ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044231
Parties:
| Complainant | Respondent |
Parties | Bruno Batista | Dc Farm Machinery Ltd |
Representatives | The complainant was self-represented, but Laura Doherty attended as a support to the Complainant | Thomas Ryan (Peninsula), representative Derek Clarke (MD of company) Gillian Clarke (DAY 1) Brendan Brady (DAY 2) in place of Gillian Clarke |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00054538-001 | 17/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00054538-002 | 17/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00054538-003 | 17/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00054538-004 | 17/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00054538-005 | 17/01/2023 |
Date of Adjudication Hearing: 17/10/2023
Workplace Relations Commission Adjudication Officer: Caroline Reidy
Procedure:
In accordance with Section 7 of the Terms of Employment (Information) Act, 1994, Section 8 of the Unfair Dismissals Acts, 1977, Section 77 of the Employment Equality Act, 1998 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021 and the parties agreed to proceed in the knowledge that decisions issuing from the WRC would disclose their identities as the parties would be named.
I gave the parties an opportunity to be heard and to present evidence relevant to the complaint. Oral evidence under affirmation was presented by both the complainant and the respondent. The parties were offered the opportunity to cross examine on the evidence submitted. The hearing was held over two separate days.
The representative for the Company, Thomas Ryan, Peninsula confirmed the correct company name to be DC Farm Machinery Ltd and they agreed for me to update same on the claim form.
The Company, DC Farm Machinery Ltd stated they accept the dismissal occurred and accept the Complainant didn’t get his contract within the legislative timeframe but deny all other claims.
The Respondent, DC Farm Machinery Ltd (hereinafter referred to as “the Respondent”) and Bruno Batista (hereinafter referred to as the “Claimant”) commenced work as a general operative on the 7 May 2019.
Background:
The Respondent stated the Claimant was dismissed from his employment on the 8 December 2022 and was given 2 weeks’ notice. The Claimant lodged the following claims to the WRC on the 17 January 2023. CA-00054538-001: Complaint for adjudication pursuant to Section 7 of the Terms of Employment (Information) Act, 1994
This claim was accepted by the Company as the contact of employment was not given in time to the Complainant under the legislation’s requirements. CA-00054538-002: Complaintfor adjudication pursuant to Section 8 of the Unfair Dismissals Act, 1977
CA-00054538-003: Complaint for adjudication pursuant to Section 77 of the Employment Equality Act, 1998. The Complainant confirmed the discrimination dismissal claim element of this claim is withdrawn but the discrimination based on race still stands to be heard.
CA-00054538-004: Complaint for adjudication pursuant to Section 7 of the Terms of Employment (Information) Act, 1994. This is already addressed in Claim 1.
CA-00054538-005: Complaint for adjudication pursuant to Section 7 of the Terms of Employment (Information) Act, 1994. This claim was addressed in claim 1.
Accordingly, as Claim 001; 004 and 005 all relate to the Terms of Employment Claim so I will combine them in my decision.
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Summary of Complainant’s Case:
An Interpreter on behalf of the WRC was present to interpret for the Complainant. She took an affirmation also. The Complainant, Mr Bruno Batista confirmed he could understand me and the other parties but would raise his hand if the Interpreter was required by him, we proceeded on that basis. The following were the Complainants claims and he gave this evidence. CA-00054538-001: The Complainant, Mr Batista stated he did not receive his terms of employment within 6 months of starting the job or informed of probation. He stated on 26 August 2019 he asked Derek Clarke (boss) for a contract to which he replied that he doesn’t give contracts. He stated he told Mr Clarke it is a legal requirement and he then communicated that he would speak to someone first and will then let me know. He stated he emailed the company secretary, Ms Clarke on the 15 October 2019 communicating from previous discussion that he requested a written copy of his terms of employment. Mr Batista stated the next correspondence from Ms Clarke in relation to the email, wasn’t received until 9 December 2019, nearly two months later. He stated Ms Clarke communicated we are currently in the process of drafting contracts for all staff from our HR Consultant and you will receive them in the coming weeks. Mr Batista stated, Ms Clarke was also drafting a contract for another colleague who had been an employee with the company for approximately 2 years. CA-00054538-002: The Complainant, Mr Batista stated that regularly, Derek Clarke (his boss) would give him the wrong parts. He stated he would use his own initiative to source the correct ones on the computer system (he stated he has pictures of these wrong parts on his phone). He stated as a result, he would constantly be accused of costing the company money and giving the company a bad reputation. He stated jobs he did not complete by the end of his work day or due to call outs being finished by unqualified personnel. The Complainant stated on 7th December, Derek Clarke called him from Germany. He stated they talked about a specific piece of work. Mr Batista stated on 8 December 2022, Derek Clarke called him into the office telling him that he was costing him money. Mr Batista stated it was at this point he informed him that he wasn’t going to keep paying him for his mistakes and that he was costing him and the company money and he informed Mr Batista that he was giving him two weeks’ notice. CA-00054538-003: The Complainant, Mr Batista stated he was getting paid General Operative rates and being taken advantage of by not paying him as a mechanic. He stated when Mr Clarke wanted to speak with him about his concerns, he would not give him advance notice, just on the day. He stated that he was discriminated due to his race as Derek Clarke took advantage of the fact that English was not his first language and therefore was able to have the upper hand by putting him on the spot. Mr Batista stated he also did this on the day he dismissed him. The Complainant stated in relation to training he had 3 hours and 30 mins training in 3 years and 7 months. He stated he was excluded from all the other training courses which his colleagues had attended and he gave examples of these courses. The Complainant stated he felt victimised. He stated Derek Clarke told him to go home at 6pm when he refused to work Saturdays. He stated he questioned why he wanted him to go home as his other colleagues remained at work. He stated Derek Clarke intentionally left him out of opportunities like the Germany trip, and treated other members of their team preferably. The Complainant, Mr Batista stated he felt bullied. He stated two of his work colleagues stopped talking to him and he was unaware of the reason for this. He stated they used one colleague as a go between to get information to him which could lead to distorted communication in work and uncomfortableness in his everyday working environment. The Complainant stated he felt was harassed. Mr Batista stated Derek Clarke was calling him to the office repeatedly and continuously saying that he was costing him money and the ‘me and you don’t get on’. He stated he said he didn’t understand and asked if he could explain. Mr Batista stated Derek Clarke ignored this and kept repeating what he had said previously. He stated he was constantly being brought into the office and spoken threateningly regarding his job. He stated on 31 August 2022, he made a note that he had been called into the office 12 to 13 times. He stated by his calculation he had been called into the office every second week at least, which, as far as he could tell he was the only one regularly being called into the office. CA-00054538-004: The Complainant, Mr Batista stated he did not receive the full name of the employer, the place of work, the job title, the rate or method of calculating your pay, and the ‘pay reference period’, what the employer reasonably expects the normal length of your working day and week and the duration and conditions relating to the probation period (if there even was one), any terms or conditions relating to hours or work, including overtime. He stated he did not receive any of this until he asked for his contract on 26 August 2019. He stated it took a further four months from requesting a contract with all the above information get any correspondence about it. CA-00054538-005: The Complainant, Mr Batista stated he was originally hired as a mechanic and yet his contract stated he was either a general operative or a garage operative. The Complainant, Mr Batista confirmed he got another job on 8 February 2023 on €100 per week less than this job. |
Summary of Respondent’s Case:
The Respondents confirmed they have four staff including a Polish staff member. Two witnesses on behalf of the Respondent took affirmations and gave evidence on behalf of the Company. CA-00054538-001: The Respondent stated they admit that the Claimant was not given a Statement of Terms and Conditions of Employment within the statutory limits. The Respondent stated they submit that the claimant was not prejudiced by this. They confirmed the claimant, Mr Batista worked in a small workforce of four, working with the owner most days. They stated he was well aware of his duties and responsibilities as well as his rate of pay and working hours. CA-00045438-002: The Respondent stated they deny that the Claimant was given incorrect parts, leading to returns of recently serviced tractors and other machinery. The Respondent further submits that no repairs were finished by unqualified personnel. The Respondent stated, the Claimant was frequently spoken to by Derek Clarke, Managing Director, about his poor workmanship but this did not lead to any improvement. The Respondent stated they had serious concerns about the damage to its reputation and had no option but to dismiss the claimant. The Respondent stated in this respect, the Respondent refer to the High Court’s decision in Bank of Ireland -v- Reilly [2015] IEHC 241. “38. It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer [emphasis added]to the conduct concerned - I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v. Purcell [2012] 23 ELR 189, where she commented (at p. 4): “Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93: ‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view.’ 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.” The Respondent stated it is submitted that in the instant case falls within the band of reasonable responses that a reasonable employer (acting reasonably) would take having regard to all the circumstances. CA-00054538-003: Specific Complaint under Discrimination/Equality/Equal Status. The Respondent stated it is noted that the claimant has withdrawn his claim for Discriminatory Dismissal. The Respondent stated in so far as the other claims under CA-00054538-003 have not been withdrawn the Respondent stated the claimant has not substantiated this complaint and is fully denied by the Respondent. The Respondent stated it is submitted that in line with the principles of natural justice the Respondent has been given no notice in respect of Race, Training and “Other” allegations brought against it, and therefore has not been afforded a fair opportunity to answer them. The Respondent referred to Able Security Ltd. and Hardjis Langsteins (DWT1319) where the Labour Court stated “The Court has consistently held that a Complainant carries an evidential burden to put in issue the facts upon which his or her claim is grounded and must outline the claim with enough particularity to allow a Respondent know what it is they are being accused of.” The Respondent stated the Claimant has also led claims under Section 77 of the Employment Equality Act 1998 (“the Act”) asserting that he was discriminated against by being victimised and harassed and discrimination is dealt with at Section 6(1) of the Act which states that discrimination occurs where: “…one person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)” (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—" (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”), (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”) The Respondent stated the law requires that the claimant establish a prima facia case of discrimination before the burden of proof shifts to the respondent. They stated it is the respondent’s position that the claimant has failed to discharge the burden of proof as set out in section 85A of the Employment Equality Acts 1998 – 2011 in establishing the facts from which it may be presumed that he suffered discrimination as a result of (a) Race (b) victimisation (c) harassment and (d) “other” The Respondent stated it is well settled that Section 85(A) of the Employment Equality Acts, as amended, specifies that the burden of proof rests with the claimant at first instance: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” The Respondent stated the test for applying that provision is well settled in a line of decisions and it requires the Claimant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. The Respondent stated it is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. The Respondent stated if the claimant does not discharge the initial probative burden required of him, his case cannot succeed. The Respondent referred to the decision of Melbury Developments v Arthur Valpetters (EDA0917) where the Labour Court, whilst examining the circumstances in which the probative burden of proof operates held as follows – "Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” The Respondent stated it is respectfully submitted that the claimant has failed or neglected to identify the most recent date of discrimination or identify the specifics of the complaint. The Respondent stated there is no comparator in respect of the allegations of discrimination based on race against the Respondent. The Respondent referred to the Labour Court clarifying the burden of proof in respect of discrimination under the Employment Equality Acts in “Mitchell -v- Southern Health Board [2001] 12 E.L.R. 201” follows: “It is necessary, however, to consider the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The first requirement of Article 4 of the Directive is that the claimant must ‘establish facts’ from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.” It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.” The Respondent stated the Claimant has taken a claim for victimisation under the Employment Equality Acts 1998 -2015. The Respondent stated referred to Section 74 (1) of the Act stating as follows “victimisation” shall be construed in accordance with subsection (2). (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to — (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant, (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.” The Respondent stated it is submitted in the first instance that the Complainant has not established that his circumstances fall within the definition of victimisation under the Act. The Respondent further refers to Department of Defence v Barrett EDA 1017 where the Labour Court stated: “Protection against victimisation is a vital component in ensuring the effectiveness of anti- discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment” That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: 1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act), 2. The Complainant was subjected to adverse treatment by the Respondent, and, 3. The adverse treatment was in reaction to the protected action having been taken by the Complainant. The Respondent stated it is submitted that the Claimant’s claim in respect of victimisation must therefore fail. The Respondent stated the Claimant has brought a claim of harassment under the Employment Equality Act 1998-2015. The Respondent referred to Section 14 of the Act states as follows: 14A. — (1) For the purposes of this Act, where — (a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is — (i) employed at that place or by the same employer, (ii) the victim’ s employer, or (iii) a client, customer or other business contact of the victim’ s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or (b) without prejudice to the generality of paragraph (a) — (i) such harassment has occurred, and (ii) either — (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or (II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’ s employer in relation to the victim’ s conditions of employment. (2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’ s employment and, if and so far as any such treatment has occurred, to reverse its effects. (3) A person’ s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person. (4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim’ s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment. (7)(a) of the Act defines harassment as (i) References to harassment are to any forms of unwanted conduct related to any of the discriminatory grounds Being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person (b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. The Respondent stated it is submitted that in his Claim papers the Claimant, has not identified how he was harassed as an employee of the Respondent, within the definition of the term “harassment” under the Act. The Respondent cannot therefore put forward a defence to this claim in circumstances where the claim has not been stated. The Respondent referred to the matter of Able Security Ltd. and Hardjis Langsteins (DWT1319) where the Labour Court stated “The Court has consistently held that a Complainant carries an evidential burden to put in issue the facts upon which his or her claim is grounded and must outline the claim with enough particularity to allow a Respondent know what it is they are being accused of.” The Respondent stated it is submitted that the Claimant has failed to put the facts upon which his claim for harassment under Section 14 of the Employment Equality is grounded in issue, it is not clear what the Respondent has been accused of. CA-000-54538-004: The Respondent stated the claimant asserts, inter alia, that the full name and address of the parties, the rate of calculating pay, the normal length of the working day were not set out in the Contract of employment yet he shows not a single example of detriment arising from this. The respondent refers to the Labour Court decision in Philmic Limited T/A Premier Linen Services -v- Petraitis (TED1616) where the Labour court determined as follows: “The Court finds that the Respondent was in breach of the Act at Section 3(g) and 3(ga). No submission has been made to the Court to the effect that the Appellant suffered no detriment as a result of these breaches. The Court measures the compensation amount which is just and equitable having regard to all of the circumstances of this case as being nil.” CA-000-54538-005: The Respondent stated the claimant asserts that he was hired as a mechanic, but the contract stated that he was a general operative or garage operative. The Respondent stated the claimant shows no detriment arising from this oversight. The Respondent stated it should be noted that the claimant describes himself as a “General Operative” in the Complaint Form. The respondent refers to the Labour Court in Grant Engineering (TED1728) referring to its earlier determination in Irish Water -v- Hall (TED 161) where it was concluded as follows: “No submission has been made to the Court to the effect that the Appellant suffered any detriment as a result of these breaches. The Court measures the compensation amount which is just and equitable having regard to all of the circumstances of this case as being nil.” The Respondent stated it is respectfully submitted, that the claims are unsustainable as a matter of law and should be dismissed entirely pursuant to section 77A of the Employment Equality Acts, 1998-2011. The Respondent refutes the allegations that the Claimant was discriminated against as alleged within his complaint. The Respondent stated the Claimant has failed to identify an appropriate comparator as is required under the Employment Equality Acts, identifying an employee who resigned from the company at the outset of the investigation process. The Respondent submits that all employees of the Respondent company are treated equally. The Respondent stated in relation to the claim under the Unfair Dismissals Act 1977 as amended, the claimant was fairly dismissed for poor performance. The Respondent stated the Complainant didn’t get the Terms & Conditions on time but stated he didn’t suffer a loss as a result of same. Mr Clarke, Managing Director of DC Farm Machinery Limited gave evidence and stated Spring/Summer is busy. He stated the work wasn’t been done by unqualified staff and he never raised this as an issue. Mr Clarke stated the Complainant could do some of the jobs but not all. He stated Mr Batista was struggling with diagnostics part of the job which was getting a bigger part of the job. He stated Mr Batista was good at other parts of the job. Mr Clarke stated he received good training and that Mr Batista had come from car business not farm machinery. Mr Clarke stated the Complainant was not discriminated due to race nor did he not get training. He stated Mr Batista received training but was not at the advanced training level before he did the advanced training and that’s the only reason, he didn’t attend electronic courses. Mr Clarke stated he didn’t victimise the Complainant in any way. He stated the business requirements is customers, farmers need work done and when mistakes were being made by Bruno Batista, he had an issue with him. He stated that if Mr Batista carried out work correctly it wouldn’t be an issue. He stated he had to pull him up on issues. Mr Clarke stated Mr Batista was paid general operative rates but he had to prove himself and his skill level was limited; he was good at certain things but didn’t progress past the mechanical work and couldn’t do diagnostics. Mr Clarke stated he felt Mr Batista, the Complainant was very opinionated and was adamant on him knowing it but he wouldn’t listen to guidance. Mr Clarke stated Mr Batista broke his company tools and made mistakes regularly and they gave him every chance as staff are hard to get. He stated Mr Barista was well able to communicate well and had very good English. He stated they did not treat him differently reference rate and confirmed they have a Polish employee too. Mr Clarke stated he accepted that there was issues Bruno Batista had with another member of staff. Mr Clarke stated he didn’t want to get involved in their issues as he felt it was linked to not disclosing Covid to him. He stated he just wanted people to work. Mr Clarke stated he was surprised Mr Batista didn’t have his own tools as they usually would have. Mr Clarke stated on 2 September he gave the Complainant, Mr Batista a written warning for carrying out a service incorrectly which resulted in the engine being seized and he had to rebuild the customer engine again which cost the company €7,000 approx. Mr Batista stated it wasn’t his fault even though he was the only one doing the service. Mr Clarke stated this was a big mistake and it affected his company reputation also. Mr Clarke stated the company dismissed the Complainant on 8 December when he called Mr Batista into the office as he had made another serious mistake with a seal. Mr Clarke stated they gave Mr Batista a letter to say the reason was quality of work after taking no heed of previous warnings. Under cross examination Mr Batista asked Mr Clake could he have more training as he asked for it as his colleague received it after starting. Mr Clarke stated he didn’t have enough base level training to do that course. Mr Clarke stated when he called the Complainant to the office for warnings, he stated he told Mr Batista he was costing him too much money and they didn’t get on as a result. Mr Clarke stated the reason that himself and the other employee didn’t get on was he didn’t disclose he had Covid when they thought he had it. Mr Batista stated the Respondent gave him a verbal contract saying it would be mechanical work but Mr Clarke stated he was limited due to his diagnostic abilities so he had to pick jobs to give him. Mr Batista stated he didn’t understand why Mr Clarke was letting him go and gave him 2 weeks’ notice. Mr Clarke stated “I’ll see in you Court” when he gave him 2 weeks’ notice. Mr Clarke stated he thought he was entitled to that. The Witness Mr Grady also gave evidence for the company. Mr Grady stated he was a customer of the company and he said Bruno Batista, Complainant did work for him and he took a video of one piece of work that Mr Batista did and he rang the company to complain about it as it was big issue. It was not done correctly and was at a big loss as a result of it. |
Findings and Conclusions:
CA-00054538-001/ CA-00054538-004/ CA-00054538-005: Section 7 of the Terms of Employment (Information Act), 1994 states: The 3 claims were related to the same legislation and the Respondent accepted his contract was given to him late based on the legislations obligations, but they stated the Complainant was not at a loss. The relevant legislation at the time of the claim states that: - 3. (1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say— (a) the full names of the employer and the employee, (b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963), (c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places, (d) the title of the job or nature of the work for which the employee is employed, (e) the date of commencement of the employee's contract of employment, (f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires, (g) the rate or method of calculation of the employee's remuneration, (h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, (i) any terms or conditions relating to hours of work (including overtime), (j) any terms or conditions relating to paid leave (other than paid sick leave), (k) any terms or conditions relating to— (i) incapacity for work due to sickness or injury and paid sick leave, and (ii) pensions and pension schemes, (l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, (m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made. (2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given. (3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way. (4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer. (5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter. (6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order. (b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph. (7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of Having considered the evidence, the Complainant did not receive this information within the required timeline of the legislation and the Respondent accept this to be the case. Therefore, this claim which is outlined in claims 01, 04 and 05 succeeds. CA-000-54538-002: I am going to consider the allegation of Unfair Dismissal in line with Section 6(1) of the Unfair Dismissals Act 1977 which 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.” The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. Section 6(4)(a) of the 1977 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 capability, competence of qualifications of the employee for performing work of the kind he was employed by the employer to do.” A number of judgements were considered by the Adjudicator in arriving at my decision. Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as follows: “it is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at the time would have done and decided and to set this up as a standard against which the employer’s actions and decision be judged.” The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations (and also extends to disciplinary processes brought under Section 13 of the Industrial Relations Act 1969) as follows: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.” Therefore, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases considering the bar that constitutes gross misconduct and dismissal is a high one. Bunyan v United Dominions Trust (1982) ILRM 404 states “the fairness or unfairness of a 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”. It is also relevant to consider whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”. In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances. The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her “submissions listened to and evaluated”. Finally, in dealing with the issue of “Procedural v Substantive Justice” I note that “Procedural defects will not make a dismissal automatically unfair as an employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee. I will consider this also. I have considered Section 6(4) of the Unfair Dismissals legislation which states as follows 4) Without prejudice to the generality of subsection (1) of this section, 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 one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do. In line with the legislation failure to reach the required standard of performance is a reasonable reason for an employee’s termination of employment once fair procedures and process is afforded to the employee in accordance SI 146 of 2000. Even though there is alleged performance issues no process was followed in line with these procedures and I find that the Respondent did not act within “the bands of reasonableness” in this case and the claim for unfair dismissal succeeds and is well founded based on the evidence presented and is not in line with what a reasonable employer in the same position and circumstances would or should have done in line with their legal obligations. CA-00054538-003: Claim in relation to Section 77 of the Employment Equality Act, 1998 Section 85A of the Act provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming with its ambit. This section provides, in effect, that the Complainant bears the initial burden of proving facts from which discrimination may be inferred. If those facts are established, and if they are regarded by the Adjudicator as of sufficient significance to raise an inference of discrimination, the onus passes to the Respondent to show that the principle of equal treatment was not infringed in relation to the Complainant. I do not find that the Complainant has met this burden. Therefore, this claim fails and does not succeed. |
Decision:
Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaints.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 77 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00054538-001/ CA-00054538-004/ CA-00054538-005 All these 3 claims are linked to The Terms of Employment (Information) Act, 1994 and I have considered them together and I find that the claims succeed under the Terms of Employment (Information) Act, 1994 a redress award of €1,060 equating to two week’s pay is made in favour of the Complainant. This is compensation for breach of a statutory right and is not renumeration. CA-00054538-002 I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the complaint is well founded based on the evidence provided based on the complete failings in the respondent’s process, notwithstanding alleged performance issues. I find that the appropriate redress in all the circumstances of the present case is compensation. In assessing the level of compensation to be awarded I note that the Complainant was being paid a net weekly wage of €530 by the Respondent at the material time of his dismissal. The Complainant secured another role on less money on the 8 February. I afforded both parties the opportunity to make submissions in relation to the Complainant’s loss arising from his dismissal and his efforts to mitigate those losses, of which I have taken into account in deciding the quantum of the award of compensation. I find that the Complainant contributed significantly to his dismissal, and I determine that, having regard to this fact, I deem that an award of €1,500.00 to be the appropriate award in the circumstances of this case. This award takes into account the Complainant’s actual financial loss to date and the loss which I deem attributable to future loss of earnings arising from his dismissal. CA-00054538-003 Section 77 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. The Claim did not meet the requirements of the legislation. |
Dated: 02nd May 2024.
Workplace Relations Commission Adjudication Officer: Caroline Reidy
Key Words: