerald Doyle said that the employer will say that specific people are employed to work in the cold room and that this work attracts a higher rate of pay.  The complainant replied that certain employees loaded product into the cold room, but others had to take product out.  He said that, perhaps four or five times a day, he would see items on his scanner that had to be retrieved from the cold room.  Sometimes it could take between 30 and 50 minutes to take products out.

Mr Fitzgerald Doyle said that the company will say that the complainant was provided with a jacket and gloves to enter the cold store and that these items are available at the entrance.  The complainant did not agree.  He said that the jackets that were available were dirty and that employees had to buy their own gloves.  The complainant said that he had his own gloves. The complainant said that he raised this problem with Mr Ushkov and with the finance director, right up to the time he was dismissed.  He said that Mr Ushkov only gave jackets to people who needed them.  He said that he thinks he was dismissed because he made complaints.  He said that the finance director said that he didn’t speak properly to Mr Ushkov, with whom he said he had “an unpleasant relationship.” The finance manager asked him “why are you putting down the status of Ushkov in front of everyone?”

The complainant said that the old changing room was broken up as part of re-modelling of the warehouse.  All the clothes were left around for disposal and he took a coat and used it.  He said that it was meant to be thrown away, but he used it.  He was never provided with gloves, even for working with garbage.

Cross-examining of the Complainant

Ms Bolger challenged the complainant regarding the jacket he wore in the warehouse.  He claimed that he wore an orange-coloured jacket, but Ms Bolger said that his shift all wore yellow jackets.  Ms Bolger said that fork truck drivers wear green vests.  The complainant was not required to drive a fork truck or a reach truck and he was not provided with a green vest.  He operated a “push-pull” truck for which a license is not required.

Responding to questions from me, the complainant said that he worked in Germany for 11 months for the Grundig company.  When he lived in Ukraine, he was a head of a law department in a government job.  He worked in customer protection and in organising small businesses.  His job with the respondent was his first job in Ireland.

The complainant alleges that employees operate fork trucks without proper licenses and training and that he was not proper safety gear.  He claims that he brought these matters to the attention of a manager, Mr Robertas Klinkas.  For the respondent, Ms Bolger submitted that the complainant never raised any health and safety issues during of his employment.  The respondent provides forklift training to designated employees who are paid a higher rate of pay for this work.

The respondent uses what are referred to as “stackers” in the warehouse, sometime referred to as “standing forklifts.”  Use of these stackers does not require third party training or certification, but training is provided by the employer.  While induction training was provided for the complainant in the use of the stacker, the complainant refused to sign the confirmation of the training, because he disagreed about the necessity of a licence to operate it.  Although the complainant said that he never used a stacker, the respondent has CCTV footage to show that he used the stacker.

The complainant was employed as a warehouse operative and was not required to work in freezers.  Employees who work in the freezers are on different shifts and have additional breaks to compensate for the cold conditions.  They are provided with appropriate PPE.  If a general operative has to enter the freezers, additional PPE is left hanging outside the entrance so that it can be used for a few minutes.  This is an irregular occurrence and the complainant’s duties did not require him to access the freezers.

Evidence of the HR Manager, Mr Kiril Ushkov

Mr Uskov is responsible for health and safety in the respondent’s company.  He said that his job is to make sure that everyone has PPE and that they are trained in the use of equipment and that they use the equipment only when they are trained.

Mr Ushkov said that there have been no notifications of accidents in the company to the Health and Safety Authority.  He referred to a random inspection in March 2018 when the inspector directed that thermal gloves were to be provided for working with cold products.  These gloves are provided to employees who handle cold products.

Mr Ushkov referred to a photo of the entrance to the cold room which shoes jackets and trousers hanging on hooks.  He said that they bought plenty of gloves and that they are left for people to use.  Mr Ushkov said that a jacket is available for anyone who wants one.  He said that he doesn’t recall the complainant asking for a jacket.  Mr Ushkov provided a photo of the complainant wearing a jacket.

Ms Bolger referred to the fact that the complainant was issued with an orange jacket, because of the shift he was on.  In the picture, he is wearing a yellow jacket.

Mr Bolger said that, if the complainant had to enter the cold store to get products, it would take him about 45 seconds and not more than two minutes.  When the Health and Safety Authority’s inspector conducted an audit, he didn’t raise any issue about the freezer.

Mr Ushkov said that the picking rate for general operatives is from the ground to head heights.  At the end of each day, fork truck drivers move products to the range in which the operatives can pick from, from the top shelves to the lower shelves.

Cross-examining of Mr Ushkov

Mr Ushkov insisted that the complainant never raised an issue about health and safety, verbally or in writing. 

Mr Fitzgerald Doyle said that the complainant said that he operated a small truck and other trucks and that he raised a complaint about a lack of training.  Mr Ushkov replied that general operatives are not required to operate trucks.

Mr Fitzgerald Doyle referred to the report of the Health and Safety Authority in March 2018 which found that there was no safety statement in place.  Mr Ushkov replied that he wasn’t in the warehouse that day.

Mr Ushkov said that a person could go into the cold room several times a day without a jacket or gloves.  On the day of the Health and Safety Inspection, he said, “we had gloves, but the HSA couldn’t find them.”  He said that the gloves are behind the jackets on the hooks at the door of the cold room.  Mr Fitzgerald Doyle remarked that, “the picture is not probative.”

Mr Ushkov said that he is not aware of any personal injuries claims against the company.  He said that small things happen, minor injuries like cuts.  He said that there have been about two or three small injuries in the six years he has worked in the company.

In response to Mr Ushkov’s evidence, the complainant said that in November 2018, Mr Ushkov talked about an employee who broke a finger.  Another employee broke a finger when he was uploading granite tiles.  The complainant said that the jacket he is wearing in the photo is the one he found in the garbage.

In my findings on the complaint under the Unfair Dismissals Act above, I have concluded that the complainant was dismissed for using his mobile phone to record events in the workplace on March 30th 2020.  I find no evidence that the complainant made complaints to the management about health and safety matters and I find no relationship between the complainant’s alleged concerns about health and safety in the workplace and his dismissal.

I decide that this complaint is not well founded.

Dismissal, gross misconduct, statement of terms and conditions of employment, penalisation