Complainant

Respondent

Parties

Lorencsics  Szilard

Rosaderra Irish Meats

Complainant

Respondent

Anonymised Parties

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Representatives

IBEC

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-00035230-001

13/03/2020

The Complainant commenced employment with the Respondent on 11/3/2010. The Complainant alleged he was unfairly dismissed and was not afforded a fair disciplinary process. The allegations are disputed and denied by the Respondent.  

The Respondent stated that the Complainant failed to attend work since 23/2/2018 and that he failed to comply with its Works Agreement policy and his Terms and Conditions of Employment. The Respondent stated the Complainant did not respond to its numerous attempts to contact him or attend various review meetings regarding his absenteeism and that he failed to keep in contact with the Respondent after an absence review meeting in March 2019. The Respondent stated that after March 2019 it received no information from the Complainant regarding his absenteeism or the length of time for which he would be absent  - despite invitations to absence review meetings on 2 August and 11 October 2019 – none of which meetings the Complainant attended. The Respondent stated that it was the Complainant’s  responsibility to notify it of any changes to his location address. In view of the Complainant’s lack of engagement and failure to comply with its Works Agreement policy and his Terms and Conditions of Employment, the Respondent stated it had no option but to terminate the Complainant’s employment in October 2019.

Evidence of Former HR Manager

The Respondent’s former HR Manager gave evidence and stated that between February 2018 and March 2019 the Respondent was in regular contact with the Complainant but thereafter,  the latter failed to keep contact or update the Respondent on his status despite formal requests to do so. The former HR Manager stated that he had been proactive in terms of regularly checking in with the Complainant but that he struggled to ascertain his return to work date. The former HR Manager stated that apart from the 2018 Christmas voucher, the only payment the Complainant received from the Respondent since 23/2/2018 was for accrued annual leave.

The former HR Manager outlined his communications with the Complainant – specifically in relation to the invitation to review letters of 25/7/2019, 20/9/2019, 4/10/2019 and the final letter of 25/10/2019 wherein the Complainant was advised that his employment had been terminated.

The former HR Manager stated that he had no contact with the Complainant in December 2019 but that in January 2020, he was contacted by a Supervisor who informed him that the Complainant was seeking to return – notwithstanding that he had been dismissed. The former HR Manager stated that he advised the Supervisor in or around February 2020, that the Complainant could return to a new role provided he passed a pre-employment medical and an induction process which entailed a new contract and probationary period. The former HR Manager stated that the Trade Union representative advised the Complainant of the position but the Complainant did not accept the offer to return.

The Complainant questioned the former HR Manager on his medical certification. The Complainant also questioned the HR Manager on why he did not receive any letters pertaining to his dismissal to which the HR Manager responded that all correspondence was sent to the Complainant’s notified postal address which also appeared on his payslips. The Complainant questioned the former HR Manager on why he was not furnished with his documentation in February 2020 to which the latter replied that he was asked to put his request in writing and that the Respondent’s policy documents were translated in the Complainant’s own language.

In response to questions from the Adjudication Officer the former HR Manager clarified that only four letters had been issued to the Complainant in 2019 and that the situation was difficult as the Complainant was not engaging. The Adjudication Officer put it to the former HR Manager that the letters did not mention a disciplinary hearing or the initiation of the Respondent’s disciplinary procedures. The former HR Manager stated that he considered the letters set out the Respondent’s concerns regarding alleged breach of contract and the consequences and that they specifically mentioned disciplinary action and the possibility of dismissal. In response to a question on the date of dismissal the former HR Manager stated that he interpreted the date as immediate. In relation to consideration of lesser sanctions, the former HR Manager stated that he did not consider that a warning was appropriate given the Complainant’s lack of engagement. He considered he had no option but to dismiss. The former HR Manager stated that the Respondent’s policy was followed correctly and the Complainant was afforded a right of appeal.

It is the position of the Respondent that having unsuccessfully attempted on several occasions to meet with the Complainant, it had no option but to terminate his contract for continuous absenteeism and constant breaches of the Works Agreement and the Respondent’s Terms and Conditions of Employment. The dismissal was conveyed to the Complainant by letter dated 25 October 2019 following prior warning and he did not appeal the decision nor avail of representation from his Trade Union.

The Complainant stated that due to a workplace injury he was out of work on illness benefit from 23/2/2018. He stated that throughout he was in contact with the Respondent and that his GP was also the Respondent’s Company Doctor. He stated that he received a Christmas voucher in December 2028. The Complainant stated that he was called to the office in March 2019 for a review meeting where there was discussion on when he could return to work. The Complainant stated that he had no further contact with the Respondent throughout 2019 and that he was waiting to be contacted by the Respondent’s HR Manager and/or his Supervisor – though this never occurred.

The Complainant stated that the next contact he had with the Respondent was on 12/1/2020 when he informed his Supervisor that he was ready to return to work. He stated that at that point he was advised to wait as there was not much work available. On 24/2/2020 the Complainant stated he spoke with the Respondent and that it was only at that point that he was informed he had been dismissed. The Complainant stated he was informed by the Respondent that he could return to work in a new role and that he would be starting on a new contract and needed to re-train – which he stated occurred to some extent on 25 and 26 February 2020. The Complainant stated that he was also asked for a pre-employment medical letter which he provided. The Complainant stated that when he went to his workplace on 27/2/2020 he was presented with the new contract of employment which provided for a new probationary period. The Complainant refused to sign the new contract as he stated he wished to get advice. He stated that he went to his local Intreo office and discovered that a P45 had been issued for him on 5/12/2019 but that he had not received any information, documentation or reason for his dismissal from the Respondent.

The Complainant was cross examined on his evidence. Under cross examination he accepted he had not contacted the Respondent between March 2019 and January 2020. The Complainant stated that his last pay was paid into his bank account in December 2019 but that he did not receive a payslip. The Complainant stated that he usually received hard copy of his payslips in the workplace and that they were not posted. He stated that he had no issue with the payment. The Complainant was questioned as to his address and he responded that he had not moved location during 2018 – 2020 but had moved in 2014.  In that regard he stated that he tried on several occasions to give his new address to the Respondent but he accepted he had not notified the Respondent in writing of this new address. He stated that the Company Doctor had his correct address and that he presumed the Doctor would have been in contact with the Respondent. Under questioning by the Adjudication Officer the Complainant stated that he had not received any of the four letters of 25/7/2019, 20/9/2019, 4/10/2019 and 25/10/2019.

Under questioning the Complainant also accepted he was offered the opportunity to return to employment with the Respondent in a different role. He stated that he didn’t accept this as he didn’t want to start all over again in terms of probation and pay scale.

The Complainant stated that following advice he returned to the workplace on 5/3/2020 and requested copies of all correspondence which he stated he was refused.  He stated that he spoke with his Trade Union representative who allegedly informed him that the latter was unaware of his dismissal but that matters had been handled correctly by the Respondent.

It is the position of the Complainant that he was unfit for work between February 2018 and February 2020 and that during this time he was dismissed without fair procedures and was never informed of the dismissal or the reasons therefor. By way of mitigation the Complainant stated he started new employment in March 2021. He stated that he couldn’t work in 2020 due to transportation issues and lack of available jobs due to the Covid-19 pandemic. The Complainant outlined his earnings and stated that he was seeking compensation.

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows:

“dismissal”, in relation to an employee, means—

a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee……”

Section 6 (1) of the Unfair Dismissals Act [1977-2017] 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) of the Act prescribes the circumstances where a dismissal may be justified:

6 (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 ……

(a)    the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 6(6) of the Unfair Dismissals Act [1977-2017] 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)….. or that there were other substantial grounds justifying the dismissal”.

Section 6 (7) of the Act 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 by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice…..”

Section 14(1) of the Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment.

Sections 7 (2) of the Act provides that an Adjudication Officer may consider “compliance or failure to comply by the employer in relation to the employee, with the procedure referred to in subsection (1) of section 14….or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,….”

The combined effect of the above provisions is to place the statutory burden of proof on the Respondent to show that it acted reasonably, that it acted in accordance with its disciplinary procedure and/or relevant code of practice and that the reason for the dismissal was substantial and/or within the parameters of Section 6(4).

The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns it may have about the poor performance or conduct of an employee and at the same time, afford the employee the opportunity to answer any allegations and make representations as to why he/she should not be disciplined or dismissed. This rationale coupled with the principles of fair procedures are set out in Statutory Instrument (SI) 146/2000 which is the Code of Practice applicable to workplace disciplinary matters.   I have summarised the requirements of SI 146/2000 as follows:

·        To comply with the general principles of natural justice and fair procedures;

·       That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned;

·       That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available;

·       That generally the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal.

In the Supreme Court decision in Iarnród Éireann/Irish Rail V McKelvey [2019] IESC 79, Charleton J. made the following comments about the conduct of a disciplinary process:

“Dismissal is therefore about substance; whether an employee is competent or qualified to do the job, or whether misbehaviour is involved. 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 his [or her] defence to the allegations made against him [or her]…..”

Further to the above principles, it has been well established in case law that it is not the function of an Adjudication Officer to re-investigate disciplinary complaints or to substitute their view for that of a Respondent employer. Rather the focus is whether the decisions arrived at are rational, reasonable and based on the information available.The Labour Court summarised the correct approach in the case of Clancourt Management Ltd T/A Clancourt Management V Mr Jason Cahill [UDD2234], where it stated:  

“In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissal the test for this Court is that which was set by Lord Denning in the British case of British Leyland UK Ltd v. Swift (1981) IRLR 91, to determine if the dismissal falls into a ‘band of reasonableness’, a test which was confirmed in this jurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that ‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.’ He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall into this band of reasonableness? .....”

Against the foregoing backdrop and having carefully considered all the sworn evidence, submissions, documentation and case law cited, I make the following conclusions:

1.       I am satisfied the Respondent’s Works Agreement and “People, Policies & Procedures Handbook” set out extensive information on the Complainant’s terms and conditions of employment including in relation to absenteeism, sick leave and the Respondent’s disciplinary procedure. In that regard, I note that the Works Agreement was translated into the Complainant’s own language, that the Agreement placed an obligation on the Complainant “to read and understand this Agreement, which is a fundamental part of his/her conditions of employment…” and that the Complainant signed off to this effect on 15/3/2010;

2.       The Works Agreement placed an obligation on the Complainant to furnish ongoing medical certification and to notify their Supervisor before returning to work. Specifically in relation to ongoing review the Works Agreement provided as follows:

Long term absenteeism will be reviewed on a three monthly basis. Persistent absenteeism will result in dismissal….

The parties to this Agreement will recognise that absenteeism poses serious restrains to the operation of an efficient and cost effective plant. Every effort will thus be made by all employees concerned to minimise the level of absenteeism…..

Where an employee is frequently absent or absent for an extended period, the Company will have the right to review the continuation of employment of the employee in the light of his/her inability to attend work on a regular basis or due to absences which follow a pattern. An employee may be required to attend a full examination by a doctor appointed by the Company”

3.       In light of the previous point No 2, I am satisfied the Respondent was entitled to seek to meet with the Complainant for the purpose of reviewing his absence – as per the letters to him of 25/7/2019, 20/9/2019 and 4/10/2019 and that the Complainant was obliged to attend those review meetings. In the course of the letters to the Complainant he was reminded of the Works Agreement and his obligations in that regard. I am satisfied that it is not in dispute that the Complainant did not attend the review meetings scheduled for 2/8/2019 and 11/10/2019 and that he did not respond to the Respondent’s letter to him of 20/9/2019;

4.       I have carefully considered the Complainant’s and Respondent’s position in relation to the non-receipt of the aforementioned letters and the letter of 25/10/2019. It is the position of the Complainant that he never received the letters but he acknowledged he did receive payslips at his pre 2014 address and that he had not notified the Respondent in writing of his change of address since 2014. For its part the Respondent cited the Works Agreement which stipulates under the heading “PERSONNEL RECORDS” that “Employees must inform the factory manager in writing of change of address, marital status and the person to contact in the event of any emergency”.  Given the gravity of the situation I am of the view that both the Complainant and the Respondent should have made better efforts to make contact after March 2019 particularly in light of the evidence that there was contact prior to then. Notwithstanding, given the specific provision of the Works Agreement and that the Complaint’s pre 2014 address was still being written on his payslips (as per the annual leave payslip I viewed of 4/12/2019), I am satisfied the Complainant should have been alerted to the continuing use of his old address by the Respondent and that the primary onus lay on him to notify the Respondent in writing of his current address;

5.       The letter to the Complainant of 4/10/2019 summoned him to a meeting on 11/10/2019 for the purpose of reviewing his employment and in that regard, the letter stated that “As a result of your continuous absenteeism and constant breach of your Works Agreement and Terms and Conditions of Employment the company has been left with no alternative but to review your employment”. Thereafter the Complainant was issued with the letter of 25/10/2019 which advised that “As a result of your continuous absenteeism and constant breach of your Works Agreement and Terms and Conditions of Employment the company has been left with no alternative but to terminate your employment. You can appeal the company decision as per your works agreement and the grievance procedure…..within 5 working days…”. As already outlined, the Complainant did not receive this letter and he has stated that the first he knew of his dismissal was in February 2020. The key issue for me, however, is whether the Respondent’s manner of termination complied with fair procedures or complied with the Respondent’s own Disciplinary Policy/Procedure as set out in its Works Agreement and “People, Policies & Procedures Handbook”. In all the circumstances I find that it did not for the following reasons:

a.       Whilst I accept that the phrase “review your employment” implies potential disciplinary action and whilst the Complainant was formally put on notice of “disciplinary action up to and including dismissal”  - as per the letter of 20/9/2019, I am not satisfied that the Respondent applied the requisite transparency in the dismissal process as required by SI 146/2000 and fair procedures generally.  In this regard I note that the complaints against the Complainant were not identified as disciplinary charges, that there was no mention at all of a disciplinary hearing or the initiation of a disciplinary process nor was a date of dismissal specified;

b.       I am not persuaded that the Trade Union was  appraised at the time of the dismissal even though the Works Agreement provided that “The Company will inform the Union of the intended action to be taken” – and no evidence to the contrary has been presented to me;

c.       I am not satisfied that the Respondent’s decision to dismiss sufficiently considered the Complainant’s length of service or that it sufficiently explored alternative sanctions – such as a warning/final written warning or unpaid suspension as specified in the company policy. I have also taken into consideration that the Complainant was offered to return to the Respondent’s workplace within a short period of time – ie February 2020 – and that the only reason this did not occur was because the Complainant did not wish to sign a new contract or start probation again. In terms of proportionality I note the High Court stated in Frizelle V New Ross Credit Union Ltd [1997] IEHC 137 that the decision to dismiss should be “….a decision proportionate to the gravity of the complaint, and of the gravity and effect of the dismissal on the employee”

In light of the foregoing, I am satisfied the Respondent has not discharged the burden of proving that the dismissal was procedurally fair or that it was within the band of reasonable responses available to the Respondent.  

CA-00035230-001

For the reasons outlined this complaint is well founded. I decide that compensation is the appropriate remedy and I note the Complainant has also selected this remedy.

Section 7 of the Unfair Dismissals Acts[1977 – 2017] provides for payment “of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration ……) as is just and equitable having regard to all the circumstances” and it defines financial loss  “….as including any actual loss and any estimated prospective loss of income attributable to the dismissal ….”. In addition, I am obliged to have regard to the measures adopted by the Complainant to mitigate his losses. Whilst the Complainant stated that he encountered transportation issues and lack of available jobs, he has not furnished evidence of any efforts made by him in 2020 to obtain alternative employment and he only commenced in a new position in March 2021 – ie some thirteen months after he was deemed medically fit to resume employment and after the Respondent’s offer of re-employment.

Section 7 of the Unfair Dismissals Acts[1977 – 2017]  also requires me to consider  the extent (if any) to which any financial loss was attributable to an action, omission or conduct by or on behalf of the employee. In this regard, I am satisfied that the Complainant’s failure to update the Respondent on his current address significantly contributed to matters escalating to the point of dismissal and in all likelihood resulted in his failure to appeal.

The Complainant stated that his current gross weekly pay is €550 and that he was paid €467.00 gross weekly by the Respondent in 2019. Taking the foregoing factors into account, I hereby determine that the Complainant should be entitled to thirteen weeks/approx three months – gross pay - which amounts to €6,071 to compensate for the unfair dismissal. However, I am applying a 50% deduction from this amount to reflect the Complainant’s own contribution to the dismissal. Accordingly, the totality of the award is €3,036 which sum I consider just and equitableinall the circumstances. This financial award is subject to such statutory deductions as may apply.

Dismissal, Contribution, Mitigation, Absenteeism, Disciplinary Procedures