ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027539
Parties:
| Complainant | Respondent |
Parties | Mariusz Karpiej | Meditec Medical Limited |
Representatives | Ronan Mackay RM Solicitors | Margaret O’Brien HR Manager |
Complaint(s):
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-00035084-001 | 06/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00035084-002 | 06/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00035084-003 | 06/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00035084-004 | 06/03/2020 |
Date of Adjudication Hearing: 14/12/2021 and 09/02/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
There are opposing views as to whether this was a Dismissal initiated by the Employer or a Constructive Dismissal. The correct interpretation was not immediately apparant and I directed that the Employer should go in to evidence first. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a 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 other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal. If the Dismissal is Constructive it shall be for the Employee to show the reasonableness of this decision.
Section 6(1) of the Unfair Dismissals Act 1977 :
“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”
Section 6(4) of the Unfair Dismissals Act 1977 :
“Without prejudice to the generality of Subsection (1) of this section the dismissal of an employee shall be deemed for the purposes of the 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 for which he was employed by the employer to do;
(b) The conduct of the employee,
(c) the redundancy of the employee, and
(d)….”
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 6th March 2020) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
In addition to the Complaint brought under the Unfair Dismissals legislation above, the Complainant has made further allegations that the Employer herein has contravened provisions and/or enactments of Acts (generally protective employment Acts) which have been specified in Schedule 5 of the Workplace Relations Act of 2015. As the Adjudicator assigned to deal with these matters, my obligation is to hear these further complaints in accordance with the mechanism set out in part 4 (and in particular, section 41) of the 2015 Act. Having heard the complaints in the manner so prescribed I am entitled to consider redress in accordance with the Redress Provisions outlined in Schedule 6 of the Workplace Relations Act of 2015.
Complaints have been made under the Organisation of Working Time Act 1997 and the Payment of Wages Act 1991.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.
In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.
Background:
A workplace Relations Complaint Form issued on the 6th of March 2020 wherein the Complainant says he was unfairly dismissed from his place of employment when the Employer failed to offer him a position in the workplace on a full time basis after he had lost his driver’s licence. |
Summary of Complainant’s Case:
The Complainant was legally represented, and I was provided with a comprehensive submission setting out the facts and legal position. The Complainant gave evidence on Affirmation and this was tested by the Respondent. The Complainant says he was Unfairly Dismissed. |
Summary of Respondent’s Case:
The Respondent was represented by the Managing Director AS and the HR Manager MOB, both of whom I heard. The Respondent submission was also received and considered by me. The Respondent says the loss of the Driver’s Licence had a significant impact on the level of work it could offer the Complainant. The ability to drive to client sites is an integral part of Maintenance and technical roles. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of two days of hearing. The Respondent company designs and manufactures hospital beds and pneumatic mattresses intended to be used in patient settings such as in Hospitals, in Care homes and in domestic settings. Beds such as these can be purchased or rented as required and come with the promise of ongoing maintenance, inspections and re-calibration so as to best suit the end user’s requirements. The Complainant came to be employed by this company in June of 2018 and had a suitable technical background. The Contract of Employment was opened to me at length and I note that the Complainant’s job title was that of warehouse technician. The Complainant representative urged me to accept that any ordinary reading of this job title would suggest that the intention was that the Complainant would be expected to be placed in, and work from the warehouse situate in the Whitestown Industrial Estate. I note that that Contract does state that this will be the normal place of work. The Respondent stated that in practise any employee who had been fully trained up in the products being rented and supplied to customers could expect to be sent out to customer premises to fulfil the commitment made by the company to maintain, repair and inspect products which were in use in hospitals and care homes and in domestic situations. A fleet of company vehicles were available to employees to get this work done and I note that the Contract does reference these vehicles to be used by the Respondent employees. I note company vehicles are also used to collect beds at the end of a rental period and or to be returned to the shop for repairs and/or decontamination. Of the eighteen or so employees 5 are in administration and 2 are in decontamination whilst the rest seemed to be on the road to some extent. For the avoidance of doubt, I confirm that I accept it makes more sense to try and repair products where they are in use rather than returning them to the warehouse for repairs I specifically asked the Complainant about how his work pattern had in fact developed. He told me that he worked almost exclusively in the warehouse for two months initially. His was a role in Maintenance. He worked on mattress pumps and on the bespoke bedframes. He was also welding mainframes. After about two months the Complainant was asked to go on the road and start doing site visits. The Complainant, who held a full driver’s licence, seamlessly incorporated this request into his working week and spent as much time on the road effecting repairs and maintenance to the off-site beds and mattresses as he spent manufacturing and fixing them back at the warehouse. I am satisfied that the Complainant worked this hybrid position on site and on the road for a year or more before an injury put him out of the workplace for about 8 weeks he says. The sick leave was certified, and the Complainant was to return to the workplace on the 15th of October 2019. The Employer was keen to understand at what level of capability the Complainant would be returning to the workplace and asked that the Complainant to obtain a fitness to work cert which the Complainant duly did. I understand the company paid for this medical consultation. I accept the Respondent evidence that the Complainant’s absence had caused a backlog in ongoing Maintenance and repairs both on site and off site. I understand a supervisor had covered the Complainant to some extent in his absence. I also accept that it came to the Employer’s attention that whilst the Complainant had been absent through illness he had also lost his driver’s licence though the circumstances giving rise to that (presumed Court Order) was never disclosed. To be fair, the Complainant was absolutely honest in confirming the loss of the licence for one year when he was asked about this on the 17th of October 2019. I note that the Complainant’s medical report at this time suggested he was only fit for light duties for a further four weeks. I have two versions of what transpired at the meeting on the 17th of October. I believe it is agreed that the Employer (the Managing Director and immediate Supervisor) indicated that in circumstances where the Complainant was no longer able to drive to and from client sites then there would only be a half week (two to three days) of work on the in-house Maintenance available to him for the foreseeable future. The Managing Director states that the Complainant continued to be a valuable employee as he was fully trained up in the products but that the loss of the driver’s licence was detrimental to the functions he was required to perform. The Respondent states that the Complainant became very irate, swore and threatened legal action. The Respondent states that the Complainant said something like “I’m out of here. I’m finished with this company” before slamming the door behind him. The Respondent states that this amounted to a Constructive Dismissal. The Managing Director says he had a further conversation with the Complainant on the 22nd of October at which time the Complainant had returned to collect his belongings. This meeting does not appear to have gone any better than the one on the 17th. There is a suggestion that the manner of his return was intimidatory to other employees and he had purportedly tried to remove company property. The Managing Director considered there to be a complete break-down in the relationship at this point. The Complainant’s evidence is that he was shocked and disappointed to be told on the 17th of October that he could only return to the workplace on significantly reduced hours. The Complainant had at this time been out of work on sickness benefit for nearly two months and needed to return to his full salary. The Complainant accepts that the loss of his Drivers Licence was a problem, but he states that he asked for and should have been returned to an in-house role of Warehouse Technician on a full time basis now he was no longer able to drive out to client facilities. This had been his previous job. The Complainant says that the MD said to him that he could have two days of work in the warehouse and if that didn’t suit him then there was no other job in the Respondent workplace. The Respondent states that this amounted to a dismissal. I should note for the sake of completeness that the Employee Handbook specifically confirms that any employee who is required to drive in the course of duties must have a current full driving licence and that the loss of a driver’s licence may result in the termination of the employment. It is of course difficult to reconcile the two verbal accounts of what happened on the 17th of October and indeed the 22nd of October. I am however on balance satisfied that the Complainant was not correct in asserting that he was entitled to be re-engaged on a full-time basis back in the warehouse. For over a year the Complainant had been engaged in performing client based Maintenance and inspection work which required him being able to drive a company vehicle to the many client sites wherein product had been placed. It is an unfortunate fact that the Complainant lost his licence thus diminishing his usefulness to the company. The company did try and ameliorate the situation by suggesting a two to three-day week in the warehouse - performing maintenance and welding and repairs. This was all the work the Respondent felt it could offer though the Employer says (and I am inclined to accept) that it was open to revising the hours upwards when the Complainant was off light duties and when the company could assess what other work could be assigned to the Complainant. I understand that the Complainant was disappointed, but the loss of a full-time roll was brought about by the loss of the driver’s licence. The Employer cannot be blamed for having to respond to this fact. On balance I am inclined to accept that the Complainant was at fault here and that he walked away form this employment because he perceived his Employer as unreasonable for not placing him in the warehouse for a five day week. I am therefore finding that this was a Constructive Dismissal. I heard evidence in connection with the complaints brought under the other pieces of legislation. At the outset I must state that the Complaint is dated the 6th of March 2020 which means I can only use the period of time from the 7th of September 2019 to the 6th of March 2020 when considering the complaints. Most of this period of time was, of course, after the employment relationship had ended. The Complainant did not give detail about holiday pay due and owing at the end of the employment. As I consider this to be a Constructive Dismissal as of the 17th of October there was no notice given. I note the company has conceded that it was not always clear on the need to give and take breaks and has since rectified this.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00035084-001 - The Complainant was not Unfairly Dismissed and in fact resigned in circumstances where it was not reasonable for him to do so Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00035084-002 - The Complaint herein is well founded, and I award the sum of €500.00 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00035084-003 – The Complaint herein is not well founded Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00035084-004 - The Complaint herein is not well founded
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Dated: 15th February 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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