ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040744
Parties:
| Complainant | Respondent |
Parties | Velimir Eldic | BWG Foods Unlimited Company, unit D & E |
Representatives | Self-Represented | Company Managers: Ms Wunderlich and Mr Clarke |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00051983-002 | 28/07/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00051983-003 | 28/07/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00051983-004 | 28/07/2022 |
Date of Adjudication Hearing: 28/04/2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 6 of the Payment of Wages Act, 1991 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.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury were explained to all parties.
There were no issues raised regarding confidentiality in the publication of the decision.
Background:
The issues in contention concern the alleged Unfair Dismissal of the Complainant, a General Operative, by the employer, a Food Processing Company. There are related Payment of Wages complaints.
The employment began on the 16th of March 2000 and ended on the 28th January 2022.
The rate of Pay was €558.04 for a 39 Hour week. |
1: Opening Issues
Time Limits and related Complaint ADJ-00031615
1:1 Time Limits
The employment ended on the 28 January 2022 and the Complaint was lodged with WRC on the 28 July 2022.
The Respondent employer argued that this was outside the six-month time limit as set out in Section 41(6) of the Workplace Relations Act,2015.
The Complainant argued that it was exactly six months, save for 24 hours, and due to pressures arising from his other complaint ADJ 31615, he was requesting an extension as provided for in Section 41 (8) – “Reasonable Cause.”
Having heard the Oral Arguments and the Written Submissions the Adjudication decision was to allow the six-month extension.
The Hearing proceeded on this basis.
1:2 Adj-00031615
Adj -000 31615 was a series of three complaints under the Organization of WorkingTtime Act,1997 issued on the 10th August 2023
At the date of this Hearing (the 28th April 2023) the Decision on Adj 31615 had not issued.
The issues referred to in ADJ 31615 (Leave, Public Holidays, and Sunday Premium) have been comprehensively dealt with by that recommendation.
Accordingly, it is not proposed to re investigate these issues, albeit under the Payment of Wages Act,1991, in this Recommendation. There are matters already decided.
2: Summary of Complainant’s Case:
2:1 Payment of Wages Act,1991 - 00051983-002 This matter has been disposed on in Adj 31615 as stated above. 2:2 Unfair Dismissals Act,1977 – CA- 00051983-003 & CA-00051983-004 These are Duplicate complaints and accordingly this Adjudication will focus on CA--00051983-003 2:3 Unfair Dismissal Act ,1977: CA-00051983-003 The Complainant gave an oral testimony supported by extensive documentation. In this case he argued that he had taken a number of cases to the WRC and WRC Inspection regarding Wage and Holiday issues at the employer in late 2019 and early 2020. He had been successful in the Labour Inspection complaint. Other Workers, of non-Irish Nationality, had approached him and he decided to make a Collective Complaint and began circulating a petition for Workers to detail their complaints and to sign. He called it a Group Appeal Document. He had informed his Manager, Mr JS, of what he was doing. On the 12th of November 2022 the Complainant was invited to a meeting with Mr C and Mr L. He was immediately placed on Paid Suspension pending an Investigation. He was accused of circulating a Document in contravention of the Works Agreement and Failure to Exhaust the Grievance Procedure. The Investigation found against him and there was a Disciplinary meeting on the 28th January 2022 where he was immediately dismissed for Gross Misconduct. An Appeal was heard on the 8th March 2021 -result communicated on the 25th March and was unsuccessful. In the Dismissal letter of the 31st January 2022 it was stated that he was Dismissed for Gross Misconduct for Behaviour in Breach of the Works Agreement and Conditions. The Complainant summed up his case as one where he had at all times acted in good faith, he had told Manager, Mr JS , what he was doing, and he was imply acting to assist fellow colleagues who could not get assistance from the recognised Trade Union. His dismissal was completely dis proportionate and outside all concepts of reasonableness. |
3 Summary of Respondent’s Case:
3:1 CA- Unfair Dismissal Act ,1977: CA-00051983-003 The Respondent gave Oral testimony from Ms W, HR Executive, supported by Mr C, the HR manager. A written submission was received and relied upon. The Respondent argued that the Employment was a large operation with over 400 staff on the site. There is a comprehensive Work’s Agreement in place with SIPTU that has worked well over the years. Industrial Relations difficulties that may arise are processed via the Agreement without issue. The Complainant is not a member of any trade Union. He was organising Work’s Petition on a Group Claim. This action is completely at variance with the Plant Agreement and would. “jeopardise the existing harmonious Company/Union relationship, which has been in place within BWG Foods for many years and is essential for the continuing success of the company and employees. All normal employment procedures were followed in the Investigations Stage, all details were shared with the Complainant, he was offered full representation which he declined, and all documentation was in order. The Appeal stage was equally properly conducted. There was no doubt that the Complainant was fully aware of these actions in seeking to make /organise Employee complaints outside of the provisions of the Works Agreement and he was the “author of his own misfortune”. Good and stable industrial relations on a big site is a very valuable commodity and the Complainant was placing that under jeopardy – a serious issue that warranted Dismissal for Gross Misconduct. |
4: Findings and Conclusions:
4:1 The Law. – Natural Justice In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice. In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct: “1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant. 2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion. 3. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment. 4. The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered. 5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee. Put very simply, principles of natural justice must be unequivocally applied.” More recently SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures has codified these Natural Justice principles into a set of guidelines. 4:2 The Role of the Adjudicator There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto rerunning of a Disciplinary case. The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445 “It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295: “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.” The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length. The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978. The Tribunal applies the test of “reasonableness” to 1. the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and, 2. whether the procedures adopted were fair and reasonable and 3. the reasonableness of the conclusion arrived at by the Respondent. 4:3 4:3:1 Natural Justice and Procedures – Code of Practice SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures. In this case there was comprehensive written evidence of meetings, letters of invite, witness statements, discussions regarding Representation rights and extensive post meeting letters – the Dismissal letter of the 31st January 2022 and the Appeal Decision letter of the 25th March 2022. It was clear that the Letters of Invite clearly stated the case to be considered at all stages and evidence was copied in advance to the Complainant. The key Decision-making Managers involved, although Respondent employees, were sufficiently professionally Independent. There was no basic dispute over the facts of the case between either party. In the final analysis the Adjudication process has to be one that considers the “Reasonableness” of the Dismissal decision. 4:3:2 The Reasonableness Question in a Dismissal. Section 6 (7) (a) of the Unfair Dismissal Act,1977 is quoted below. (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so— (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 referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act . (Underlining by AO) Mr Justice Flood quoted above in Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 is also worth noting. 5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee. Put very simply, principles of natural justice must be unequivocally applied.” Justice Flood also noted in the quote above “1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.
However, and notwithstanding the Legal precedents the evidence has to be examined. 4:4 Consideration of the Evidence presented. In this case all procedures were properly followed. All correspondence was proper and there were no obvious shortfalls. The dismissal was not disputed. The Complainant was afforded all representational rights which he choose not to avail of. The only issue is the Dismissal penalty itself. In the Works Agreement the “ Works Agreement and Conditions of Employment” which was presented in evidence at Page 9 -examples of Gross Misconduct- there is an extensive – non exhaustive list of 17 possible offences. They follow the usual patterns of Theft, Assault, Wilful damage etc. The final one listed is Failure to follow or exhaust the Grievance Procedure which was relied upon by the Respondent. The actual action of the Complainant was organising/promoting a Group Complaint via a petition among some of his colleagues. The recognised Union, SIPTU, was not involved. The Adjudicator or Tribunal has to be conscious of the legal precedents of not substituting themselves for the Employer and their proper decision-making rights. The Oral testimony from the Employer/Respondent clearly pointed to their legitimate fears of the Complainant undermining the existing Representational structure in the Plant that had worked well. The Complainant repeatedly made the allegation that the Union, in this case SIPTU, had not made any efforts on behalf of either himself or his non-Irish colleagues. He maintained that there was a disconnection between SIPTU and the Non-Irish workers. Apart from this being a hearsay allegation it is a matter for another Forum. The Complainant was acknowledged to be a good worker with no obvious issue save a tendency to raise what transpired to be legitimate Grievances. When referenced against the listed offences in the Gross Misconduct Section of the Agreement, Dismissal was an unusual Management response even if taken in the legitimate Respondent belief that it was “protecting the Plant Agreement”. Gross Misconduct was defined as the usual issues in most agreements – Physical Assault, Theft, Deliberate refusal to obey a Supervisor, Failure to follow Safety/Health and Hygiene procedures, Intoxication from drugs or Alcohol, Bullying or Harassment and not following the Grievance Procedures, being examples quoted. The Unfair Dismissal Act,1977 and a range of other Employment Legislation gives extensive protections to employees involved in legitimate Trade Union or Industrial Relations activities. The activities of the Complainant, in this case, fall clearly into this area but crucially not within the ambit of the Plant union, SIPTU. Being careful not to overstep the Adjudication mark here and give a “substitute finding” it was unusual that one of the lesser Penalties in the Agreement such as a Written Warning were not considered more appropriate. There was no doubt that the Complainant by his activities which were all legitimate WRC references etc was a considerable irritant to the Management. However, the Plant agreement and the extensive local procedures should have been robust enough to adapt and find a means of including the Complainant and his Non-Irish colleague activities. 4:5 Summary conclusions In final summary, having reviewed all the context and the evidence both Oral testimony and written submissions, to Dismiss the Complainant from his Employment in this situation was an excessive Employer response. It did not appear to fall within the “Band of Reasonableness”. Accordingly, a finding of an Unfair Dismissal has to be made on the grounds of a Disproportionate Employer /Respondent response.
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5: Decision:
Section 41 of the Workplace Relations Act 2015 and the Payment of Wages Act,1991 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.
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.
5:1 Payment of Wages Act ,1991 CA-00051983-002
The issues of complaint here have been addressed in ADJ-00031615 and as such are Matters already Decided. Accordingly, no finding is made on these complaints.
5:2 Unfair Dismissal act,1977, CA-00051983-003 and CA-00051983-004
Both complaints are identical in substance. CA-00051983-003 was taken as the representative case.
Fining of Unfair Dismissal was made on the grounds of a Disproportionate Decision.
5:3 Redress
The Complainant was out of work for six days and as such can only be normally awarded a maximum of four-week renumeration. Section 7(3) of the UD Act,1977 “Financial Loss” cannot realistically be said to apply in relation to any additional payments.
The Complainant requested Re-Instatement or Re-Engagement as his preferred redress.
Having listened to the Oral testimony from both sides it was clear that these options would present challenges to all Parties.
None the less any issues would not be insurmountable once all parties to the Works Agreement positively engage.
Accordingly, under Section 7 (1) {b] quoted below.
Redress for unfair dismissal.
7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following F49[the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
An Award of Re-Engagement is made.
The date of this Re Engagement is 1st December 2023 – the intervening period to be devoted to discussions among all Parties to the Works Agreement to reach.
“A position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances”.
Dated: 06th October 2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Unfair Dismissal, Proportionality |