EDA2531

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044650 (CA-00055357-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 01 December 2023.

A Labour Court hearing took place on 25 February 2025.

The following is the Determination of the Court:

DETERMINATION:

Background to the Appeal

This is an appeal by Mr Alexandru Sirbu (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00044650/CA-00055357-001, dated 24 November 2023) under the Employment Equality Act 1998 (‘the Act of 1998’). Notice of Appeal was received in the Court on 1 December 2023.

The Court heard the appeal in Dublin on 25 February 2025.

There was no appearance on behalf of Derby Transport Limited (‘the Respondent’) at the appeal hearing. The Respondent is a company registered in Northern Ireland (Company Number: NI622344). The Court is satisfied that the Respondent was duly notified of the within hearing through correspondence that issued from the Court to the address for correspondence listed on the register maintained by Companies House.

The Complaint

The Complainant alleges that he was victimised by the Respondent within the meaning of section 74(2) of the Act. He submits that the victimisation occurred when he was dismissed by the Respondent on 15 February 2023 following his attendance on 14 February 2023 at a hearing into a number of statutory complaints by an Adjudication Officer of the Workplace Relations Commission.

Adjudication Officer’s Decision

The Adjudication Officer decided that the complaint of victimisation was not well-founded:

“… I find that the Complainant has failed to establish that he invoked or undertook to invoke any of the protected acts within the meaning of section 74(2) of the Act. I find that the Complainant’s complaint is a general complaint relating to his terms and conditions of employment and is not a complaint for victimisation under the Act.

Accordingly, I find that the Complainant has failed to establish facts from which it could be inferred that he was subjected to victimisation within the meaning of Section 74(2) of the Act in the within case.”

The Complainant’s Evidence

The Complainant told the Court that, to his knowledge, Mr Ian Derby is the principal of two related companies: Mourne Freight Services Ltd and the Respondent. His evidence was that he began employment as an HGV driver with the former company in July 2020 but was transferred to the Respondent during his probationary period.

He said that he never received any written terms and conditions of employment from either company.

The Complainant told the Court that he referred a complaint under the Payment of Wages Act 1991, along with a complaint under the Employment Equality Act 1998, to the Workplace Relations Commission on 12 July 2022.

The Complainant said that he received notification of a hearing date of 14 February 2023 sometime in January 2023 following which he was contacted by Mr Ian Derby on 10 February 2023 and allegedly threatened by him for having disclosed certain information to the Workplace Relations Commission in relation to how the Respondent’s drivers were paid.

Counsel for the Complainant exhibited a letter dated 2 February 2023 on Mourne Freight Services headed paper that contained a notification to the Complainant that he was being issued with a written warning for “continued late attendance and not following company procedures”.

The Complainant then gave evidence that, on 14 February 2023, he was advised by a colleague in the Respondent’s office that he should leave his truck in the yard as it would be required by another driver the following day. The Complainant told the Court that he regarded this instruction as unusual as there was always a spare truck in the yard. Nevertheless, he said, he retrieved his personal belongings from the truck.

Later that day, following his hearing before the Adjudication Officer, at which the Respondent was represented by Mr Ian Derby, the Complainant said that he called the office to get his rota for the following day but received no answer. He also sent a text which went unanswered. This, he said, was unusual because the rota for the following day is usually available from midday the previous day. The Complainant made similar efforts, he said, the following morning.

His evidence was then that he received a telephone call from Mr Ian Derby who told him to stop contacting his (i.e. Mr Derby’s) staff as he (the Complainant) was no longer working for him. The Complainant told the Court that he took this to mean that he had been dismissed. When asked by the Court what he believed Mr Derby’s reason for dismissing him was, the Complainant replied that he believed Mr Derby was annoyed with him for having disclosed that the company was not paying workers properly for public holidays and thereby creating problems for the company, by referring claims under the Acts of 1991 and 1998 to the Workplace Relations Commission.

The Law

The meaning of ‘victimisation’ for the purposes of the Act is set out in section 74(2) which provides:

“(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.”

Discussion and Decision

The Complainant’s direct evidence to the Court was that he was dismissed by Mr Derby for having relayed information to the Workplace Relations Commission about the company’s alleged non-compliance with certain aspects of the Organisation of Working Time Act 1997. The Complainant is seeking to characterise his dismissal as an act of victimisation within the meaning of the Act by the Respondent. His direct evidence links his dismissal to the information he disclosed to the Workplace Relations Commission when bringing his statutory claims under the Acts of 1991 and 1998.

In the Court’s view, the Complainant has thereby established facts from which an inference of victimisation within the meaning of section 74(2) can be made. The Respondent made a decision not to attend the within hearing to avail itself of the opportunity to rebut that inference.  The Court finds that, in those circumstances, the appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court measures the compensation payable to the Complainant for the effects of the victimisation he experienced, including the summary termination of his employment, at €40,000.00, being just under one year’s gross salary.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
AL	______________________
28th March 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Amy Leonard, Court Secretary.