Complainant

Respondent

Parties

Jose Antonio  Viana Pereira

Boyne Valley Meats Ltd.

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Pretty Ndawo,  Migrant Rights Centre Ireland

David Brady

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-00063157-001

29/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00063157-002

29/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063157-003

29/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00063157-004

29/04/2024

The Complainant, a Brazilian National worked as a deboner in the respondent Meat plant from 30th of June 2022 until his dismissal on 6th of January 2024.  The complainant submitted a claim of Unfair dismissal to the Commission on 29th of April 2024 alleging that he was unfairly dismissed without any proper procedures.  He also submitted a claim in respect of a failure to provide him with minimum notice or with correct holiday pay on cessation of employment.   The complainant also submitted a claim of discrimination on the grounds of race.

The respondent disputes the claims alleging that the claimant was dismissed for gross misconduct on the 6th of January 2024.

The hearing was conducted with the assistance of an interpreter.

The Complainant, a Brazilian National worked as a deboner in the respondent Meat plant  from 30th of June 2022 until his dismissal on 6th of January 2024.  The complainants’ duties involved deboning meat in the Respondent’s meat processing facility.    He  submitted a claim of Unfair dismissal to the Commission on 29th of April 2024 alleging that he was dismissed without any proper procedures. 

The complainant has also submitted a claim in respect of a failure to provide him with payment in respect of the minimum notice period.

The complainant submits that he did not receive all of his outstanding holiday pay following the cessation of his employment.

The complainant has also submitted a claim of discrimination on the grounds of race alleging that the respondent told him to go ‘back to Brazil ‘.

The respondent disputes the claims alleging that the claimant was dismissed for gross misconduct on the 6th of January 2024 after he pointed a knife at the respondent in a threatening manner while shouting aggressively at him.

The respondent submits that he instructed the complainant and other workers that the bones needed to be cleaned properly following which the complainant became aggressive and shouted at him and approached him while pointing a knife at him.  The respondent submits that he felt threatened and that he told  the complainant a number of times to go back to his workstation before eventually telling him to go home.

The respondent submits that the complainant had previously been involved in other aggressive incidents and had been given a verbal warning over his behaviour.

The respondent submits that the complainant was dismissed for gross misconduct and so there was no entitlement to minimum notice.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00063157-001

29/04/2024

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that 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 to 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 statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the 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 (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides 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 as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (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 S14 (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.

The complainant in this case has submitted that he was unfairly dismissed on 6th of January 2024 without any proper procedures. 

Witness for the respondent Mr. B advised the hearing that the complainant was dismissed for  gross misconduct after he had aggressively pointed a knife and shouted at Mr. G after being instructed by him to clean the bones of the meat as he was employed as a meat deboner.

The complainant advised the hearing that an incident occurred on the 6th of January 2024 which resulted in his dismissal.  

Mr. G advised the hearing that he had arrived at the workplace on the date in question and he had begun cutting up carcasses and placing them on the conveyor belt for deboning.  Mr. G stated that he instructed the complainant to clean the bones following which the complainant started shouting at him and approached him a number of times with a knife in his hand while pointing the knife at Mr. G.  Mr. G advised the hearing that he told the complainant repeatedly to go back to his workstation following which the complainant returned to the line and then began shouting in Portuguese at Mr. G and at other workers.  Mr G stated that he told the complainant that if he was not happy he could go home.  Mr. G stated that  the complainant then approached him with a knife in his hand while pointing the knife at him and shouting aggressively at him in Portuguese.  Mr G stated  that he felt threatened by the complainant’s behaviour and had told him repeatedly to return to his workstation before finally telling him to go home.   Mr, G stated that he even left the room and went to another room and told the complainant that he was going to call the guards if he didn’t leave.   Mr. G stated that he felt threatened by the complainant as he was aggressively shouting at him while approaching him and pointing a knife at him.  Mr. G stated that he waited a while before going out of the room to make sure the complainant was gone from the changing area Mr. G advised the hearing that he had called the guards as the complainant would not leave but stated that he cancelled them once the complainant left the premises. Mr. G added that this was not the first time the complainant had behaved aggressively citing other incidents of aggression and adding that the complainant had previously received a verbal warning.   The complainant denied that he had received a verbal warning.  

The complainant advised the hearing that Mr. G had approached the line on the day in question  and complained that the complainant and others were not cleaning the bones.   The complainant advised the hearing that Mr. G then began to  put carcasses onto the conveyor belt for the workers to clean the bones.   The complainant stated that Mr. G did this in a manner which left too little room on the conveyor belt and that the complainant had objected to this telling Mr. G that it was not good.   Th complainant states that he said this to Mr G  a number of times and that Mr, G told him to go back to his workstation.   The complainant in his evidence on this was inconsistent in his account of what was said by Mr. G stating that he told him to go back to his workstation and then told him to go home but in later evidence stated that Mr. G told him to go back to Brazil. 

 Mr. G at the hearing denied that he told the complainant to go back to Brazil or to go home to Brazil asserting that he told the complainant a number of times to go back to his workstation as the complainant was at the time working on a meat deboning line.    

The complainant submits that on Sunday 07/01/24 he received a message from his manager, Mr E advising him that Mr G does not want him to work for the company any longer.  The following day he received another message from  Mr E advising him that he needs to vacate the company’s accommodation by 13/01/24.   On Friday 12/01/24, the Claimant received a letter signed by company manager, Mr C, confirming he was not permitted to return to work, and he needed to vacate the company’s accommodation by the following day 13/01/24.  The complainant left the accommodation on 13TH of January 2024.

In considering this matter I note that there are conflicting accounts of the wording which was used on the day in question.    However, I note that the accounts of the incident itself do not differ greatly between the parties.  I note that the respondent claims that the complainant approached him repeatedly while being told repeatedly to go back to his workstation .  I note that the respondent evidence however focuses on the fact that the complainant was holding and pointing a knife at him when he approached him.  I note the respondent’s position is that he felt threatened by the complainant and repeatedly told him to return to his workstation.  

I also not that there are many inconsistencies in the complainants account of what happened.  

 In considering the evidence provided I note that the complainant was working on a deboning line and I consider that it would have been very disruptive to have him leave his position while working as this would have had a serious impact on the line and on that date and on other days where the complainant would have been rostered to work.   I note that the respondent position is that he felt threatened by the complainant and that he states that the complainant was shouting at him aggressively while pointing a knife at him.  

I must consider that the respondent as director of the company would not take lightly the decision to  dismiss someone there and then thus jeopardising the production line and that any such decision would not have been taken without good reason given that it would have negative consequences for the production line both on that date and going forward. 

Therefore, I must consider that on balance of probabilities the respondent decision to dismiss was must have been taken for a reason and the reason being provided in evidence is that he felt threatened by the complainant’s behaviour and actions which he submits amounted to gross misconduct.

In deciding if the dismissal was unfair, it is not for me to establish the guilt or innocence of the Complainant but rather consider whether the Respondent acted reasonably in the matter of the dismissal. 

The Employment Appeals Tribunal held, in Looney & Co v Looney UD843/1984 that

“It is not for the Tribunal to establish the guilt or innocence of the Complainant, nor is it for the Tribunal to indicate, or consider whether we, in the employer’s position, would have acted as he did in the investigation, or concluded as he did..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 would have done in the same position..”

Accordingly, having considered the evidence adduced, I am satisfied on the balance of probabilities that the decision to dismiss was one which falls under the band of reasonable responses.

Procedures

Notwithstanding the fact that the respondent considered the complainant to be guilty  of gross misconduct and thus liable for summary dismissal, it is still important for an employer to follow a fair procedure.   I note that in the present case no procedure was followed other than to tell the complainant to go home on the day of the incident which was then followed up by an email from his supervisor the next day saying that he is no longer working for the company and then a letter of dismissal on 12th of January 2024.   

Having taken all matters into account, I find that the Complainant’s dismissal was procedurally unfair within the meaning of the Acts.  Accordingly, I find this complaint to be well-founded.

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal

(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 the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation.

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

It is incumbent upon the Complainant to give plausible evidence on mitigation of loss.  The complainant’s evidence in this case regarding  loss and mitigation of losses was sub optimal.

Having regard to the totality of all the evidence presented in this case, including the evidence regarding mitigation of loss and the Complainant’s contribution to his dismissal I award redress of €1,500 as just and equitable compensation for the procedural flaws in his dismissal.

I declare this claim to be well founded and accordingly I direct the respondent to pay the complainant €1,500 as just and equitable compensation for the procedural flaws in the dismissal.

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00063157-002

29/04/2024

 This is a complaint seeking adjudication by the WRC Section 12 of the Minimum Notice & Terms of Employment Act, 1973.  In view of the above finding that the Complainant was unfairly dismissed it follows that he is entitled to payment in lieu of notice. 

The Complainant has worked for the Respondent for just over 1 year and six months and is therefore entitled to one week’s notice pay.

I declare this claim to be well founded and accordingly I direct the respondent to pay the complainant the equivalents of 1 weeks pay in lieu of notice.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063157-003

29/04/2024

The Claimant submitted that he did not use all of his annual leave in 2023 and that his last payslip received from the Respondent indicated that he was owed 60.95 hours of annual leave for which the Respondent was supposed to pay the Claimant €914.25.  The respondent at the hearing stated that it paid the complainant all of his annual leave entitlements.  The complainant advised the hearing  that he only received €373.40 via bank transfer for the corresponding last payslip and that the Respondent lodged €540 less than the amount calculated on the payslip.  The respondent at the hearing disputed this stating that the outstanding amount was paid to the complainant  and providing details of same.  A discussion ensued between the complainant and his representative in an attempt to clarify whether or not he had received the payment in question.   The complainant at the hearing was unsure whether the payment was received. The respondent advised the hearing that the payment was made and gave details in respect of the transaction which had taken place. 

Overall, on balance of probabilities I prefer the evidence of the respondent in relation to this matter.  Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00063157-004

29/04/2024

Section 6 of the Act provides as follows:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a 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) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

 …

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

…….

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

Section 85A of the Act concerning the burden of proof provides:

85A.— (1) 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 burden of proof in the first-place rests with the complainant and requires that the facts relied upon must be proved to the level of balance of probabilities and must be of sufficient significance as to raise an inference of discrimination.  Only when such facts are established by the complainant will the burden of proof shift to the respondent.  The Labour Court in Hallinan v Moy Valley Resources DEC-S2008-025 held that the following must be established by the complainant:

a)      The complainant must establish that he or she is covered by the protected ground.

b)      Establish the specific treatment has allegedly taken place

c)       The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground

The complainant in advancing this claim submits that he was treated less favourably on grounds of his race. 

The complainant advised the hearing that an incident occurred on the on 6th of January 2024 following which he was dismissed without any proper procedures. 

This matter is also the subject of an unfair dismissal claim and so the matter of the dismissal is dealt with in a separate decision under  CA-00063157-001.  The complainant at the hearing stated that this claim of discrimination related to his treatment by the respondent during the altercation which resulted in his dismissal.  The complainant advised the hearing that during this altercation he was told by Mr.  G to “go back to Brazil” .  

 The complainant told the hearing that the comment happened in the context of Mr. G having arrived at the deboning line and complained that the complainant and others were not cleaning the bones.  

Th complainant advised the hearing that Mr. G then began to put carcasses onto the conveyor belt for the workers to clean the bones.   The complainant stated that Mr. G did this in a manner which left too little room on the conveyor belt and that the complainant had objected to this telling Mr. G that it was not good.   The complainant states that he said this to Mr G  a number of times and that Mr, G told him to go back to his workstation.   The complainant in his evidence on this was inconsistent in his account of what was said by Mr. G stating that he told him to go back to his workstation and then told him to go home but in later evidence stated that Mr. G told him to go back to Brazil. 

 Mr. G at the hearing denied that he told the complainant to go back to Brazil or to go home to Brazil asserting that he told the complainant a number of times to go back to his workstation as the complainant was at the time working on a meat deboning line.    

Mr. G advised the hearing that the complainant had repeatedly approached him with a knife in his hand while pointing the knife at him and shouting aggressively at him in Portuguese.  Mr G stated  that he felt threatened by the complainant’s behaviour and had told him repeatedly to return to his workstation before finally telling him to go home.  Mr. G stated that he felt threatened by the complainant as he was aggressively shouting at him while pointing a knife at him.   Mr. G added that this was not the first time the complainant had behaved aggressively citing other incidents, he stated that the complainant had previously received a verbal warning.   The respondent in its defence of the unfair dismissal claim stated that the complainant’s behaviour amounted to gross misconduct for which he was dismissed.

In asserting that he was submitted to less favourable treatment  the complainant conceded that this is not a claim for discriminatory dismissal as the dismissal has been dealt with under the unfair dismissal claim.

Bearing in mind that I have already made a decision in respect of the dismissal I am satisfied that the complainant has failed to adduce any evidence of less  favourable treatment on grounds of race in respect of this incident.   Accordingly, I am satisfied that the complainant was not discriminated against on grounds of his race in relation to this matter.

In advancing the claim of discrimination on grounds of race the complainant also sought to assert that the respondent by threatening to dismiss him was treating him differently on grounds of race as the complainant’s employment with the respondent was linked to a work permit which was only necessary due to the  fact that he is from Brazil. 

In examining the evidence adduced in this regard I am not satisfied that the complainant was subjected to less favourable treatment on grounds of his race.    Accordingly, I am satisfied that the complainant was not discriminated against on grounds of his race in relation to this matter.

 I find that the complainant was not discriminated against by the respondent on the ground of race.