Complainant

Respondent

Parties

Daniel Holland

Tipperary Sustainable Food Company  T/A James Whelan Butchers

Representatives

Mr Vivian Cullen SIPTU-Trade Union

Mr Owen Keany BL instructed by Ms Elaine Kelly ByrneWallace Shields LLP

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

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05/06/2024

This matter came before the Workplace Relations Commission dated 05/06/2024 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1977 claiming unfair dismissal by a Complainant who does not have at least 12 months service.  The Complainant is grounding his claim on Trade Union Membership.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 14/03/2025.   

The Complainant at all material times was employed as a butcher by the Respondent.  The Complainant worked 40 hours per week for which he was paid €787.50 gross weekly.    The Complainant commenced employment with the Respondent on 25/04/2023 and his employment terminated on 23/04/2024 by reason of dismissal with immediate effect. 

Both parties provided helpful written submissions in advance of hearing for which I am grateful.   

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As per WRC complaint form

The Complainant submits that over the course of his employment he raised various issues / concerns regarding pension / bonus schemes, career development and promotion.  The Complainant submits he tried to address his concerns with HR in a meaningful way but received no tangible response.  The Complainant submits he also communicated with Darran Walsh but to no avail.  The Complainant submits he was asked to attend a meeting on 23/04/2024 and his understanding was it was to address a promotion.  The Complainant submits he was dismissed on the grounds of ‘misalignment’.  The Complainant submits he asked what the term misalignment meant and he was refused a response.  The Complainant submits he believes he was dismissed because he informed HR in an email that he was pursuing and registering his complaints with SIPTU-Trade Union.  The Complainant submits this was done prior to his meeting in April 2024 when he was dismissed.  The Complainant submits he believes he was dismissed due to Trade Union membership / activity. 

Summary of written submission

It is submitted the Complainant was on probation for 6 months and he passed with flying colours.  It is submitted that on the balance of probabilities the termination of the Complainant’s contract of employment by the Respondent was an unfair dismissal based solely and on the balance of probabilities due to his Trade Union membership / activity.  The Complainant submits the guise of ‘misalignment’ is a false narrative and is an unfair dismissal, is amorphous and misdirection.  It is further submitted it is an attempt to obfuscate the situation and it is submitted the Respondent’s assertion rational and dismissal for misalignment is a ‘trojan horse’ an orchestrated diversion for the Complainant being dismissed. 

Summary of direct evidence of Complainant (on oath)

The Complainant outlines that he has spent 25 years in the livestock industry and he owned his own shops in Australia.  The Complainant commenced employment with the Respondent on 25/04/2023 and he was dismissed on 23/04/2024.  The Complainant submits it was all ok for the first 6 months and the first concern was the pension scheme and how could he join.  The Complainant submits the response was I’ll get back to you.  The next thing was the bonus gift of time and the reduction from 45 hours back to 40 for which the criteria was attendance.  The Complainant submits he requested a breakdown of the mechanics of the bonus scheme.

The Complainant submits performance review was in September and pay review in November and he went to the store manager to see if he could sort out the pension and he was told he was not eligible for pension because he had to be there 3 years.  The Complainant submits he had been told he had to be there 6 months.  The Complainant submits he had a sit-down meeting in January and asked when the pay review would be and he was told he had already received 18% and he thought this was a bonus scheme and not a pay increase. 

The Complainant submits he was offered a role as a Butcher Manager in January subject to a detailed job description and a salary package in writing.  The Complainant submits Siobhan from HR sent an email saying the gift of time should be deemed a pay increase and the staff discount card should be seen as a pay increase.

The Complainant submits he joined SIPTU in January 2024.

The Complainant submits he had no other option but to email as he couldn’t get clarity with reference to his email of 29 March 2024. 

The Complainant submits his understanding of the meeting on 23 April was it would be about the promotion – the career progression.  Darren Walsh attended the meeting to take notes and D McG was there.  The Complainant submits he was told his employment was terminated effective immediately.  The Complainant submits he asked why and he was told misalignment and when he asked what that meant they refused to tell him.  The Complainant submits there was no opportunity to appeal.

Summary of cross-examination of Complainant

The Respondent representative outlines that he will start with the basics and asks the Complainant to confirm that he commenced on 25/04/2023 and he was terminated on 23/04/2024 which is confirmed by the Complainant.  It is put to the Complainant that as he owned two shops in Australia he would have experience of interacting with colleagues to which the Complainant replies yes.  The Complainant is asked if he would have a sense of the boundaries of respectful communications to which the Complainant replies yes. 

The Respondent representative makes reference to acceptable norms in terms of communication in a workplace setting and makes reference to the emails to Ms Siobhan Keane who holds a most senior position with the company which the Complainant accepts (that she does hold a senior position).   The Complainant is asked if it is his position that the tone and content of the various emails he had sent was appropriate and respectful to which the Complainant responds he thinks so yes. 

The Respondent representative makes reference to emails and asks the Complainant if it was his view that he had been told on the phone he would have access to the pension scheme after 6 months and he confirms yes that Siobhan told him at interview. 

It is put to the Complainant that he wasn’t told this by Siobhan Keane as she didn’t interview him and is asked if he accepts that Siobhan Keane didn’t interview him to which the Complainant responds correct.

It is put to the Complainant that Siobhan Keane’s position is that she never said anything to him about pension and asks if he accepts access is after 36 months to which the Complainant responds it is not set out anywhere.  It put to the Complainant that he had no knowledge pension crystalises after 36 months to which the Complainant responds no. 

The Complainant is asked to confirm an email sent at 10.05am on 19 March 2024 followed by an email on 22 March at 8.33am to which he receives a reply at 11.57 to say Darren will be in contact with him to which the Complainant responds he did get a reply albeit after a second email and it was abnormal that he would have to send a follow-up.  The Respondent representative makes reference to the meaty issues in the email of 19 March and asks if it was the Complainant’s issue that she hadn’t acknowledged it to which he replies yes. 

The Complainant is asked if he is really saying the content of the email sent on 22 March 2024 is a respectful and appropriate way to deal with a colleague and sets out the content:

Thank you for your reply to my email.  All be it a confirmation of receipt.  I am somewhat concerned and complexed as to your response or lack of to my original email, an email that is in direct relation to an email received from your team at People and culture.  The relatively simple questions asked directly to you, were relating to conversations directly from yourself and emails sent from your department.  And furthermore concerning to myself is the fact that I have reached out to you as the head of the people and culture team for clarity on these matters and the only offering as any form of answer is that Darran will be in contact to discuss.  I find it truly unethical that this very simple request to yourself through the correct channels has now become a back alley sideways conversation with someone outside of the people and culture department.  I truly hope you can understand my concern in this matter.  Kind regards.” [sic]  

The Complainant submits he does not see it as outside the bounds and he does not see it as unacceptable.  It is put to the Complainant that within 2 hours of getting a response he is writing to her telling her he find it truly unethical to which the Complainant responds he did find it unethical and that he had asked a question and it was pushed sideways and he found it hard to understand why she couldn’t answer simple questions.

The Complainant is asked if he stands over his statement about back alley conversations to which the Complainant replies yes and that Darren stonewalled him every time.

It is put to the Complainant that he is calling her actions unethical and asked to clarify whether he is attributing that label to the actions or to the person and it is put to the Complainant that he is now trying to distance himself to which he replies he doesn’t see anything wrong with what he said in the email. 

The Complainant is referred to an email in which he stated that Siobhan Keane and Darren Walsh have not demonstrated honesty in their interactions with him and is asked if this remans his position to which he responds yes correct. 

The Respondents put it to the Complainant that this is an extraordinary thing to say and a stop the lights moment in an employment relationship and asks the Complainant if he stands over the content of an email to Sobhan on 29 March in which the Complainant makes reference to something sinister and unlawful going on and taking advantage of migrant workers and is asked if he stands over the contents of that email to which he replies that is what it seems to be and he doesn’t know how he could see it in any other manner.

The Complainant is asked if it ever occurred to him that he might have played a part in the decision to let him go to which he replies that it was because he raised queries and he went to his union and the catalyst was the union membership.  It is put to the Complainant that this is now unclear as he said it was because he raised queries and went to his union and it is put to the Complainant that this is a retro-fit because he didn’t have the service.  It is put to the Complainant that it was communicated to him that the reason was misalignment and that he didn’t know the precise reason to which he responds he asked for an explanation.  It is put to the Complainant that he had a light bulb moment then and he knew it was for being a member of a trade union to which the Complainant responds that was the only difference in the emails when he said he was going to his union. 

The Complainant is asked if he said it to them at the termination meeting it was immediately clear to him that was why he was being terminated to which he replies it never occurred to him.  The Complainant is asked if the only evidence on which he relies is the sentence in the email which provides … “I am informing you of my intent to register multiple complaints with the WRC.  Furthermore I will also be reaching out to my SIPTU representative [redacted] and forwarding all necessary information I have on” to which he replies yes.

The Respondent confirms with the Complainant that he commenced employment with [redacted] on 15 July on a higher wage after 11 weeks of unemployment. 

Summary of closing submission of Complainant

The Complainant representative submits the Complainant was dismissed wholly or mainly as a result of trade union membership.  The Complainant representative submits the company culture negated all their member’s rights and that the Respondent has obfuscated the situation.  There was no appeal offered to the Complainant.  There was no representation by a colleague or his trade union representative offered to the Complainant.  The Complainant representative submits there was a breach of the Complainant’s rights and there is nothing in their policy about misalignment.

The Complainant representative submits this was a Trojan horse and they circled the wagons and wanted him out. 

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Overview of written submission of Respondent

Preliminary matter

The Respondent said the Workplace Relations Commission has no jurisdiction to hear the complaint since it arises from a contract of employment that was less than one year’s continuous services in duration. It said there are absolutely no links whatsoever between the Complainant’s dismissal and any alleged trade union membership as contended by the Complainant.

The Respondent submits the burden of proof in regard to his claim that he was dismissed because he was a member of a trade union lies on the Complainant. 

The Respondent submits the Respondent witnesses will give evidence on oath at hearing that if indeed the Complainant was in fact a member of a Trade Union or excepted body this formed no part of the Respondent’s decision to dismiss the Complainant. 

Summary of direct evidence of Respondent witness Ms Paula Thornton (hereafter PT) on oath

The witness outlines she is the GM of the Respondent company and she reports in directly to the CEO.

The witness outlines the Complainant reported in to the store manager who reported in to the COO Mr Darran Walsh who in turn reports in to her.  PT outlines she is 9 years with the Respondent company which started in the 1960s in Clonmel and up until 2010 was just one shop.  The witness confirms there are now 14 shops nationwide and just under 300 employees.

The witness submits there is a deeply embedded culture and ethos in the company and they pride themselves on how they hold themselves in terms of communications and tone of voice.  The witness submits she would have interviewed the Complainant over Teams and Darran would have conducted the face to face interview. 

The witness explains the gift of time concept as arising out of when traditionally retail workers had a 45 hour week and they were seeking to reduce this to 40 without any financial impact and this was achievable by turning up for work and doing a fair share of weekends.  The witness confirms this was rolled out in 2023.  The witness outlines that with regard to pension entitlement the qualifying period for managers is 6 months and for team members it is 36 months. 

The witness submits she became aware of the emails after the first couple in the context of the tone and content and the manner in which her colleague was addressed.  The witness submits she had concerns about the manner in which her colleague was being called into question.  The witness submits there were discussions about the tone of the emails and the content and the way things were being questioned and submits this would not be the norm in their company. 

Reference is made to the last email of 29 March and the witness submits that was looked at but not only that one.  The witness submits the whole series of emails was looked at and they could not see an alignment between the tone and content of those emails and the culture of their business. 

The witness submits the decision was made between her and Darran Walsh and the fact he said he was a member of a trade union wouldn’t even have come into their realm of thinking.  PT submits they formed the view the relationship was over when they looked at the content and tone of the emails.  The witness submits they had never before been to the WRC. 

Summary of cross-examination of Respondent witness PT

The witness is asked if motivation of staff is important to which she responds yes.   The witness is asked if she believes her organization is committed to staff to which she responds absolutely.  The witness is asked if she believes staff should be valued to which she responds absolutely.  The Complainant representative confirms with the witness that it was a termination that involved immediate dismissal with payment in lieu of notice. 

The witness confirms it was she and DW who sanctioned the dismissal.  The witness is asked if she agrees that fair procedures are very important to which she replies yes and that a disciplinary procedure should be conducted fairly to which she replies yes.  The witness is asked if she is familiar with SI 146 of 2000 which relates to a process that leads from allegations to a process and it is put to the witness that the Respondent has circumvented all those important steps.  

The witness is asked what evidence there is of misalignment to which she replies the content and tone of the Complainant’s emails.  The witness is asked to what does the tone convey and to describe the tone.  The witness makes reference to the email of 22 March and the Complainant’s reference to a “back alley sideways conversation” and submits this remark sets the tone of the emails. 

Summary of direct evidence of Respondent witness Mr Darran Walsh (hereafter DW) on oath

DW outlines that he is the Head of Operations at the Respondent company.  The witness outlines that he would have had a limited level of interaction with the Complainant.  The witness was aware that the Complainant had made assertions about pension, pay rises and the gift of time and that they weren’t responded to.  The witness submits the Complainant asked him about pension about 6 to 8 weeks prior to the event and that he had bumped into the Complainant and he had told him it was 36 months and the Complainant said he didn’t agree with that and that it was crazy.  Having regard to the offer of a promotion the witness submits the Complainant came to them in January looking for a pay rise and a scoping out conversation had taken place about a butcher manager position. 

DW outlines he was familiar with the emails and the escalation of the attitude of the Complainant was discussed the more aggressive it became, and that the relationship had broken down at that stage.

DW outlines the invite to the meeting on 16 April to dismiss was not titled “career progression” it was titled “meeting”.  The witness submits career progression was no longer available by that time and they were moving to termination.  The witness submits the relationship had broken down and the emails and their content did not sit well with him personally. 

The witness submits the Complainant’s dismissal was in no way linked to the trade union and this was never referenced in any conversation he would have had with the Complainant.  The witness submits it was a surprise to him when he saw this. 

Summary of cross-examination of Respondent witness DW

The witness is asked if the Complainant was invited to a meeting which lasted 10 minutes which he confirms.  The witness submits the Complainant asked him one time for a reason for his dismissal and he submits the reason given was misalignment.  The witness does not recall giving the Complainant the right of appeal.  The witness submits the relationship had broken down after the emails and the communications which were against their company culture. 

Summary of closing submission of Respondent

The Respondent submits the parameters of jurisdiction here are clear and narrow and that the Complainant can only succeed on the basis set out in complaint form that he was dismissed wholly or mainly by reason of trade union membership.

The Respondent submits this is the binary consideration and everything else is noise and falls outside of the jurisdiction of the Adjudication Officer.  It is submitted the fairness of the process etc. is irrelevant.

The Respondent submits there is nothing before the Adjudication Officer that indicates that his trade union membership was the reason for his dismissal apart from a reference in passing.  It is submitted that a couple of the words used by the Complainant in his emails to the Respondent are shocking in the context including truly unethical, back alley sideways conversations, sinister actions and then a casual reference that he is going to SIPTU and it is conceded by the Complainant that this is all he has.  The Respondent representative submits that Complainant’s representative reference to a Trojan horse is a Freudian slip and that it the assertion by the Complainant that his dismissal was because of his trade union membership is the Trojan horse here. 

The Respondent representative submits this is a retro fit and that fairness and process do not fall to be considered in this claim.  The Respondent representative submits the reason the Complainant was let go was the manner in which he was communicating with senior people in the company and that is the only logical explanation here. 

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In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing. 

Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

The Relevant Law

Section 2(1)(a) of the Unfair Dismissals Act states the Act shall not apply to:

“an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act”

The Act sets out exceptions to this service requirement and states: “Section 2 (1) … shall not apply to a person … who is dismissed if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of section 6.” 

The Complainant does not have the service and is relying on section 6 (2) which states:

“the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)       The employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer to so engage,”

Section 14 of the 1993 amendment to the Unfair Dismissals Act removes the requirement for a person claiming that their dismissal arose from trade union activity to have completed one year of service with their employer.

I refer to the decision in Michael Reid v John Oxx [1986] ILT 4, 207, where it states that, “…where aperson is dismissed for trade union activity the necessary qualification of a year’s employment so as to qualify for redress under the Act is dispensed with but at the same time the presumptions under subsection (1) and (6) of the section putting the onus of proof on the employer shall not then apply.” [emphasis added]

It follows therefore that the legal burden is on the Complainant to show that his dismissal was wholly or mainly on the ground of trade union membership / activity.  The presumption that the dismissal is unfair does not apply. 

In this case, I am not investigating whether the dismissal was unfair in and of itself.  I have to consider if the dismissal resulted “wholly or mainly from” the Complainant’s trade union membership or activities.  [emphasis added]

There is no dispute between the parties that the dismissal occurred.  However, the reasons for the dismissal are disputed by the parties. The Complainant submits that he was dismissed due to his trade union membership / activities.   The Respondent rejects the claim and argues that the Complainant was dismissed due to the tone and content of emails he sent to a senior member of management of the Respondent company and his misalignment with the culture of the company. 

I am satisfied on review of the evidence that there were concerns about the Complainant’s communication style particularly around his direct engagement with senior management.  I am of the view the tenor and frequency of the emails as exhibited demonstrated an escalation that was on an inevitable trajectory which was destined to only ever culminate in one outcome for the Complainant and that outcome was dismissal. 

I am satisfied on any reasonable and objective analysis of phrases in the email communications from the Complainant to an individual in a senior management position in the Respondent company including unethical; back alley sideways conversations; treated with such little honesty or integrity; massive issue with dishonesty and lack of integrity; something more sinister and even unlawful through advertising false benefits; and intentionally misleading is likely to have been considered by the Respondent to have impugned the employment relationship between the parties to such an extent that it was damaged beyond repair. 

I am satisfied on the balance of probabilities that it was for this reason the Complainant was dismissed and not because of his trade union membership or activities.  I conclude that the Complainant’s trade union membership or activities was not the most important factor in the parting of the ways between the parties. 

For completeness, I note the Complainant did not make any mention of his employment being terminated for reasons of trade union activities at the meeting on 23/04/2024.

The Complainant’s one and only reference to a trade union and upon which he relies to ground his claim is in his email on 29 March where he states he will be “reaching out to his SIPTU representative and forwarding all necessary information he has on.”  It could be argued that this may have been a factor in his dismissal but I find on the balance of probabilities that this was by no means the most important factor in his dismissal.   

Accordingly, I am satisfied that the dismissal of the Complainant did not result wholly or mainly from the employee's membership of a trade union or his engaging in activities on behalf of a trade union, as defined in section 6(2)(a) of the Unfair Dismissals Act set out above. 

Accordingly, I find that the complaint is not well-founded.

There is much I could say about the manner of the dismissal in the within case but in this I am constrained by the parameters of my jurisdiction.       

For the reasons set out above I am unable to find that the Complainant has discharged the burden proof required to show that his dismissal was wholly or mainly on the ground of trade union membership / activity.   

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For the reasons set out above I decide this complaint to be not well-founded. 

Less than 12 months service; union membership;