Complainant

Respondent

Parties

Wadim Bogdan  Walorczyk

Ard Ri Aluminium Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00054338-001

03/01/2023

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

CA-00054338-002

03/01/2023

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

CA-00054338-003

03/01/2023

The complainant made claims regarding his dismissal under the Unfair Dismissal Act and the Employment Equality Acts. Section 101 (4A) of the Employment Equality Act states:

“(a) Where an employee refers—

(i) a case or claim under section 77, and

(ii) a claim for redress under the Act of 1977,

to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.

(b) In this subsection—

"Act of 1977" means the Unfair Dismissals Act 1977;

"dismissal" has the same meaning as it has in the Act of 1977;

"relevant date" means such date as may be prescribed by, or determined in accordance with, regulations made by the Minister for Jobs, Enterprise and Innovation.”

In this case the complainant did not withdraw either complaint prior to the hearing. Therefore, in accordance with section 4A above the claim for discriminatory dismissal under the Employment Equality Acts is deemed to be withdrawn. I investigated the dismissal complaint under the Unfair Dismissal Act.

The complainant also made a complaint of victimisation under the Employment Equality Act and a complaint under the Terms of Employment (Information) Act, 1994.

Summary of Respondent’s Case: the Managing Director of the respondent made submissions that the complainant sent several text messages late on a Sunday night or early on Monday mornings that he wasn’t feeling well and would not be in work. Also, his team workers would constantly complain about his lack of commitment on site. On several occasion at 3 or 4 o’clock in the afternoon he decided to sit in the van and take a rest. The MD says that on a number of occasions he explained to the complainant that he must perform to the best of his abilities.

The complainant was dismissed on 15 July 2022 for the reasons given above.

Summary of Complainant’s Case: the complainant submits that on 6 July 2022 he received a text message from the owner saying he was no longer required. He was very upset to receive this message and there had been no previous mention of any issues that would have resulted in being fired, no due process was followed. He says he was fired for taking time off to look after his ill daughter.

Findings and Conclusions: the respondent says the complainant was absent a number of times and this contributed to his dismissal. However, the evidence submitted by the MD shows no such absence after 24 January 2022, nearly six months before the complainant was dismissed.

The MD says he got a lot of complaints from the complainant’s colleagues about him and that he spoke to the complainant a number of times. The complainant denies the MD spoke to him about his absences or behaviour before July 2022.

What is clear is that there were no procedures leading up to the complainant’s dismissal. He was given no warnings and at no time given any indication that anything said to him amounted to a disciplinary matter. Ultimately, he was dismissed by text. He was not invited to a disciplinary meeting, he was not told what the complaint about his work were, he was not given the opportunity to defend himself. He was not given any of the underlying fair procedures that are an entitlement to an employee.

In all these circumstances I find the complainant was unfairly dismissed. In mitigation he gave evidence he did not work for seven months after his dismissal. Then he found part-time work. I am not satisfied the complaint made strenuous efforts to find work initially. I find it is “just and equitable in all the circumstances” to award the complainant compensation of €16,640; this being six months pay.

Summary of Complainant’s Case: the complainant submits that his colleagues did not want to work with him because he did not get a Covid vaccine. Also, he was given extra tasks because he was strong.

Summary of Respondent’s Case: the MD denied these allegations.

Findings and Conclusions: victimsation under the Employment Equality Acts is dismissal or other adverse treatment as a result of making a complaint of discrimination. The complainant provided no evidence that he made a complaint of discrimination. Therefore, I find this complaint fails.

Summary of Complainant’s Case: the complainant submits that he was never issued with his terms of employment.

Summary of Respondent’s Case: the respondent submits that the complainant’s contract was in the office for him to sign.

Findings and Conclusions: the complainant says he was unaware his contract was waiting for his signature in the office. I therefore find the complainant did not receive written terms of employment as required by the legislation. I find the complaint is well founded and I award redress of four week’s pay: €2,560.

Unfair Dismissal: For the reasons given above I find that the complaint is well founded. I find it is “just and equitable in all the circumstances” to award the complainant compensation of €16,640; this being six months pay.

Employment Equality Acts - Victimisation: for the reasons given I find that the complainant was not victimised.

Terms of Employment: for the reasons given above I find the complaint is well founded and I award redress of four week’s pay: €2,560.

Unfair dismissal no procedures