Complainant

Respondent

Parties

Dainis  Jirgens

C&D Foods Limited

Complainant

Respondent

Anonymised Parties

Representatives

Ms. Ekaterina Koneva

Ms. Judy McNamara, IBEC and then, Mr. Alastair Purdy, Alastair Purdy & Co. Solicitors

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-00026300-001

14/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00026300-003

14/02/2019

The Complainant commenced employment with the Respondent on 30th January 2017. At all relevant times the Complainant was engaged as an “ALU Service Operator”. The Complainant was a full-time, permanent employee, in receipt of an average weekly payment of €542.97. The Complainant’s contract of employment was terminated by the Respondent on 29th January 2019.

On 14th February 2019, the Complainant referred the present complaints to the Commission. Herein, he alleged that his dismissal was both substantively and procedurally unfair. In denying this allegation, the Respondent submitted that the wrong doing alleged against the Complainant constituted gross misconduct and that the procedure utilized to effect the same respected the Complainant natural and contractual rights.

A hearing was initially convened in relation to this matter on 6th January 2020. Given the extent of evidence called by both parties, the matter did finalise on this date and was adjourned thereafter.  A further hearing date was convened in relation to the same for 30th March 2020. Unfortunately, this hearing fell foul of the restrictions arising from the Covid-19 pandemic and was subsequently adjourned. By subsequent correspondence, the Complainant submitted that they did not believe that the present matter was appropriate for hearing by way of the remote platform and requested a face-to-face meeting to resolve the matter. A case management conference was convened in relation to the same on 6th May 2021, by way of the remote platform. Herein, the Complainant confirmed that he wished for the matter to be heard by way of a face-to-face hearing. During this hearing it was agreed that the present Adjudicator would retain charge of the proceedings. It was further agreed that the matter would commence anew, to allow all relevant evidence to be given under oath or affirmation and be opened to cross examination. The Complainant also undertook to clarify some of the issue arising in the submissions thereafter. Following a series of adjournments, and a change in representation on the part of the Respondent, the matter was relisted for substantive hearing on 28th February 2023. Again, the matter did not finalise on this date and was adjourned for completion. In an effort to finalise these long running proceedings, the matter was listed for two consecutive days of hearing, falling on 12th & 13th June 2023, and was completed in this session.

The Complainant gave evidence in support of his own complaints. In addition to the same, the Complainant called a former colleague to give evidence in support of part of his complaint. In defense, the Respondent called a production manager, a warehouse manager and an operations manager to give evidence. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side. Both parties also issued extensive written submissions in advance of the hearing.

During the case management conference, it was agreed that the second complaint listed was not relevant to the matters and hand and was not pursued. This matter was heard in parallel to that bearing file reference ADJ-00023305, and this decision should be read in conjunction with the same.

In circumstances whereby the Respondent accepted the fact and dismissal, and the consequent burden of proof imposed by the Act, they presented their evidence prior to the Complainant’s.

The Complainant commenced employment with the Respondent on 30th January 2017. At all relevant times the Complainant was engaged as a “service operator”.

On 26th June 2018, the Complainant submitted a letter of complaint in respect of the conduct of his then line manager. In this correspondence he alleged that his line manager was verbally abusive and disrespectful towards him. The Complainant also accused his then line manager of displaying hostility against the Complainant on the grounds of his race. Finally, the Complainant accused other members of management of acting in tandem with his line manager and permitting the allegedly abusive behaviour to continue.

Given the gravity of the allegations raised by the Complainant, the Respondent immediately commenced a formal investigation in accordance with the relevant internal procedures. As part of this investigation, the Complainant, many of his colleagues and all relevant managers were interviewed.  During this process, the allegations raised by the Complainant were denied by the line manager in question. In addition to the same, no other member of staff confirmed the Complainant’s version of events, or outlined any adverse treatment by the managers implicated. This position was confirmed by a colleague of the Complainant’s, who was identified by him as a witness to the adverse behaviour and who, he confirmed, remained on friendly terms with him.

As a consequence of the foregoing, the investigation found that the allegations raised by the Complainant were unfounded and unsubstantiated. In addition to the same, the report made the following recommendations; that all staff be retrained on dignity at work practices, that the Complainant be considered for re-location as requested and that the Complainant be considered for disciplinary sanction for “possible malicious claims”. The Complainant was provided with a full copy of the report and advised that the report had been passed to management for their review.

Following said review, the Warehouse Manager for the Respondent invited the Complainant to attend a disciplinary meeting for 12th September 2018. During this meeting, the manger put it to the Complainant that the complaints against his former line mangers were extremely serious and potentially damaging. He further outlined that the Complainant provided no evidence in respect of the same and that the one potential witness he identified disputed his version of events. By response, the Complainant stated that he could not account for the other person’s statement but assumed that they must not have been entirely truthful in their recollection.

Following a period of deliberation in respect of the same, the Warehouse Manager issued the sanction of final written warning to the Complainant. This sanction was imposed as it had been determined that the initial complaints raised by the Complainant were malicious in nature. The correspondence outlined that while a malicious complaint may be considered gross misconduct by virtue of the company handbook, the sanction of final written warning was imposed. This correspondence also confirmed that the Complainant was to be relocated in accordance with his earlier requests. While it was accepted that the Complainant issued an appeal of this decision, due to an administrative error this appeal was not pursued.

Following the Complainant’s relocation, no further issues were experience for a period of time. However, on 18th January 2019, the Complainant was observed chewing gum, a practice which is strictly forbidden by the Respondent. When asked to remove the gum in question, the Complainant replied that he “didn’t care” and had to be asked again to remove the gum.

On that same date, the Complainant was asked to complete a routine training module. Despite competing many such modules in the past, the Complainant refused to engage with this particular session, citing an inability to read or understand English. This proved frustrating for the Respondent, as the Complainant had completed numerous similar training sessions previously without raising any issue as to his comprehension of English.

As a consequence of the foregoing, the Complainant was invited to a further disciplinary meeting, scheduled for 28th January 2019, with the topic of discussion be “attitude towards QA”. During the meeting the allegations were put to the Complainant, to which he replied that he was stressed at the time and looking for a new job. The following the day, the Complainant was invited to a meeting whereby he was informed that as he was already in receipt of a final written warning, the Respondent had no choice but to terminate the Complainant’s contract of employment. While the Respondent accepted that the initial correspondence did not allow for an appeal of the sanction, this was rectified thereafter, with no appeal received in due course.

In evidence the Production Manager, being the person that conducted the investigation into the initial allegations raised by the Complainant, outlined the process adopted by him in this regard. He stated that allegations as received were extremely serious and required formal investigation under the Respondent’s dignity at work policy. The witness stated that he complied with each of the procedural steps in this process. In particular, the witness stated that he interviewed every person on the floor and the members of management implicated by the Complainant. He stated that following 19 separate interviews, no evidence corroborating the Complainant’s version of events was discovered. In such circumstances she submitted that his finding, that the Complainant’s allegations were not upheld, was reasonable in the circumstances. The witness further confirmed that the Complainant stated that he would retract the complaint in circumstances whereby he was moved to another shift. In answer to a question posed by the Adjudicator, the witness confirmed that this statement in respect of the allegation malicious complaint was inserted by him. When asked as to his rationale for the same, the witness stated that the absence of corroborating evidence led him to the conclusion that the complaint may be malicious. In addition to the same, the witness stated that it was for the disciplinary process to make a final determination in relation to the same.

In evidence a Warehouse Manager, confirmed that he was the person that imposed the initial sanction on the employee. He stated that he received the file from a colleague to investigate whether an investigation under the Respondent’s disciplinary policy would be appropriate. He stated that reviewing the file, and in particular the investigation outcome, he was struck by the lack of evidence in support of the Complainants, despite the amount of persons being interviewed as part of the process. He was further concerned by the fact that the person identified as a witness by the Complainant did not corroborate his version of events, but instead stated that no such inappropriate behaviour occurred. Finally, the witness stated that he was concerned by the fact that the Complainant was willing to drop the complaint if he was offered a relocation elsewhere in the facility. He stated that he called a meeting to discuss these matters with the Complainant. Following the same, the witness concluded that the original complaint was malicious in nature. In so finding, the witness repeated that, despite an exhaustive investigation, no evidence was uncovered confirming the Complainant’s version of events. He stated that he imposed as final written waring as it was the Complainant’s first offence, and dismissal was too severe a sanction in the circumstances.

In answer to a question posed in cross-examination, the witness confirmed that the definition of malice he used for the purposes of his investigation was as outline in his notes – that of “something said (that is) harmful and damaging”. In this respect it was put to the witness that in order to prove malice, the investigator must also demonstrate an intent on the part of the Complainant. When asked how he determined such intent, the witness statement that no evidence was uncovered as part of the investigation. In addition to the foregoing, it was put to the witness that the allegations against the Complainant was never formally put to him, with the letter of invitation simply referring to the “formal letter of complaint…”. By response, the witness stated that the Complainant would have been well aware of the subject of the meetings from the correspondence and previous meetings. The witness confirmed that he did not receive the letter of appeal but stated that he would not ordinarily do so in any event.

Finally, the senior production manager confirmed that he was the person that made the decision to dismiss the Complainant. He stated that in circumstances whereby the Complainant’s employment was subject to a final written warning, and further misconduct occurred, that he was left with no choice but to dismiss the Complainant. In answer to a question posed in cross-examination, the witness confirmed that the invitation to the initial meeting did not particularise the allegations against the Complainant but simply referred to “attitude towards QA” as the subject of conversation. In addition to the foregoing, the witness confirmed a section of the minutes whereby he stated that the next sanction is termination or suspension without pay, with the implication that the decision had already been made at that stage of proceedings. The witness confirmed that at the following meeting, the Complainant was informed that his employment was to be terminated, with no further input received from the Complainant in this regard. Finally, the witness accepted that the initial letter allowed for no appeal of the sanction but stated that this was subsequently rectified. In this regard, the witness accepted that this was rectified following the referral of the present set of complaints.

In evidence, the Complainant stated that he initially enjoyed his role working with the Respondent. Towards the beginning of 2018 the Complainant began to experience bullying and harassment at the hands of his then line manager. Following a number of informal complaints, this adverse behaviour continued. On 27th June 2018, following certification for workplace stress by his GP, the Complainant elected to issue a formal complaint regarding his supervisor’s behaviour.

Following the referral of this complaint, the Respondent interviewed the Complainant and a number of his colleagues. Unfortunately, the Complainant’s colleagues did not verify his version of events and his allegations were determined to be not well-founded. While the Complainant found this outcome distressing of itself, he was caused further distress when the investigator stated that he should be considered for disciplinary sanction for issuing a malicious complaint.

Thereafter, the Complainant attended a disciplinary meeting, and despite protesting his innocence regarding the malicious element of his complaint, the sanction of final written warning was imposed on him. As the Complainant fundamentally disagreed with this outcome, he elected to appeal the same in accordance with the Respondent own internal procedures. In his regard, the Complainant outlined that the investigation and disciplinary element of the process were handled by the same person, that he was not made aware of the allegations against him and that he was not provided with a copy of the disciplinary procedure during the process. While a substantial written submission was lodged with the Respondent, no response was received and the matter was essentially ignored.

Despite this poor treatment at the hands of management, the Complainant endeavoured to put these matters behind him and continue with his work. However, on 19th January 2019, the Complainant was unable to complete a training questionnaire as his level of written English was not up to the required standard. While the Complainant accepted that a person was available to translate the form, this person refused to help the Complainant as she was busy. Later that day, the Complainant forgot to remove chewing gum on his return to the production floor. When this was pointed out to him, he immediately removed the chewing gum and placed the same in the bin. Ten days later he was invited to an investigation meeting for an undisclosed reason. During this meeting, the Complainant was asked about these incidents and provided a truthful account of his position in relation to the same. The next day the Complainant attended a meeting whereby he was issued with a letter terminating his employment and was escorted from the premises. As his dismissal correspondence did not allow for an appeal of the sanction he referred the present set of complaints to the Commission. Regarding this second process, the Complainant submitted that the investigation and disciplinary were again handled by the same person, that he was not provided with the details of the allegations in advance of the hearing and that he was not provided with all evidence to be used during the procedure.

Regarding his losses, the Complainant stated that he found it difficult to secure work. In evidence the Complainant stated that his poor English made a job search difficult, as did the restrictions arising from the Covid-19 pandemic, which were in place at the time.  Nonetheless, the Complainant submitted that he commenced an English language course and secured work with a charitable organisation some months following his dismissal. In this regard, the Complainant submitted that he suffered a substantial and ongoing loss of earnings and had accrued a significant loss of earnings by the date of the hearing.

In answer to a question posed in cross examination, the Complainant accepted that he stated that he was willing to drop his formal complaint on the basis that he was transferred. He stated that he made this request in an effort to be move from the source of the adverse treatment, and denied that he contrived the entire complaint in an effort to facilitate a move to another area. In answer to a further question posed by in cross examination, the Complainant accepted that he had no documentation following up his appeal but stated that it was the Respondent’s duty to facilitate the same. The Complainant accepted that a person was available to translate the training module in question but stated that this person was did not assist him at the relevant time. The Complainant further accepted that he completed numerous such training modules throughout his employment. Finally, it was put to the Complainant that he interviewed for the role in English, that he completed the everyday duties of his role in English, that he was frequently observed conversing with colleagues in English and that each of the managers present gave evidence that the Complainant accepted instructions in English. On foot of the same, it was put to the Complainant that his standard of spoken and written English was much higher that he had declared and that his difficulties in this regard were exaggerated for the purposes of supporting the present complaints. By response, the Complainant stated that during his employment with the Respondent his English was poor, but that he could understand conversational English and certain routine instructions. Regarding his losses, it was put to the Complainant that he had not demonstrated sufficient evidence of mitigation of his losses, particularly in circumstances whereby an acute labour shortage occurred at the time he was supposedly looking for a employment. By response, the Complainant stated that he tried his best and was anxious to find alternative employment at the relevant time.

The Complainant called one witness who gave brief evidence regarding the Respondent’s alleged failure to provide translators for training.

The present case involves an allegation by the Complainant that his dismissal was procedurally and substantively unfair. In this regard, he argued that the imposition of an earlier written warning was unfair and should not have occurred. In addition to the same, he submitted that the disciplinary process that resulted in his dismissal was fundamentally unfair. Finally, he submitted that the subject matter of both processes should not have resulted in any disciplinary sanction, let alone his dismissal. In denying these allegations, the Respondent submitted that their processes broadly respected the Complainant’s natural and contractual rights. They further submitted that the wrong doing established warranted the dismissal of the Complainant.

In this regard, Section 6(1) of the Unfair Dismissals Acts provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose 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) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) of the Unfair Dismissals Act provides that,

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had:

a) “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

b) to the extent (if any) of the compliance or failure to comply…with the procedure…or with the provisions of any code of practice….”.

The matter of Noritake (Irl) Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

·       “Did the company believe that the employee misconducted himself as alleged?

·       If so, did the company have reasonable grounds to sustain that belief?

·       If so, was the penalty of dismissal proportionate to the alleged misconduct?”

Regarding the present case, the rationale for dismissal referred, at least in part, to a prior final written warning received by the Complainant. As the dismissal occurred as a progression from this earlier sanction, it will fall to the Respondent to demonstrate the fairness of that process and outcome.

In this regard, I note that genesis of the issues was a formal complaint of bullying and harassment raised by the Complainant. Once this complaint had been received by the Respondent, I note that they activated their internal procedures and investigated the matter thoroughly and promptly. In this regard it is noted that the investigatior spoke with all relevant parties and collected all other relevant material. Following a review of the same, the Respondent came to the conclusion that no evidence existed to support the Complainant’s allegations, and his complaint was deemed to be not well-founded. Having reviewed this investigation it is apparent that this is a reasonable finding on the part of the Respondent. In particular, it is noted that the witness identified by the Complainant as being a direct observer of the adverse behaviour did not corroborate the Complainant’s version of events. This coupled with the absolute denial on the part of management, left the investigator in a position whereby he could not find in favour of the Complainant, a position that was reflected in the report as issued. While this position is reasonable, the additional finding by the investigator that the Complainant should be referred for potential disciplinary sanction is more problematic and created significant difficulties for the Complainant thereafter.

Following the conclusion of this investigation, the Respondent engaged in a disciplinary process that resulted in the Complainant being issued with a final written warning for issuing a malicious complaint. From the outset, numerous procedural issues arise in relation to the procedure adopted in this regard. Firstly, it is common case that the same person chaired both the investigation and disciplinary meetings. While the Respondent has suggested that the investigation under the dignity at work policy acted as the investigation under the disciplinary policy, a fundamental difference arises in relation to the same. The purpose of the prior investigation was to determine whether the Complainant’s allegations were to be upheld, with the purpose of the subsequent investigation being to establish the existence of malice or other on the part of the Complainant. Such an investigation would have to examine matters not in consideration during the initial process, such as the intent of the Complainant, and the Respondent’s failure in this regard substantially undermines the disciplinary process. In addition to the foregoing, I note that the allegations against the Complainant were not particularised with any precision. In this regard, the subject of the meeting was said to be “formal letter of complaint”, without any refence to the allegations that would form the basis for the imposition of the sanction. Finally, the Respondent’s failure to convene an appeal on receipt of a substantial letter of appeal from the Complainant renders the process further unfair. Having regard to the foregoing, I find that this initial disciplinary process was both substantively and procedurally unfair. As a consequence of the same, I find that the Respondent could not reasonably rely on the warning issued as a consequence of the same in the subsequent disciplinary process.

Regarding the second disciplinary process, I note that many of the mistakes of the initial process were repeated. Again, the allegations against the Complainant were not set out in any detail, the investigation and disciplinary were conducted by the same person and the contractual right to appeal the outcome was not facilitated. In addition to the foregoing, I note the letter of dismissal refers to the chair of the process discussing the matter with a senior manager prior to making the decision. Aside from the fact that it is inappropriate for two managers to issue a disciplinary sanction in tandem, the Complainant had no opportunity to present their case to this person or had no idea as to their rationale for dismissing them. Regarding the actual substance of the dismissal, it is not at all clear that the same warranted any form of disciplinary sanction, let alone the ultimate sanction of dismissal.  In this regard it is common case that the subject matter of the dismissal related to two separate incidents; a failure to engage in training when requested and chewing gum on the production floor. Regarding the first point, the Complainant’s rationale for not completing the training was understandable and the issue relatively easily resolved. In addition to the same, it is unclear as to why the Complaint was not asked to complete the questionnaire on a later date or during the next training session. Regarding the incident with the chewing gum, the Complainant was a long-standing employee at this point with no prior recorded incidents of this nature. In such circumstances it is unclear why this issue was deemed to constate a disciplinary matter at all, rather than be the subject of a correction from the relevant line manager.

Statutory Instrument No. 146/2000, commonly referred to as the “Code of Practice on Grievance and Disciplinary Procedures”, sets out a basic procedure which a Respondent should follow prior to dismissing an employee. These include; putting the allegations to the Complainant in writing in advance of a hearing, allowing the Complainant the opportunity to properly defend himself at the hearing, permitting the appropriate right of representation and allowing an internal appeal of any determination. In addition to the foregoing, I note the Respondent’s own disciplinary procedures expressly state many of the rights listed above. In particular, under the heading “Objectives of the Procedure”, the policy states that,

“Before the start of any stage of the procedure an employee will be told of the nature of the complaint against them”.

An employee’s right to such procedural fairness was recently confirmed by the Supreme Court in the matter of McKelvey v Iarnród Éireann / Irish Rail [2019] IESC 79. Here, Charleton J. made the following comments relating to the conduct of a disciplinary process:

“Section 5(b) of the Unfair Dismissals Act 1993 introduced an entitlement to the Workplace Relations Commission to look at procedure and as to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” and “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure” agreed for dismissal…Thus an employee “must be given the reasons for [any] proposed dismissal, and an adequate opportunity of making defence to the allegations made against him…”

In the matter of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, the High Court held that,

"the authorities ... make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee's employment and the circumstances surrounding the disciplinary action…The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result”.

Regarding the procedural deficiencies evident in both disciplinary processes undertaken by the Complainant, it is clear that the same served to imperil the Complainant’s right to a fair hearing. By failing to properly articulate the precise nature of the allegations that led to the imposition of both sanctions, the Complainant found himself in a position whereby he could not adequately defend the same. In addition to the same, it is apparent that the Complainant’s contractual and legal entitlement to an internal appeal was not facilitated, or outright ignored, during these procedures.

Having regard to the totality of the evidence presented, I find that the dismissal of the Complainant was both substantially and procedurally unfair. As consequences of the same, the Complainant’s application succeeds, and his complaint is deemed to be well-founded.

CA-00026300-001 Complaint under the Unfair Dismissals Act

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. In evidence, the Complainant submitted had difficulty finding employment due to the ongoing restrictions arising from the Covid-19 pandemic. Notwithstanding the same, the Complainant appended numerous applications for roles within his area for which he was apparently unsuccessful. Some months following his dismissal the Complainant took up employment with a charitable enterprise under a community scheme. The Complainant also accepted that he commenced an educational course during the period he was looking for employment but submitted that the same did not interfere with his job search. Having regard to the foregoing, I find that the Complainant did take efforts to mitigate his losses. Notwithstanding the same, the fact remains that a chronic labour shortage existed during the period the Complainant spent as a job seeker and it is reasonable to believe, as suggested by the Respondent, that an active job seeker should experience little difficulty in securing alternative employment during this period.

Having regard to the totality of evidence presented, particularly in relation to mitigation, I award the Complainant the sum of €9,411.48 in compensation.

CA-00026300-003 Complaint under the Equal Status Acts

This matter was not pursued by the Complainant and consequently is deemed to be not well-founded.

Progression, Disciplinary, Malice, Malicious, Dignity at Work