Complainant

Respondent

Parties

Henrique  Telli

Kepak Clonee Unlimited Company (No. 73744)

Representatives

Mr. H O’Donnell, BL instructed by Mr. D Ryan, Ken Kennedy Law

Mr. B Hallisey, BL instructed by Gerald O'Donnell Caulstown Solicitors

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-00062459-001

28/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00062459-002

28/03/2024

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

CA-00062459-003

28/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00063046-001

24/04/2024

The Complainant was employed as a mechanical engineer with the Respondent from the 13tOctober 2021 until the 24 October 2023 when his employment was terminated.  The Complainant contended that he was unfairly dismissed. 

The Respondent denied the allegations and instead submitted that the Complainant’s actions had broken the relationship of trust with the employer and accordingly, following a robust investigation and disciplinary procedure, the decision to dismiss was entirely reasonable in the serious circumstances of the case. 

In his complaint form, the Complainant submitted that he was dismissed by his employer following a period of suspension without proper fair process and procedures being followed and/or considered, no follow up investigations during the disciplinary process in relation to health and safety complaints made by him in respect of unlawful instructions provided by his supervisor, no further training and/or learning was provided, despite requests being made and an oppressive and unfair disciplinary process was carried out by his employer without following their own policy and procedures correctly, resulting in an unfair dismissal. 

The Complainant submitted that he was employed by the Respondent as a mechanical engineer on or about the 13 October 2021.  He submitted that on or about the 4 August 2023 he received a letter of suspension from Mr. Liam Grogan, Operations Manager.  The letter stated that the suspension was “pending an investigation into your conduct and performance” and that “it has been alleged that on the following dates below, that you signedand confirmed completion of work orders, where the work orders appear not to have been completed”.  The letter further alleged as follows:

“It is also alleged that on the 28 March 2023 that you failed in your duty to safely carry out works on a steam valve that resulted in an explosion which is currently under health and safety investigation. It is alleged that you failed to follow the holiday process and secured flight tickets before having your holidays authorised by your line manager”. 

The Complainant was invited to a disciplinary meeting by way of a letter dated 10 August 2023.  On the 11 August 2023, Ms. Annemarie Byrne, conducted an interview with the Mr. Fernado Da Silva, Maintenance Office Administrator.  The Complainant only received information and the notes of this meeting with the disciplinary pack on the 6 October 2023.  On the 14 October 2023 the Complainant attended an investigation with Ms. Annemarie Byrne and Ms. Iraelma Diaz.  The interview records that Ms. Diaz was present as a note taker/translator.  The meeting was to be concluded in line with Kepak’s formal disciplinary policy and procedure. 

At the meeting Ms. Byrne repeatedly referred to CCTV during the course of the 14 August 2023 interview; however, the CCTV was never shown to the Complainant and further it appears that Ms. Byrne herself did not view the CCTV and her references to it are based on an unknown employees purported viewing of the CCTV, which it is submitted was hearsay evidence.  The Complainant submitted that it was not clear who prepared the transcript, how it was prepared and for what purpose.  In that context the Complainant submitted that the transcript was hearsay evidence and further noted that he was never provided with the CCTV and that no witnesses at the disciplinary hearing were ever called in respect of the CCTV or the CCTV transcript.  The Complainant submitted that it was entirely unclear who watched the CCTV. 

The Complainant submitted that on page 12 of the interview, Ms. Byrne put the following to the Complainant, “Danny says that you were spoken to before about spending too much time in the canteen, being on your phone when you should be working but yet you are saying that you are overloaded?”  The Complainant noted that this was an allegation that was never previously put to the Complainant and to which he had no notice.  He submitted that it was not clear where this statement came from.  The first recorded interview with Ms. Byrne and Mr. Graham occurred on the 28 August 2023, however the Complainant submitted that it was clear from the interview notes of the 14 August, that Ms. Byrne had previously talked to Mr. Byrne and was purporting to introduce hearsay evidence of what Mr. Byrne had said.  The Complainant noted that this was a clear breach of fair procedures. 

The Complainant further noted that on page 12 of the interview, Ms. Byrne referred to having emailed Mr. Anthony Galvin in Portlaoise as part of her investigation.  The Complainant noted that it was not clear why this action was taken, or to which area of the investigation this related.  The Complainant noted that the investigation was entirely without focus and was in essence a “fishing expedition” and the reference to Mr. Galvin and a further email showed this.  The Complainant noted that there was no record of any interview having been conducted with Mr. Galvin and Mr. Galvin was never called as a witness.

The Complainant submitted that Ms. Byrne repeatedly raised performance issues as could be seen on page 13 of the interview, however the Complainant was never put on a performance improvement plan.  The Complainant noted that reference to performance here showed the lack of focus of the investigation and the almost unlimited nature of the investigation.  The Complainant noted that the Respondent was not clear whether the investigation related to performance issues or misconduct issues, and this was never set out in any documentation.  The Complainant drew attention to the fact that he consistently maintained throughout the 14 August 2023 interview, that he did his work and that there was a failure by his managers to prioritise his work adequately or at all.  The Complainant noted that he repeatedly stated that he was overworked. 

The Complainant submitted that on the 17 August 2023 Ms. Annemarie Byrne conducted an interview with Mr. Robin Chacko, and he noted that he only received information and the notes of this meeting with the disciplinary pack on the 6 October 2023.  He further noted that Ms. Byrne asked, “in your opinion is work allocated equally amongst the maintenance team”, to which Mr. Chacko responded, “hard to say, some jobs are small and others are big, so it is hard to quantify, some jobs can take 2-3 days to complete”. 

The Complainant submitted that on the 18 August 2023, Ms. Annemarie Byrne conducted an interview with Mr. Joao De Almida, and that the meeting was recorded as taking place at 12 noon.  The Complainant noted that he only received the information and the notes of this meeting with the disciplinary pack on the 6 October 2023. 

The Complainant further submitted that on the 18 August 2023 Ms. Annemarie Byrne conducted an interview with Mr. Colm Buggy, the Assistant Maintenance Manager, and that the meeting was recorded as taking place at 12 noon, the same time and date as the meeting was reported to have taken place with Mr. Joao De Almida.  The Complainant noted that he again only received the information and the notes of this meeting with the disciplinary pack on the 6 October 2023.  The Complainant submitted that Mr. Buggy made allegations against the Complainant in respect of clocking in for extra hours, stating, “he said he came in at 10, I think at that particular time he was clocking in ahead of his shift to get paid extra hours.  I mentioned it to Danny when he came back”.  The Complainant submitted that there was no basis to this allegation and that it further showed the wide ranging and open-ended nature of the investigation into the Complainant.  The Complainant further noted that Mr. Buggy confirmed that, while not recalling swearing at the Complainant, it was a possibility, and he further stated that “I might have sworn when speaking to him, but not at him”. 

The Complainant submitted that a further investigation interview between the Complainant and Ms. Byrne took place on Friday the 18 August 2023 at 10am, that Ms. Iraelma Diaz was present as a note taker/translator.  The Complainant submitted that in that meeting, Ms. Byrne noted “in our last meeting you said you were overloaded with work orders, so I got Fernando to send them to me”.  The Complainant submitted that it was not clear when this communication with Mr. Fernando Da Silva, the Maintenance Office Administrator, took place, as Ms. Byrne had already had a recorded meeting with Mr. Da Silva on the 11 August 2023 and there was no record of any subsequent meeting and/or communication. 

The Complainant also noted that while the meeting record clearly stated that Ms. Iraelma Diaz was present as a note taker/translator, instead she became an active investigator and interrogator at this meeting, repeatedly asking questions of the Complainant as can be seen on page 16 and 17 of the interview record.  The Complainant submitted that Ms. Diaz was also present at the later disciplinary hearing and that it was entirely unclear in what capacity she attended the disciplinary hearing. 

The Complainant submitted that a further investigation interview between the Complainant and Ms. Byrne took place on the 21 August 2023 at 10:30am and that it was stated that Ms. Iraelma Diaz was present as a note taker/translator.  The Complainant noted that in that investigation interview, Ms. Byrne repeatedly referred to CCTV, however the CCTV was never shown to the Complainant; and it further appeared that Ms. Byrne herself did not view the CCTV and her references to it were based on an unknown employees purported viewing of the CCTV, which the Complainant submitted was clearly hearsay evidence.  The Complainant further submitted that at this meeting the Complainant raised the issue of a lack of training stating, “I don’t get training, I don’t have training in confined spaces and yet I am asked to work in confined spaces in the operation boiler”.  The Complainant noted that Ms. Byrne replied, “you have told me that you have 20 years’ experience, what training have you not done?”. 

The Complainant submitted that a further investigation interview between the Complainant and Ms. Byrne took place on the 25 August 2023 and that again Ms. Iraelma Diaz was present as a note taker/translator.  The Complainant submitted that at the interview he had indicated he wished to send in more photographs in support of his case and that Ms. Byrne prevented him from doing so and he referred to page 23 of the interview record by way of evidence.  The Complainant also referenced page 23 of that interview record in relation to the need for a service tracker stating that “all maintenance carried out on a machine should be archived/tracked, when work was done, for example, oil changes, so that we know when it is done and when it needs to be done again”.  The Complainant noted that this was a suggestion for a more comprehensive system than the work orders in place with the Respondent and he noted that Ms. Byrne simply replied “okay”. 

The Complainant submitted that on the 28 August 2023 Ms. Annemarie Byrne conducted an interview with Mr. Danny Graham, the Maintenance Manager, and that the Complainant only received the information and the notes of this meeting with the disciplinary pack on the 6 October 2023.  The Complainant noted that in response to a leading question from Ms. Byrne, “when did you start to realise that work was not being done?”, Mr. Graham responded, “there were a few red flags with some of the maintenance that he had been carrying out, that I was started to take note of …., but I couldn’t pinpoint if it was Henrique or not.  Back in November 2022 it was reported that he was clocking in for his shifts early and going directly to the canteen for a break before starting work, I spoke to him at the time about the canteen and then made a point of paying attention to the work he was doing”.  The Complainant noted that Mr. Graham referred to red flags but could offer no reason that they were connected to the Complainant, admitting that “I couldn’t pinpoint if it was Henrique or not”.  The Complainant also noted that Mr. Graham referred to reports of clocking in early and noted that there was no reference to who reported this or how this was substantiated.  Indeed, the Complainant noted this was characteristic of the wide ranging and unlimited nature of the investigation into the Complainant by the Respondent. 

The Complainant submitted that Mr. Graham stated later in the interview “there are also two cracks on the back of the machine (1140), again PPM paperwork was completed by Henrique on the 19 July to say the “test was okay” and he did not flag the cracks.  The machine is used by the Department of Agriculture and forms part of a safety audit by the Department.  Again, serious implications to the business had something gone wrong as a result of this check not being completed”.

The Complainant submitted that in respect of the work orders, Mr. Graham confirmed in the interview as follows: “Once the paperwork is completed by the end of the week by the lads in maintenance and is accurate, I’m okay with that …. I don’t mind when the lads fill out the paperwork so long as it’s done”.  The Complainant noted that Mr. Graham also referred to a log of the times he had spoken to the Complainant and noted that it was not clear why a log was kept, nor does the log provide the level of information that Mr. Graham stated in the interview. 

The Complainant submitted that in respect of the accident investigation into the steam valve, Mr. Graham offered no reason for his claim that the steam valve wasn’t faulty, other than to say, “I am 40 years in the business ….”.  The statement provided in the disciplinary pack did not appear to be a complete statement and further had written notes.  The Complainant submitted that it appeared to be in draft format and did not appear to be the final statement. 

The Complainant submitted that he was clear and had consistently maintained that the valve was faulty and that it was this fault that caused the explosion.  Furthermore, the Complainant submitted that he did not have training in respect of boiler operations and/or confined spaces, despite having requested this on a number of occasions.  The Complainant noted that Mr. Graham also referenced issues about using the phone, which were never put to the Complainant and again showed the wide ranging and open-ended nature of the investigation amounting to a “fishing expedition”. 

The Complainant noted that Mr. Graham admitted that “I do not treat him differently from the others ….. I have to keep checking his work, I question what he does, but this is because his performance has dropped and not for any other reason”.  The Complainant submitted that in spite of this clear admission of different treatment and the purported reason for the different treatment, the Complainant was never offered any performance improvement plan. 

The Complainant submitted that on the 6 October 2023 he received a letter from Ms. Annemarie Byrne, HR Manager, stating that the investigation was now complete into allegations in relation to the Complainant “submitting work orders that were signed as completed but appear not to have been done”.  He submitted that Ms. Byrne informed him that the matter was to be referred to a disciplinary hearing and he further submitted that the letter stated that the allegations against the Complainant were as follows:

        I.            “On dates between 17 and 28 July 2023, it was alleged that the Complainant submitted a total of 23 PPM preventative maintenance work orders signed as completed, while the work orders appear not to have been done

      II.            Alleged failure to carry out PPM preventative maintenance work between 17 and 28 July 2023

    III.            On 28 March 2023, it is alleged that the Complainant failed in his duty to safely carry out works on a steam valve that resulted in an explosion

    IV.            On dates between 22 May and 31 July, it is alleged that the Complainant failed to carry out the following instructions from his line manager, Danny Graham

a.      Failed to recycle the ammonia pump as requested

b.      Failed to repair the boiler storage press to standard

c.       Failed to clean thatch pond to standard required

d.      Failed to clear balance tank of silt as instructed causing an external agent to be contracted to remove blockage at a considerable cost to the business

e.      Failed to follow instruction to repair four pallet trucks and this work is still outstanding

f.        Failed to switch off the power pump in the effluent plant which is a fire risk.  It is also alleged that on this occasion the Complainant was reminded twice to ensure that the pump was switched off

g.       Completed a substandard task on four fabrication jobs assigned to you and were also unable to complete the weld required on the aforementioned

h.      For a second time that you failed to switch off the power pump in the effluent plant, risking damage to the pump and risk of fire

      V.            It is alleged that the Complainant failed to follow the holiday process and secured flight tickets before having the holidays authorised by his line manager, Danny Graham, the flight dates secured would include additional ……”

The Complainant submitted that he was clear that he carried out the work required in the work orders, that he had documented some of the work he did by photographs which he would then send via email to Mr. Graham.  The Complainant submitted a copy of those photographs and email as an appendix to his submission.

In respect of the issue with the boiler, the Complainant submitted that it was his position that the valve on the boiler was faulty and that this was the reason for the explosion.  Further it was his position that he did not have adequate training in respect of the boiler.  In respect of the ammonia pump, the Complainant submitted that it was his position that he was only asked to remove the water from the ammonia pump tray and that he did this.  He submitted that he was not asked to recycle the ammonia pump.

In respect of the boiler storage press, the Complainant submitted that he had fixed the door in a temporary manner and reported this to his manager and advised them that a new lock was needed.  He submitted that this was not followed up by the Respondent. 

In respect of the cleaning of the thatch pond, the Complainant submitted that he removed eight bags of rubbish from the pond and that he sent his manager an email and a photograph of this work. 

In respect of the balance tank of silt, the Complainant submitted that he required training in confined spaces, that this was not provided to him by the Respondent and that despite this, he had commenced cleaning the tank.

In respect of the four pallet trucks, the Complainant submitted that he fixed two of the pallet trucks.  In respect of the third pallet truck, he submitted that it couldn’t be repaired as there was a broken part and a piece that had to be ordered was required to fix it.  Finally, in relation to the fourth pallet truck, the Complainant submitted that it wasn’t provided to him for fixing.

In respect of the power pump the Complainant accepted that he forgot to turn it off, however he submitted that there was no risk of fire as the electrical parts were all time protected. 

In respect of the fabrication jobs, the Complainant submitted that he did complete four fabrication jobs to a high standard.

In respect of the power pump, the Complainant submitted that he did resolve the issue with the power pump and removed a stone from the inside of the pump and he confirmed that the electrician then turned the pump on for tests to be run.

In respect of the vacation, the Complainant submitted that he sent an email to his manager two months before taking the vacation and that there was no response, and he provided a copy of the email as an appendix to his submission.

In the letter from Ms. Byrne, she confirmed that the only information Ms. Hough would have in advance of the meeting was a copy of that letter, the attached statements, documents and CCTV transcript.  The Complainant submitted that he received a copy of the disciplinary pack on the 6 October and that the disciplinary hearing took place remotely on Microsoft Teams on Tuesday 17 October 2023.  He submitted that he did not receive a copy of the minutes of that meeting, that the hearing was conducted by Ms. Audrey Hough, HR Director, and that Ms. Iraelma Diaz and Ms. Annemarie Byrne were both present.  The Complainant submitted that it was not clear what role Ms. Diaz had in attendance at that meeting.  The Complainant further submitted that no witnesses were called at the disciplinary hearing of 17 October 2023 and that the Complainant was not presented with an opportunity to hear from any witness against him, or to cross examine any such witness.  The Complainant submitted that he struggled with his English during the investigation and disciplinary hearing and did not understand all the questions asked of him and he further submitted that the documents in the disciplinary pack were provided in English only.

The Complainant submitted that he received an email on 18 October 2023 from Ms. Hough, stating that all the disciplinary allegations, with the exception of number 4D were being upheld.  In that correspondence, Ms. Hough asked for submissions in relation to disciplinary sanctions.  The Complainant submitted that he responded in three separate emails, on 19 October 2023, to Ms. Hough and he confirmed that he received a disciplinary hearing outcome letter dated 24 October 2023, in which he was dismissed.  He noted that that letter concluded, inter alia: “I found it quite disturbing and alarming that throughout this disciplinary investigation, you disassociated yourself with such ease from your core work ethic.  You freely admitted to not completing tasks to the required standard, which were not in compliance with supervisor’s requests.  Your work was routinely substandard and yet you still had the confidence to call yourself organised and responsible.  I sincerely disagree.

“I found it very reasonable on Danny’s part to have given you the opportunity to fix some issues raised, and I was disappointed to see that more than once, how you declined the opportunity to exercise your skills and carry out your work to the highest standard.  Rather it appears instead that you took the easy option.  I would have imagined someone in your position to have pride in carrying out their work, but I am sad to say that you showed no evidence of this.

Additionally, and equally, is the lack of value you place on the time and efforts of your colleagues.  You failed to attend to the initial disciplinary hearing without giving any notice or explanation for your nonattendance, disregarding as you did, my time, Annemarie’s and Iraelma’s.  After having been contacted and arriving 35 minutes late for the hearing, you explained that you had not bothered to read the disciplinary pack that you had been furnished with before the hearing.

“In coming to my decision in relation to the appropriate disciplinary sanction to apply in your case, I have carefully considered all available information and your admissions.  I believe that you consistently chose the easier, quickest, or indeed the laziest option to complete your work, frequently putting yourself, the business and your colleagues at risk.  I am dismayed by how much the business suffered because of your actions, and not only once, but when given the opportunity to fix the work assignments, you did not. 

I feel I am left with no option but to dismiss you from your employment with Kepak Clonee.  I do not make this decision lightly, and I have taken into consideration all of the information gathered during this investigation and what emerged at the disciplinary hearing.  Your dismissal will be with statutory notice, which you will not be required to work.

You are entitled to appeal my decision.  If you wish to do so, please outline your reasons in writing within five working days and return to the HR Department”.

The Complainant drew attention to the Respondent disciplinary procedure and in particular noted that it set out “any witness the investigator wishes to call should then be called.  The employee or person accompanying the employee may question those witnesses.  The decision maker may then question the witnesses”. 

The Complainant submitted that despite these clear procedures, no witness was called by the investigator and the matter proceeded in the absence of any witnesses on behalf of the investigator. 

The Complainant submitted that the disciplinary policy was also clear in respect of disciplinary sanctions and the Complainant submitted that it was not clear what steps Ms. Hough had considered, short of dismissal.  The Complainant submitted that the sanction of dismissal was wholly disproportionate to the allegations which were not admitted by the Complainant.  The Complainant noted that his employment ended on 24 October 2023, and he confirmed that he was seeking compensation for the dismissal. 

The Law:

The Complainant submitted that section 6 (7) of the Unfair Dismissals Act 1977 emphasised the importance of reasonableness in determining if a dismissal was fair.  In this regard, he cited the case of Allied Irish Banks V Purcell (2012) 23 ELR 189 where the “band of reasonableness” as applied by Judge Linnane does not give an employer carte blanch in relation to the decision to dismiss. 

The Complainant also cited the case of Iceland Frozen Foods Limited V Jones (1982), IRLR 439, which set out the test for reasonableness as follows:

“It is capable of being misunderstood so as to require such a high degree of unreasonable is to be shown that nothing short of a perverse decision to dismiss can be held to be fair within the section”.

Based on the aforementioned cases, the Complainant submitted that the test of a reasonable employer is one who is presumed to act with regard to the principle of proportionality and in that context the Adjudication Officer is required to have regard to the proportionality of the Respondent’s actions.

The Complainant drew attention to section 6 of the Unfair Dismissals Act 1977, which provides:

(1)   “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.”

In relation to procedural unfairness the Complainant submitted that the decision to dismiss an employee will be considered to be unfair if it is arrived at by a process which does not afford fair procedure.  The Complainant relied upon the case of Hennessy V Reid and Wright Shop Limited, UD192/1977, where the Employment Appeals Tribunal, described the reasonableness aspect of unfair dismissals as follows:

(1)   The nature and extent of the investigation carried out by the employer prior to the decision to dismiss the Complainant and

(2)   The employer’s conclusion following such an enquiry that the Complainant should be dismissed

The Complainant submitted that there were a number of significant flaws in the Respondent’s disciplinary process arising from the factual background as previously set out and outlined as follows:

        I.            The Complainant did not have an opportunity to cross examine key witness against him.  Indeed no witnesses were called at all at the disciplinary hearing, contrary to fair procedures and the Respondent’s own policy.  The Complainant submitted that it appeared the Respondent chose to dispose of this on the basis of a paper only review of witness statements, while the Complainant himself was required to give viva voce evidence.  The Complainant had no opportunity to test the evidence against him.

      II.            The Complainant’s explanation for the allegations were not fully investigated.

    III.            The claims made against the Complainant were vague and often unsubstantiated.

    IV.            The investigation into the Complainant was often open ended, witness statements were often taken in response to leading questions, unsubstantiated claims were often made, and the investigation amounted to a fishing expedition.  The Complainant submitted that it wasn’t clear whether the investigation related to performance or misconduct issues.

      V.            The Complainant was refused permission to submit further photographic evidence during the investigation.

    VI.            CCTV footage was relied upon, although it was not provided to the Complainant and further it appeared that the decision maker herself did not view the CCTV and her references to it were based on an unknown employee’s reported viewing of the CCTV.

  VII.            Ms. Diaz’s presence at the investigation purportedly as a note taker/translator; however, as can be seen in the minutes of the meetings with the Complainant, she became an active investigator and interrogator.  She was also present during the disciplinary meeting and it was not clear, in what role, she attended that meeting. 

The Complainant noted that the test to be applied whether the sanction was reasonable, was set out by the Employment Appeals Tribunal in the case of Noritake (Ireland) Limited V Kenna (UD88/1983), where the tribunal considered the matter in the light of three questions:

1.      Did the company believe that the employee misconducted himself as alleged?

2.      If so, did the company have reasonable grounds to sustain that belief?

3.      If so, was the penalty of dismissal proportionate to the alleged misconduct?

The Complainant opened a number of cases in relation to the question of the range of reasonable responses available to the employer and submitted that in the instant case, the sanction was disproportionate to the actions complained of, of which actions were not admitted by the Complainant.

Witness Evidence – Mr. Telli:

Mr. Telli was assisted throughout the giving of his evidence by an interpreter.  Mr. Telli confirmed that he was from Brazil and that his level of English was limited.  It was put to him by his representative that he had been described as having excellent English and being very competent but Mr. Telli confirmed that he could not be described as excellent.  He confirmed that he was a technical engineer and that he was responsible for all parts of the machine.  He confirmed that he worked in Clonee for most of the time he was with the Respondent but that he had worked for a month in Portlaoise in or around June or July.  He confirmed that the manager assigns jobs at the start of the shift and that after production has shut down that he is then free to service the machinery.

In relation to the incident with the valve in March 2023, he confirmed that he welded a pipe and that afterwards he spoke to the manager.  He confirmed that the valve had later exploded, and that the manager had been present when fixing the valve and that five minutes after the manager had fixed the valve it had exploded.  He further confirmed that he did not have training.  He stated that there was an inspection the next day and that after talking to them they didn’t get a security cert.  He stated that there was a health and safety investigation conducted within the company and that it was not certified.

In relation to the first allegation that he did not complete the service hours; he confirmed that he did the task, but he did not recall the exact time and date.  He confirmed that he did complete all jobs listed under the allegation but that as per allegation 1, he could not recall the exact date and time when he completed the work. 

In relation to work orders he stated that normally planned preventative maintenance (PPM) was done after cleaning hours and that he completed all the work orders and that he would normally do them on a Thursday and Friday.  He also confirmed that he had to do the work during other rosters as he was often assigned other jobs.  He did confirm the tasks were done daily, weekly and monthly but he confirmed that service hours were generated by Fernando and by the end of the week it was accepted that the work would be concluded and that when you completed the jobs by the end of the week you had to sign off on those jobs. 

The Complainant confirmed that he had done all the jobs and that they had been completed and that he had confirmed that position at the investigation.  He stated that at times he may have made mistakes in relation to the times when the work was completed and that it could have been any given day within the week but that he had completed all the jobs.

In relation to the holiday issue, the Complainant confirmed that he had a difficult time in that there had been a bereavement in the family and that on 24 July he had asked for holidays via email from 1 September to 5 October and he confirmed that he did not receive a response from Mr. Graham.

In relation to Ms. Diaz, he confirmed that she was present at all meetings and that she did translate for him whenever he asked for assistance.  When asked if Ms. Diaz had asked any questions he stated that no she had not. 

The Complainant Representative asked him if he had raised any issue in relation to training and he said that he had.  He stated that depending on the job that was being done, it sometimes required additional training, and he confirmed that he did not have training on the platform to work at height nor in confined spaces. 

The Complainant Representative asked him why he had not appealed the decision to dismiss him, and he responded that he was exhausted by the procedure and that there were 8-10 people talking against him in the company.  He confirmed that he was now working for another employer and that he had started work on 9 January 2024.  He confirmed that he was receiving €22 per hour plus overtime in the new role. 

Under cross examination the Complainant confirmed that all his dealings with Mr. Graham had been in English, and he confirmed that he could understand the questions put to him by the Respondent Representative.  He stated that when discussing matters with Mr. Graham, sometimes he would need help with technical words.

In relation to the meeting with Ms. Byrne, he confirmed that this was all in English but that he did not understand what was being said.  He confirmed also that the notes of the meetings were all in English and that he was not happy with the notes as they contained accusations.  The Respondent Representative put it to the Complainant that while he had refused to sign the notes of his meetings, he had said he was happy with them, to which he responded that he was not happy with the proceedings and that he had emailed accordingly.  In relation to those notes he confirmed that he was not happy with those notes because they were against him.

The Complainant was asked if he could read in English, and he confirmed that he could, but he again confirmed that he was not happy with the accusations against him in the notes.  He stated that the company would not allow him to speak the truth.  In relation to his level of English, he confirmed that he would describe himself as having an intermediate level of English. 

The Respondent Representative wished to enter into the record a copy of the Complainant’s CV and the Complainant Representative objected on the basis that it was not admissible.  The Respondent Representative confirmed this would not be entered into evidence. 

In relation to the suspension letter the Complainant confirmed that he had received it but that all it contained were false allegations.  It was put to him that he would have understood the potential disciplinary implications contained in that letter and he confirmed that he did but that he did not know the Irish Law.  It was again put to him that he had understood the content of that letter, and he stated that there were many things in that letter that he did not understand.  The Respondent Representative put it to the Complainant that he had never raised his concerns at any stage about not understanding the correspondence to which the Complainant responded that he hadn’t raised it but that he did not understand some of what was contained in the letter.  He stated that something was happening in the company and that he didn’t know what, but that the manager was trying to damage him. He stated that he had wanted to talk to the manager about what was going on but that he didn’t ever get that opportunity. 

In relation to the investigation meeting, he confirmed that he did receive a letter, setting out allegations and he confirmed that he was asked if it was okay to proceed and to conduct the investigation meeting in English.  The Complainant confirmed that he had accepted that but that there many things that he did not understand.  The Respondent Representative put it to the Complainant that Ms. Diaz was available to assist him, and the Complainant responded that yes, but many questions had a yes or a no answer and that he didn’t understand them all and again the Respondent Representative pointed out that he had never raised any concern. 

In relation to representation the Complainant confirmed that he had no representative and that he had never called witnesses, because he didn’t understand how it worked.  The Respondent Representative put it to the Complainant that from the outset he had been advised about witnesses and that he had said he didn’t to bring any.  The Complainant said yes, that was the case, but he didn’t understand the Irish law and that a person would get into trouble in the company. 

It was put to the Complainant that he was asked about completing the paperwork and he was asked what was his first explanation for not having done this.  The Complainant stated that he did the jobs, only he didn’t remember the date.  The Respondent Representative put it to the Complainant that he had in fact told Ms. Byrne that he had done the work at the time and date on the work order and the Complainant confirmed that this was the case.  The Respondent Representative put it to the Complainant that this was misleading and that he had been telling a lie.  He stated that it was clear that he hadn’t done it at the time and he asked the Complainant why did you tell Ms. Byrne that you did.  The Complainant did not respond to the questions which were repeated several times by the Respondent Representative.  The Complainant stated that he did not understand the question.  The Respondent Representative put it to him that he did understand the question, that he had spoken to the translator and had had the question translated for him.  At this juncture the Adjudication Officer rephrased the question for the Complainant and again the Complainant did not provide a response.  The Adjudication Officer asked again to respond to the question and the Complainant did not provide an answer but answered a completely different question.  The Adjudication Officer put it to the Complainant that his behaviour in the hearing was not credible, that he had the assistance of the interpreter in understanding questions being put forward and that he was providing answers to questions other than those being asked, however the Complainant provided no further answers to those questions. 

The Respondent Representative put it to the Complainant that Ms. Byrne had asked him about the time and date on the docket and then she asked him if he had carried out the inspection at that time and date.  The Complainant did not respond.  The Respondent Representative then asked “so why did you tell a lie to Ms. Byrne” to which the Complainant responded “because the work was done daily and weekly etc”.  The Respondent Representative noted that the Complainant was deliberately avoiding the question.

The Respondent Representative put it to the Complainant that he had been asked about the tools that were brought out but none brought back and the Complainant said that he will do this daily, weekly and monthly.  The Respondent Representative asked the Complainant if he was 100% certain that he has the paperwork with him at the time of doing the job.  The Complainant responded “I didn’t understand” and then he changed that to “yes, I understand”.  The Respondent Representative queried his answer and asked him when the work was done would he return the docket and his answer was, yes it was always in the company. 

The Respondent Representative asked him, so why tell Ms. Byrne that you did it at the time, to which the Complainant responded, I didn’t understand.  The Respondent Representative asked, so which part of that do you now say you don’t understand, to which the Complainant responded, I don’t understand your question. 

The Respondent Representative put it to the Complainant that Ms. Byrne had asked him if he had brought the docket to the machine to which the Complainant responded, I will not bring paper with me, this will stay in the company.  The Respondent Representative stated then why tell her that you did and the Complainant responded, because I did not understand the question.  The Respondent Representative asked, are you saying you completed the work at the time, and the Complainant stated, I don’t remember the exact time and date.  The Respondent Representative put it to the Complainant that he was avoiding the question and again this happened on multiple occasions. 

The Respondent Representative put it to the Complainant that his story to Ms. Byrne had continued to change on a number of occasions and the Complainant responded that he was being truthful, that he did complete the tasks.  The Respondent Representative noted that when the Complainant was alerted to the CCTV, he changed his story and his response was that he did not change the story, he continued to say he did complete the work but didn’t know the exact time and date.  The Respondent Representative put it to him that he did change his story, that he changed to saying he went back to the office to write it up, to which the Complainant responded, I don’t remember.  The Respondent Representative noted that the position changed again and referred to page 150 of the submission where the Complainant had stated that the tasks were completed but he didn’t remember the date and time, and he stated that he did not tell Ms. Byrne from the beginning because he thought he might lose his job.  He stated that every day he was doing his job he tried to talk to the manager and that he would like him to know, because something wrong was going on and things were in a bad place with Mr. Graham.  He confirmed that the dockets were not accurate.  He stated that he signed all the dockets and that he had done the job.  The Respondent said he would ask one last time if the Complainant had completed the PPM checks at the times and dates on the dockets and he responded that he did not remember.  When asked why he had said that, he gave no response.  He said that each day the first person he would speak to was Mr. Graham and that he would establish what jobs needed to be done.

The Respondent Representative put it to him that he accepted that he might not have done the jobs and he responded, “I’m telling you the job, I did it”.  The Respondent Representative then asked why he would say that, that it was possible that it was not done at all, to which he responded, “I work from midday, Mr. Graham overloaded me with work that I had to complete all the tasks he assigned to me.”  The Respondent Representative stated but why say it to which he responded, the jobs were done. 

In relation to the steam valve, the Respondent noted that the Complainant stated it wasn’t his fault.  The Complainant responded “I was not guilty, I followed the correct procedure, it was open when it had to be closed.  After the accident the company to examine and they did not get any result about what happened to the valve”. 

The Complainant confirmed that he sent pictures about all of the jobs done and that there was something going on about him in the company. 

The Complainant confirmed that he had read the handbook which had been included in the disciplinary procedures.  He confirmed that he was aware of the CCTV footage but when he received the book he didn’t read it in full and that he was aware that the CCTV didn’t show that he was where he had stated he should be.  The Complainant also confirmed that during the process he had accepted the Health and Safety Managers report on the CCTV footage and that he had done so because he hadn’t done anything wrong.  He confirmed that he had responded to all allegations but that he would only answer what he was asked about.  The Complainant stated that he did not get to call witnesses because all he could call were company people and he could cause them harm by calling them to participate in the process.  He further confirmed that he had received the disciplinary letter and the disciplinary pack in October and before his meeting with Ms. Hough that the letter had set out five allegations, and that the letter set out that the matters may be subject to a disciplinary sanction.  He also confirmed that that letter advised him of his right to representation.  He confirmed that Ms. Diaz was present at the meeting, that he had wanted to talk to the manager but that the manager was not present (Mr. Graham). 

The Respondent Representative asked the Complainant about what he had said to Mr. Graham at the investigation meeting.  The Complainant responded asking why he had been sent out to cut grass etc.  The Adjudication Officer noted that he gave the response without the need for translation.  The Respondent Representative noted that the Complainant had good English and noted that the Complainant was now admitting that the work orders were not complete.  The Complainant responded “I’m going to truthful, I did all the jobs, people in the company are trying to damage me”.

The Respondent Representative put it to the Complainant that he had already accepted that not all the jobs had been complete to which the Complainant responded that all jobs were completed and all were executed.  The Respondent Representative put it to the Complainant that it was difficult to accept that he was credible, that he was constantly changing his story, to which the Complainant responded “I am being completely transparent”.  The Respondent Representative put it to the Complainant that at hearing he was deliberately evading the questions. 

The Respondent Representative asked the Complainant in relation to the holidays and his email to Mr. Graham in that regard.  The Complainant did not respond.  The Respondent Representative asked the Complainant what was the correct procedure for applying for leave and the Complainant responded that he had had a family matter and then he asked the Respondent Representative to repeat the question and when that was done, he did not reply.  The Respondent Representative stated that he would need a reply to which the Complainant responded “he would never talk to me”. 

The Respondent Representative put it to the Complainant that it was required for him to book the leave in advance on the portal and noted that he had sent an email because of the personal problem.  He asked the Complainant if he was aware of the procedure, and asked for a yes or no answer.  The Complainant responded no.  The Respondent Representative asked the Complainant if he had completed the form and he stated no, but that he had sent an email because it was important because there was a family problem.

The Respondent Representative put it to the Complainant that he had stated that he didn’t understand the allegations and the procedures but that he had accepted the allegations 1,2, 3 and 5.  The Respondent Representative put it again to the Complainant that this was extraordinary that if he didn’t understand those allegations that he did not write, dispute or appeal the decision.  The Complainant stated that yes he was accused of several things, that he was accused from March up until August and that he wanted to talk to his manager and he was never given the chance.  The Respondent Representative put it again to the Complainant that he was not answering the question and that he was redirecting.  The Complainant stated that at the time he was exhausted and under a lot of pressure and was never given the chance to defend himself.  He stated that “all I know is that I did the jobs, Danny was looking for things that were never raised”. 

In relation to training, the Respondent Representative put it to the Complainant that he was saying he required training on equipment, platform working and working at height.  The Respondent Representative asked the Complainant if he was saying that he was not competent.  The Complainant responded that he was competent but needed training.  The Complainant confirmed that he was currently working for another company, that he had initially been employed by a different company for 40 hours a week plus overtime, but that he was now working with a company receiving €22 per hour.  He confirmed that while working for Kepak, he had initially been working at a rate of €16 per hour and that this had been increased to €20 per hour.  He confirmed that his pay rate at the time of leaving the employment of the Respondent was €20 per hour.

The Complainant confirmed that he had started in alternative employment on 9 January 2024, that he had been out of work for eleven weeks and that he had been seeking work for nine weeks.  He confirmed that he had received social welfare benefits during that period, that he had received one payment of €236.  He confirmed that he was now six months with the company and that everything was working well. 

The Adjudication Officer put a number of questions to the Complainant in relation to the investigation procedure and the Complainant failed to respond at all or responded to questions other than those asked.  Ultimately the Adjudication Officer asked the Complainant if he had understood the allegations that were put to him by the Respondent as part of the investigation process and he confirmed that he had understood.

Post hearing Submission on Redress

On 10 December 2024 the Complainant made a post hearing supplemental submission in relation to his financial loss.

He submitted the following:

·       That the Complainant was employed by the Respondent from in or around 13 October 2021 and that he worked a 40-hour week

·       That his hourly rate was initially €169 gross per hour and that this was increased to €20 per hour before being unilaterally lowered before his dismissal to €18 per hour.

·       That the parties had agreed that the correct hourly rate was not reflected in all payslips provided and that the rate of €20 per hour (€800 per week) is the correct salary

·       That in addition the Complainant received an average of €267.21 in respect of overtime from 3 February 2022 to 16 November 2022; resulting in a gross total weekly salary of€1067.21.

·       That the Complainant commenced employment with a new employer on 9 January 2024 and so was out of work for 11 weeks, equating to a loss of earnings of €11739.03

·       That in this employment he earns €22.19 gross per hour, and taking into account his average overtime he earned €916.00 gross per week.

·       That this equated to a weekly differential of €151.21.

·       That having worked for that employer for a 6-month period, the above weekly differential resulted in a loss over that period of €3931.46

·       That thereafter the Complainant began working with a second new employer at a rate of €22 gross per hour, resulting in a weekly salary of €858.

·       That in that role the Complainant does not have any overtime.

·       That the weekly loss arising from this employment is €209.21, with an accumulated loss up to the date of the submission of €4393.41

·       That this loss is on-going

In summary the Complainant calculated his accumulated loss up to the date of submission to be €20064.18 and noted an on-going loss into the future of €209.21.  Referencing Brady v Minister for Social Protection [2016] IEHC 553 the Complainant noted tat the Court stressed that the quantum of loss was not limited to loss suffered within the two years following dismissal but was instead calculated on the basis of total losses into the future, but capped at a sum equal to two-years remuneration.  The Complainant submitted that, as such, there is no limit to the WRC’s ability to compensate for the ongoing weekly financial loss of €209.21, and that the only limit is “the quantitative limit imposed by the Act of 104 weeks’ remuneration.”

The Respondent submitted that the Complainant commenced working with the Respondent in October 2021 at the Clonee premises.  The Respondent noted that the Complainant changed location between June 2023 and July 2023 for a period of four weeks and three days to assist with an issue of support on another site.

The Respondent submitted that

·       the Complainant came to attention as a result of a very serious issue with regard to his working practices

·       the Complainant was an engineer with significant experience and was trusted him to carry out works that were required

·       that he was a skilled employee and there was a level of trust afforded to him that he would carry out his duties and would sign off the duties as being completed

·       that as a maintenance engineer the Complainant was required to service, maintain and repair the many machines operated by the Respondent. 

The Respondent further submitted that the assignment of works procedures, which the Complainant was well aware of, was that he would have a work order assigned to him and he was then required to carry out and complete the work order by a particular time and date.  Work orders included maintenance checks on machines.  As an experienced engineer, the Complainant was allowed a significant degree of discretion in relation to how and when he completed his assigned works and a great deal of trust was placed in him.

The Respondent noted that the Complainant “conveniently sidestepped and avoided mention of the fact that he admitted to a number of serious allegations during the course of the investigation and at the disciplinary hearing”.  The Respondent noted that in particular the investigation interview notes and disciplinary hearing outcome letter confirmed that he had admitted to four allegations, in particular as follows:

·       On dates between the 17th and 28th July 2023, he submitted a total of 23 PPM preventative maintenance work orders signed as completed where the work orders appear not to have been done.

·       A failure to carry out PPM preventative maintenance work between the 17th and 28th July 2023.

·       On the 28th March 2023, a failure in his duty to safely carry out works on a steam valve that resulted in an explosion.

·       A failure to follow the holiday process and purchasing flight tickets before having his holidays authorised by his line manager, Mr. Danny Graham.

The Respondent submitted that the admissions made by the Complainant are a fact and something he cannot now resile from.  The Respondent noted that the first three matters are very serious and significant issues for the Respondent as it relies on its skilled engineers to ensure that all machines are safe for use.  The Respondent noted that the Complainant admitted that he falsified work orders so that they showed that the maintenance checks were completed on particular times or dates when in fact they were not checked at those times and dates, or at all. 

The Respondent drew attention to its disciplinary handbook where it confirmed that this is a matter which can lead to summary dismissal, given its seriousness. 

The Respondent noted that the Complainant asserted that he was invited to a disciplinary meeting, however, the Respondent noted that the Complainant was in fact invited to a disciplinary investigation meeting, not a disciplinary meeting and that this was clear in the letter of invite.  The Respondent noted that this was entirely in line with the procedures set out in the disciplinary handbook. 

The Respondent drew attention to the importance of interviews conducted under the investigation process and noted that they show that the process was fair and transparent from the outset with all matters put to the Complainant and with him being allowed an opportunity to respond to all allegations. 

The Respondent noted what it described as attempts by the Complainant to deflect from the numerous admissions made on the basis that the Complainant had difficulty with his language, i.e. that he was not sufficiently proficient in English.  The Respondent submitted that this again ignored the fact that the Complainant was specifically asked at the very first investigation meeting, if he wanted to conduct the meeting in English and if he wanted correspondence to be in English.  The Respondent noted that he confirmed he did.  The Respondent further noted that there were repeated references in his submissions alleging an uncertainty as to why the translator was present.  The Respondent noted that again, the Complainant was specifically advised that she was there to take notes and would help if needed with any translation.  The Respondent further drew attention to the position of the Complainant’s colleagues, who had indicated that the Complainant had always dealt with colleagues in English, was proficient in English and was now alleging otherwise.  The Respondent submitted that this sudden deficiency in his English language skills was self-serving for the purposes of his claims against the company.  The Respondent submitted that the Complainant was in a difficult position as to succeed in this claims, and that he must somehow explain why he admitted to a number of very serious issues, which clearly warranted dismissal. 

The Respondent submitted that the Complainant was invited to a number of disciplinary investigation meetings and that it was clear from the notes taken, that they demonstrated the following:

a)      He was asked if he wished to continue through English and he agreed same.

b)      He was asked if he wanted representation and he confirmed he did not.

c)      He was advised if any witness submits a statement as part of the investigation, the Complainant will have an opportunity to question them, i.e. the right to cross examine.

d)      He was asked if he had any witnesses he wished to interview or call and he confirmed he did not.

e)      All matters were put squarely to the Complainant and he was asked for an explanation.  He made a number of admissions in relation to not completing tasks assigned to him.

f)       At the conclusion of the meeting, he was advised if he wished to furnish any further information he could do so, or if he wanted to send an email or a statement he could do so.  The Complainant never did either.

The Respondent submitted that the Complainant had made a very large number of complaints, effectively about almost every aspect of the investigation and disciplinary procedure.  The Respondent noted that the Complainant queried when Ms. Annemarie Byrne received information, how she received information.  He queried why certain people were interviewed, or the role of certain people within the process.  The Respondent noted that none of the very numerous complaints which were raised, had any merit, and it was simply “a scattergun approach taken to try and undermine the process”. 

In response to those allegations, the Respondent outlined the following:

·       The Complainant was not shown CCTV as there was nothing to see.  There was no footage of him in the abattoir.    It was noted that the investigation notes show that he was informed that Ms. Byrne would be looking at CCTV to try and determine his whereabouts, and in the same conversation she told the Complainant that she had viewed some CCTV prior to their meeting.

·       Ms. Byrne drafted the CCTV transcript based on what she viewed on the 17th, 19th and 20th and the rest based on the information provided to her by Ms. Da Silva.  The Respondent noted that the Complainant kept saying he couldn’t remember when the work was carried out (meaning that several hours would have to be viewed to determine if the checks were carried out).  It was not possible to store this amount of CCTV evidence that the Complainant was not seen in the abattoir.

·       The Respondent noted that the Complainant then finally agreed that he did not carry out the PPM checks.  The Respondent noted that this was why the transcript was drafted and that this was also explained to the Complainant and he agreed.  The Respondent noted that the first interview notes clearly reflected that the Complainant was evasive in his answers and seeking to deflect from the real issues which were under review.

·       The Respondent submitted that the Complainant’s assertion regarding the CCTV should now be considered in the context of the overall investigation and his admissions that he in fact was not carrying out the works to the machines as stated on the completed work order documentation.  The Respondent noted that one might reasonably ask why it was he was now complaining that the CCTV was hearsay, or the CCTV transcript was hearsay.  The Respondent noted that the Complainant admitted that the work orders were falsely completed and that he was not fixing the machines, or checking the machines on the days, dates or times that are reflected on those work orders.  The Respondent noted that those very important documents were rendered meaningless and cannot therefore be relied upon.  The Respondent further noted that the documents do not reflect that the machines were checked, tested or repaired at the times stated on the documents and noted that in a heavily regulated industry such as the meat processing industry, this was simply unacceptable.

·       The Respondent noted that the Complainant’s submissions were misconceived in respect of the repetitive assertion that various matters were hearsay evidence.  The Respondent submitted that it put all matters to the Complainant and he was allowed an opportunity to reply to same, introduce his own evidence if he wished and call his own witnesses etc.  The Respondent noted paragraph 5 of the Complainant’s submission and indicated that it was a clear instance of the Complainant purporting to rely on hearsay evidence as an apparent breach of fair procedures in a manner which was wholly misconceived.  The Respondent submitted that in reality, Ms. Byrne put a matter squarely to the Complainant and advised the Complainant who had given her the information (Mr. Graham), the Complainant was then allowed to comment on it.  He did comment on it and at the conclusion of the interview, he was again reminded he could call any witness he wished to call.  The Respondent submitted that if one considers the submission made by the Complainant, it appeared that he now believed that Mr. Graham should have been physically present at the investigation meeting, to avoid a finding that this was “an introduction of hearsay evidence”.

·       The Respondent submitted that the notes also demonstrate that during the investigation, while Ms. Byrne did reference “Danny says”, her reference to the Complainant being in the canteen was in response to him telling Ms. Byrne that Danny had overloaded him with work.  Ms. Byrne had previously spoken to the Complainant in a performance review meeting in 2023 about the canteen.  In this instance Ms. Byrne relied on her recollection of events and did not speak to Mr. Graham prior to the investigation as he was on holidays.

·       The Respondent submitted that Ms. Byrne emailed Mr. Galvin for feedback on 11 August on the Complainant’s time in Portlaoise as part of the investigation.  The Respondent submitted that this was not a fishing expedition, rather it was a gathering of data for the investigation and the Respondent noted that this feedback could have been helpful to the Complainant.  The Respondent further noted that Mr. Galvin’s response was shown to the Complainant in the investigation and it was also added to the disciplinary pack.  The Respondent further noted that the disciplinary hearing invite made mention of Mr. Galvin as a witness and gave the Complainant the option to call him as a witness, however, the only person the Complainant wanted to talk to throughout the investigation and the disciplinary process was Mr. Graham.  When asked at the investigation meeting were there any witnesses he wanted Ms. Byrne to talk to on his behalf, the Complainant responded no.

·       The Respondent submitted that the Complainant alleged he was overworked.  Prior to the investigation he made no complaint to his manager or HR of being overloaded with work or the need to have someone prioritise his work for him.  In the investigation meeting , the Complainant mentioned being allocated more work than others.  Ms. Byrne interviewed Mr. Chacko as he worked the same shift.  His statement was submitted as part of the disciplinary pack. 

·       The Respondent submitted that the Complainant seemed to take issue with the fact that interviews were carried out.  The Respondent submitted that it was clear from the investigation that all relevant witnesses were interviewed, that the interviews were made available to the Complainant and that he was entitled to challenge any issue as he deemed appropriate.  The Respondent noted that he chose not to do so and that in fact he did not even take the time to read the disciplinary pack. 

·       The Respondent noted the content of paragraph 21 of the Complainant’s submission and submitted that Ms. Byrne had confirmed that she used the same meeting record template and it appeared that she did not change the meeting time on the template, thus resulting in a clerical error.  The Respondent confirmed that the meetings were held at separate times on the same date, Mr. De Almida at 12 noon and Mr. Buggy at 10:00am (as he would have been on an earlier shift).  The Respondent confirmed that all interviews were furnished to the Complainant in advance of the disciplinary hearing. 

·       In relation to the concern raised in paragraph 25 of the Complainant’s submission, Ms. Byrne confirmed that following the investigation meeting of 14 August (when the Complainant raised the issue of his workload), Ms. Byrne emailed Mr. Da Silva on 15 August asking if he could provide all of his work orders and he dropped them into her office the following day.

·       The Respondent noted the concerns raised in paragraph 26 of the Complainant’s submission and submitted that it was clear from the notes that while taking notes, Ms. Diaz asked the Complainant if he could clarify something for her notes and the Respondent noted that in the questions preceding this, the Complainant was evasive with his responses.  The Respondent further noted that Ms. Byrne had already asked the question and that Ms. Diaz had just rephrased it and the Respondent noted that there was nothing impermissible about this.  The Respondent confirmed that all questions were asked by Ms. Byrne who led the investigation and the assertion that Ms. Diaz was an interrogator was simply incorrect.

·       The Respondent submitted that it was correct that Ms. Diaz was also present at the disciplinary hearing, although again it was queried in the submission that it was “unclear in what capacity she attended”.  The Respondent submitted that it was always very clear.  The Respondent submitted that the disciplinary hearing was carried out via Teams from the HR office and that when the meeting was over, the Complainant was told that Ms. Diaz would attend if he needed any help with translation.  The Respondent noted that he agreed to have her present.  The Respondent further noted that the Complainant carried out the meeting in English with very little assistance from Ms. Diaz and that this was referred to by Ms. Hough in her outcome letter.  The Respondent noted that it was unfortunate but that this once again showed the approach of the Complainant in his submissions, which was a scattergun approach seeking to undermine the investigation and disciplinary hearings by attacking everything and raising questions to which the Complainant was always aware of the answers.

·       The Respondent submitted that it was correct that the Complainant raised that he did not receive confined space training.  The Respondent noted that this was the first time that he had mentioned that he was not trained in confined spaces and that it did not form part of the investigation.  The Respondent noted that the questions asked by Ms. Byrne were perfectly reasonable as she wished to clarify what training he was referring to, as he had several training certificates on file. 

·       The Respondent noted the allegations set out by the Complainant in paragraph 32, that Ms. Byrne prevented the Complainant from sending in photographs.  The Respondent noted that this again ignored the simple fact that she scheduled the extra meeting on 25 because he had photographs that he wanted to show her.  The Respondent stated that Ms. Byrne did not understand the need for photographs when it was raised in the investigation.  The Complainant stated that sometimes Mr. Graham and Mr. Buggy asked for photographs of evidence when work was complete.  The Respondent noted that the Complainant was asked by Ms. Byrne to give her a brief account and that it must be noted that the photographs were not in support of his case.  The Respondent noted that the photographs he wanted to send were only to prove that he sends photographs to Danny/Colm to evidence of work he is asked to carry out by them and so when he offered to send more photographs, Ms. Byrne had already seen them on this phone and said it was unnecessary to send them as the photographs were not in dispute.  The Respondent submitted that the Complainant’s submission was aimed at misrepresenting by suggesting that he was prevented from providing any evidence. 

·       The Respondent noted the reference to leading questions at paragraph 35 of the Complainant’s submission and noted that this was not understood by the Respondent.  The Respondent submitted that Ms. Byrne was conducting an investigation rather than an examination in chief in a court/tribunal hearing.  The Respondent noted that the submission also ignored the question preceding same, and noted that Ms. Byrne had stated to Danny Graham, that he, Danny Graham, had reported and suspected that work orders were not completed properly.  The Respondent submitted that the reference to a leading question is misconceived as Mr. Graham had reported the issue in the first place. 

·       The Respondent drew attention to the statement by Danny Graham that “once the paperwork is completed by the end of the week by the lads in maintenance, and is accurate, I’m okay with that ….  I don’t mind when the lads fill out the paperwork, so long as it is done”.  The Respondent submitted that it was not understood why the Complainant was placing emphasis on this statement given that the Complainant did not complete his paperwork accurately and instead falsified the work orders, purporting to show them as complete at a particular time, when this was clearly not the case. 

·       The Respondent noted paragraphs 38 and 39 and appendix 36 relating to a photograph of the boiler press that was shown to the Complainant in his investigation, and the notes of the photograph that were taken when Ms. Byrne spoke to the Complainant in the investigation and Mr. Graham’s response.  The Respondent noted that the statement formed part of the accident investigation report at the time and that this was shown to the Complainant and his response was noted at the bottom of the page.

The Respondent noted that it was necessary to reply specifically to some of the matters in the Complainant’s submission where he appeared to be reopening or attempting to reopen the investigation into his work.  The Respondent submitted that this should not form part of the unfair dismissal claim, i.e. it was not the adjudicator’s function to make a factual determination as to whether or not the Complainant did, as a matter of fact, complete the work or not, or whether it was completed to the required standard etc.  In that regard the Respondent set out the following response: 

1.      That quite simply the Complainant did not do the PM work and admitted that he had not done so.  The photographs provided by the Complainant were of the heat tunnel, the green offal conveyor, the stimulator on hide puller and tallow tank clean out. None of those jobs were in dispute in his disciplinary meetings and the Respondent further noted that he did not complete those jobs alone.  The Respondent noted that the photographs do not advance the matter one way or another. 

2.      In relation to paragraph 48 - the Complainant was somewhat “mixed up”.  The Respondent submitted that the Complainant was asked to recycle the ammonia pump and did not complete it, that the water remover was a different job from the ammonia valve station and was also not completed, as all equipment was left in the area and the Complainant had acknowledged this at a meeting with Ms. Byrne.  The Respondent noted that at page 13 of the investigation notes, the Complainant was shown the photograph of the discarded equipment and he had admitted to leaving it in the yard. 

3.      In relation to paragraph 49 and 50, - the Complainant was given a job to repair the boiler house storage press but he did not repair the mechanism as asked.  The Respondent noted that the door mechanism was repairable and did not need a new lock.  The thatch pond was not completed and it was accepted that photographs were sent but the job remained incomplete.

4.      The Respondent noted that paragraph 51 was correct and that this was flagged by Health and Safety at the time the Complainant was observed on top of the tank.  The Respondent noted that four pallet trucks were not completed, and were left in pieces with parts lost etc.  The Respondent was unambiguous that the Complainant was given four pallet trucks to repair and that the statement about parts to be ordered was not correct or accurate.

5.      In relation to the power pumps, the Respondent noted that the Complainant was asked to fix the pump in the effluent plant, but that the Complainant did not repair it but told Mr. Graham he had repaired it 100%.  The Respondent noted that when Mr. Graham asked him if he had tested it, the Complainant said no.  The Respondent noted that the Complainant was told to open it up again because it would not turn and the Complainant then completed the job but he did not do it alone and required the help of two others.  The Respondent noted that this should have been a one man job.

6.      In relation to the holiday arrangements, the Respondent noted that the process for all employees prior to booking any flights etc, was to complete a holiday request form and have it signed off by a line manager.  The Respondent noted that all employees are made aware of this procedure in their induction and that it was also set out on page 25 of the handbook.  The Respondent further noted that Mr. Graham did speak to the Complainant and told him clearly that he had only 18 days annual left on the system and that this was all he could take.

7.      The Respondent noted that the Complainant had stated that he did not receive notes of the hearing at paragraph 59 and that this was correct.  The Respondent submitted that the Complainant did however receive a detailed outcome from Ms. Hough and that it was notable that the Complainant did not assert that the outcome letter was not accurate or correct.  The Respondent submitted that this was another example of the Complainant appearing to highlight an issue without actually identifying anything substantive. 

8.      The Respondent noted that it was suggested by the Complainant that it was “not clear” in what role Ms. Diaz attended the hearing despite the Complainant having been specifically told of same.  The Respondent noted that the hearing was held in the HR offices via Teams, that Ms. Hough asked the Complainant if he would like the hearing conducted in English, to which he agreed and that she had advised that she would like Ms. Diaz to stay (as she was about to leave the room), in case he had any difficulty with language and he had agreed.

9.      In relation to paragraph 61, the Respondent noted that the correspondence and notes clearly showed that the assertion was utterly misplaced.  The Respondent noted that the Complainant was offered the opportunity to cross examine witnesses, both in the letter sent to him as well as the disciplinary hearing.  The Respondent further noted that the only person he wanted to speak to was Mr. Graham.  The Respondent further noted that during the investigation the Complainant was asked if he would like Ms. Byrne to speak to witnesses on his behalf and he had replied no.

10.  In relation to paragraph 62 of the Complainant’s submission, the Respondent wished to note the following facts in relation to the Complainant’s proficiency in English:

a.      The Complainant was employed in 2021.  He carried out his interview in English

b.      In the two years he was employed he had never requested a translator while in the workplace

c.       He completed all his PM in English and never asked for anything to be translated

d.      All the conversations that the witnesses who will give evidence on behalf of the Respondent, had with the Complainant, during his two years of employment, were in English

e.      His performance review in May 2023 was in English and at no stage did he request a translator, always ending a meeting thanking Ms. Byrne for the opportunity to get his point across, all in English

f.        His email correspondence was all in English

g.       When asked how he would like to conduct his investigation he requested to have it conducted in English; Ms. Byrne told him at the time that Ms. Diaz was a note taker and that if at any time he needed a translation, she would assist

h.      The Complainant understood the questions asked and it is clear from the reading of the notes that he only claimed not to understand Ms. Byrne on one or two occasions when Ms. Byrne asked him if he was trying to mislead her with his responses – only then did he claim not to understand her or the question she asked

The Law:

Unfair Dismissals Act

Fair Procedures

The Respondent noted that the Complainant alleged his dismissal was unfair within the meaning of the Unfair Dismissals Act 1977 as amended.  The Respondent submitted that at all material times the Complainant was afforded full, fair procedures and that the entire process which led to his ultimate dismissal was followed in accordance with the principles of natural justice.  The Respondent further submitted that each step of the process, i.e. suspension, investigation and disciplinary hearing, were conducted in accordance with the Respondent’s disciplinary procedures.  The Respondent noted that the Respondent procedures conform with the Industrial Relations Act 1990 and with S.I.146/2000 Industrial Relations Act 1990 (Code of Practice of Grievance and Disciplinary Procedures) (Declaration Order) 2000. 

The Respondent submitted that the initial suspension with pay was for the purpose of the investigation, was not punitive in nature and that the Complainant was advised of same.  The Respondent drew attention to the matter of suspension of employees as discussed by the High Court in the case of Bank of Ireland V Reilly [2015] IEHC 241, where Noonan J. stated:

“It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct.  It may perhaps be necessary to protect the employer's own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process”.

The Respondent submitted that in this case, the Respondent was very clearly entitled to suspend the Complainant and further submitted that the Respondent is an organisation whose employees work in a dangerous environment and the highest levels of health and safety in the workplace are required.  The Respondent submitted that there can be no derogation from this and that failure in ensuring equipment is working correctly, will have risks to the employees working at the machines and to the consumers of the goods processed in those machines.  The Respondent submitted that the Complainant had been warned in relation to the completion of his tasks previously and it appeared that this had been ignored.  The Respondent submitted that it would have been reckless to have permitted the Complainant to continue his duty pending the completion of the investigation.

The Respondent submitted that the Complainant was advised of his right to representation in each letter that was sent to him during the process and that the investigation commenced within a reasonable time as required by the rules of natural justice.  The Respondent submitted that the entire process was transparent and afforded the Complainant advance notice of every stage as it was progressed and that he also had notice of the matters that would be put to him.

In terms of the investigation, the Respondent submitted that a recent decision of the EAT in Michael Morales V Carton Bros UD835/2011, in which it set out a checklist when determining whether or not an investigation has met the required levels of fair procedures was instructive, in particular the Respondent noted that in the case, the tribunal had noted that to ensure a fair investigation, it was essential:

·       That the employee was aware of all allegations and complaints that formed the basis of the proposed dismissal

·       That the employee had an adequate opportunity to deny the allegations or explain the circumstances of the incident before the decision to dismiss was taken. This includes a right to be represented in appropriate circumstances

·       That the evidence of witnesses of other involved parties was sought where the allegations were denied or the facts were in dispute and

·       the right to be represented by a trade union official or a fellow employee

The Respondent submitted that it clearly met all those criteria and that the investigation was carried out in a manner that was fair and reasonable in all of the circumstances.  The Respondent submitted that there was nothing in the Complainant’s submission that came close to warranting a finding that any part of the investigation was unfair under any of the bullet points set out above, or indeed on any other grounds. 

The Respondent submitted that the initial investigation and in line with the disciplinary policy process, a number of matters were identified as being serious issues in the manner in which the Complainant was carrying out his role, which the Respondent submitted in light of the evidence, namely the admissions on the part of the Complainant, together with his explanation for his actions, was a reasonable determination to make.  The Respondent submitted that the Complainant was advised of same by letter and was provided with all documentation which the Respondent was relying on in initiating the proceedings.  The Complainant was again advised that he was entitled to representation at the disciplinary hearing if he so wished and he was provided with a disciplinary pack which it transpired he ultimately did not actually read. 

The Respondent submitted that the disciplinary hearing allowed the Complainant the opportunity to address any findings of fact made by the investigation and to put forward any other matters that he wished to put forward before Ms. Hough, who was tasked with determining what sanction if any was warranted.  The Respondent submitted that those matters were given due consideration by Ms. Hough and that the decision reached was reasonable in light of same, given the admissions made by the Complainant.  The Respondent submitted that accordingly, the decision made to dismiss was a reasoned one and the reasons for the dismissal were communicated clearly to the Complainant. 

In conclusion the Respondent submitted that the rules of natural justice and constitutional justice, were afforded to the Complainant at all stages and that he was given every opportunity to respond fully to the allegations made against him, and had his explanations and all other arguments and submissions listened to and evaluated before the decision was taken to dismiss him. 

In relation to the decision to dismiss the Complainant, the Respondent opened case law in relation to the proportionality of the decision to dismiss and submitted that it was clear, that the admitted actions of the Complainant left the relationship of trust, which is fundamental to the parties, irreparably damaged and accordingly, the decision to dismiss was entirely reasonable in the serious circumstances of the case.

At hearing, the Respondent Representative outlined that the Respondent had afforded the Complainant a full, fair and thorough investigation and disciplinary procedure.  The Respondent Representative further outlined that there were serious allegations made against the Complainant, that these were subject to investigation and ultimately admitted by the Complainant. It was noted that the Complainant had falsified work order records and it was now clear that the Complainant had never done the work at all.  The Respondent Representative noted that those matters, admitted to by the Complainant, did absolutely constitute gross misconduct and that after a full process of investigation and disciplinary hearings, the decision that he be dismissed was proportionate. 

The Respondent Representative noted that the Complainant was offered the opportunity to provide names of witnesses, to have representation present throughout the processes and was asked if he wished to proceed in English or in his native language.  It was noted that he did not put forward the names of any witnesses, declined representation on each occasion and confirmed that he was happy to proceed in English.  The Respondent Representative noted the requirement for a translator at the WRC hearings and again noted that the Complainant was proficient in English and he stated that this put a question over the credibility of the Complainant. 

In summary the Respondent Representative stated that all matters were put to the Complainant, that there were robust procedures at all stages and that a proportionate sanction of dismissal was applied.  The Respondent Representative noted that the Complainant never appealed that decision. 

Witness evidence – Mr. D. Graham:

Mr. Graham confirmed that he was the Maintenance Manager with the Respondent and had been employed by them for 29 years.  He stated that he was responsible for the day-to-day management and supervision of staff. 

Mr. Graham described the process of issuing PM dockets and maintaining records.  He stated that Mr. Telli was being monitored and was assigned specific jobs.  He stated that on each Monday, the preventative maintenance jobs were printed out and that each engineer would take a number of jobs or issues and that they would be assigned to them.  He described an issue in relation to the pneumatic stand.  He said that it was 1½ times the height of the ceiling and had hand rails on either side but not in front and that employees using it had to wear a harness. He confirmed that it was maintained on a weekly basis and that it was essential to check the stand for any visible issues, e.g. air leaks, water leaks, to ensure a smooth operation.  He stated that there was intense regulation from the Department of Agriculture and that there were always a number of Department of Agriculture officials on site.  He stated that the Department require the PM’s and do a quarterly check of audit reports.  He stated that in relation to customers, that they will often come to the workshop, check paperwork and the signatures and counter signatures on the PM documents.  He said it was a safe management process. 

Mr. Graham confirmed that he had a team of engineers, two who started on the early shift from 5am to 1:30pm, a midday crew and a late crew.  He stated that the rise and fall machine was checked weekly and he confirmed that when Mr. Telli started on a Monday he would have to service that machine.  He stated that this could not be done during production, that the wash down was done at the end of production and it was only after the wash down that the engineers could work on that machine.  Mr. Graham confirmed that engineers have quite a bit of autonomy in that the jobs are not fixed per day, but are required to be completed within the week, and if not complete, that the onus was on the engineer to record that the work was not complete and the reason for such.  He stated that once that was recorded, the work would be reassigned if necessary to another team member and into the following week.  He confirmed that the process was that each engineer did the PM work and that they handed it back to administration if there were any issues and it would then be referred to him for follow up.  He advised that once he received such feedback he would decide if anything further needed to be done and that he had frequent interaction throughout the week with the engineers.  Mr. Graham confirmed that he never had any difficulty with communicating with the Complainant in English. 

Mr. Graham confirmed that there were three issues with the rise and falls stand, that he had checked the PM’s but that all had been signed off by the Complainant.  He advised that based on the issues that arose, he would have expected those PM’s to have been flagged to him.  He confirmed that the downtime resulting from some of those issues, resulted in everybody stopping work and the engineers having to fix the machine again and test it before everybody could return to work.  He stated that 50 people were impacted at the time and were left standing around and that there were three breakdowns in the space of 3-4 weeks; which, he stated, was unusual. 

Mr. Graham stated that when these issues occurred, he checked the PM dockets first and all the relevant jobs had been assigned to Mr. Telli.  He stated that he spoke to Mr. Telli who said that everything was okay, and based on that, Mr. Graham checked the CCTV footage versus the PM sheets and he noted that Mr. Telli was never there at the time that he stated on the form that he had completed the work.  Mr. Graham noted that these dates were between 17th and 28th July.  He noted that all PM’s had been signed off as being complete and in order.  He further noted that the dates on the PM’s for the three different rise and falls stands, were all the same time and date.  He noted that Mr. Telli had been working in Portlaoise for a short period and then had returned to Clonee and that it was around this time that these issues had occurred. 

Mr. Graham confirmed that he had checked the CCTV for all the downtime days and had noted that there was no sign of Mr. Telli working on those machines.  He stated that he brought these matters to the attention of Ms. Byrne in HR, that he outlined his concerns and he identified the issues he believed should have been flagged up.  He stated that when working on the rise and fall machine, the PM dockets would normally be filled out back at the workshop that evening, as it was not practical to fill them out at the machine at the time.  However, he noted that the PM dockets for the machines, showed that the Complainant was in multiple places at the one time.  Mr. Graham stated that it was essential to have trust in the engineers, that you cannot micromanage a whole group like that, and that the engineers are expected to record what is done.

Mr. Graham confirmed that there were other problems, for example with the ammonia pump and the silt in a truck and that there were other issues relating to general request jobs that were attempted but not completed.  He stated that the PPM record however was the more serious issue, that when work is not done it is most serious and that a fall resulting from something like that, could result in serious injury to other workers.

In relation to holidays, he stated that he asked the Complainant for his plans.  The Complainant had advised him that he was hoping to take holidays in September but had not finalised his dates.  Mr. Graham stated that when the Complainant confirmed that he had his tickets booked, he had actually booked for a period of 25 days but he had only 18 days available.  He said that Mr. Telli had said to him that he had to see his family and that he had to book the holiday, however, Mr. Graham stated that the procedure was clear, that each employee needed to check their leave arrangements with management before booking. 

Under cross examination Mr. Graham confirmed that the number of PPM jobs assigned per week varied, depending on the job; but that each engineer was assigned approximately 30 dockets.  He confirmed that the wash down finishes each day at 6:30pm and that it is only after that time that the jobs can be done.  He stated that approximately 35% of the work of an engineer related to planned preventative maintenance.  He confirmed that certain jobs needed to be completed on a daily basis, others weekly and others perhaps once every six months.  He confirmed that the rise and fall platforms needed to be serviced weekly and he confirmed that the same individual gets the same job.

Mr. Graham confirmed that the dockets would be overseen by the manager and would be checked by an auditor and that it was fair to say that it was less accurate if completed a day later. 

In relation to the statement given by him in his interview with Ms. Byrne, the Complainant Representative noted that he had stated that he had no issue with the document being completed by the end of the week and he confirmed that that was the case, as long as the work was done and the paperwork was done.  He accepted that there could be some inaccuracy if forms were completed for 30 jobs five days later.  Mr. Graham confirmed that he had checked the CCTV in relation to the work orders and that while he could not confirm the exact dates he had examined, he had looked at the full week and he had watched the footage at four times the speed.  He confirmed that he watched from 12 noon to 8:30pm and that was the shift that Mr. Telli had worked on the dates in question.  The Complainant Representative noted that this had not been referred to in the interview and Mr. Graham confirmed that it wasn’t because he had not been asked about it. 

The Complainant Representative put it to Mr. Graham that Mr. Telli would say that the check on the stands was to be a visual check only, to which Mr. Graham responded that that was not correct, that it was clear on the form and that it described specifically what actions were necessary.  It was put to Mr. Graham that Mr. Telli would say that he did complete the jobs and Mr. Graham stated that he did not accept that. 

Mr. Graham was asked about the health and safety investigation arising from the steam valve incident.  Mr. Graham confirmed that the top had exploded on the valve and he confirmed that he was not sure when the investigation had concluded, that the matter rested with the Health and Safety Officer.  It was put to Mr. Graham that this incident formed part of the allegations against Mr. Telli and Mr. Graham confirmed that that was the case.  The Complainant Representative brought to attention the letter of 4 August 2023 which stated that the matter was “currently under health and safety investigation” and he asked Mr. Graham if he accepted that that implied that at that time, the investigation was still ongoing. and Mr. Graham advised that it would seem to imply that was the case. 

It was put to Mr. Graham that Mr. Telli was treated differently, that he had less autonomy and was kept under focus by management in relation to jobs assigned to him.  Mr. Graham confirmed that Mr. Telli was given the same range of jobs as other engineers, and he confirmed that Mr. Telli was not put on a formal performance improvement plan. 

In relation to the rise and falls stand, Mr. Graham stated that Mr. Telli was required to carry out a visual inspection including hydraulics and that it was quite clear on the document what needed to be done, that there was no ambiguity, as the steps were laid out on the form.  He stated that there were two cracks in the stand and that the water pipes were showing signs of damage and he stated that these should have been obvious if the work was done, and should have been brought to attention. 

Mr. Graham confirmed that Mr. Grogan, the Operations Manager, had carried out a machine check at 08:00am each day but that this was a functionality check and not a PM check.  He stated that the PM check was a much more in-depth check in relation to the mechanics of the machine.  He stated that it was not credible that a PM check would be done and that suddenly an issue would arise, if the test carried out was okay.  He confirmed that he was of the view that things could happen randomly, but that three in quick succession was highly unusual.  He again confirmed that the purpose of the function test at 08:00am in the morning, was to make sure that the stand was working before the operator arrived. 

In relation to the holiday issues, Mr. Graham confirmed that Mr. Telli had emailed him, but that he had already booked his flights on 24 July.  He stated that he confirmed verbally to Mr. Telli that it was a problem, that he had only booked 18 days on the system as that was all the leave he had available.  He confirmed that he did not tell Mr. Telli that this would become a disciplinary issue but that he had advised Ms. Byrne a few days later that the holiday arrangements had been over booked. 

In relation to the Complainant’s use of English, he stated that he always spoke to him in English, always thought he understood him and had no issues.  He confirmed that he had a number of other non-Irish members on the team and that all conversations were held in English.  He confirmed that the PM dockets were all in English and that the procedure to be carried out was in English.  The Complainant Representative put it to Mr. Graham that the PM dockets were all accurate according to Mr. Telli and Mr. Graham stated that he did not accept that, that a number of jobs were listed as complete at the same times and on the same dates, and therefore could not be accurate.

The Complainant Representative put it to Mr. Graham that Mr. Telli would say he did complete a visual inspection of the stands, to which Mr. Graham replied that what was required in order to complete the work was the work instructions on the PPM document and that these were not done.  Mr. Graham confirmed that the impact of not completing the work was that an accident could occur and another employee could be badly injured or killed and he said that if the documents did not reflect what was done or not, they had no value in terms of protecting the safety of employees.  Mr. Graham confirmed that he was of the view that Mr. Telli was not overworked. 

Witness evidence - Ms. Annemarie Byrne

Ms. Byrne confirmed that she was the HR Manager and that she had been working with the Respondent for approximately eight years and that she had over 30 years’ experience in HR.   She confirmed that Mr. Graham first brought matters to attention and that they related to issues regarding the Complainant’s failure to complete PM checks.  She confirmed that she was appointed as the investigator and that she advised Mr. Telli by email.  She confirmed that she had dealings with Mr. Telli before and that she had general conversations with him about being in the canteen and that there had been some general issues.  She confirmed that she found Mr. Telli to be very competent in English and was surprised at his need for an interpreter at the WRC. 

Ms. Byrne confirmed that at the time of her interview with the Complainant, he was already suspended because of concerns that he had not completed the PM checks.  She confirmed that initially the Complainant said that he had done the checks, but that when there was no evidence of him having done them on CCTV, he admitted that he had not.  Ms. Byrne confirmed that she checked the CCTV footage for the 17th, 19th and 20th and that two other members of staff checked the remaining days.  She stated that when she had checked further work orders and sheets, there were further concerns and that she spoke to ‘Anna’ about doing a further check on CCTV and from that a summary of what was seen was collated.  Ms. Byrne confirmed that she spoke to ‘J.O.’ who is an electrician and that she had spoken to Mr. Colm Buggy and that all notes were made available to the Complainant.  She confirmed that all notes formed part of the disciplinary pack and that all information gathered, photographs taken etc, were provided as part of that pack.  Ms. Byrne confirmed that she drafted the disciplinary pack and asked Ms. Hough to carry out the disciplinary meeting and that after that time she had no further involvement. 

Under cross examination Ms. Byrne confirmed that the copy of statements made at investigation stage, were first made available to the Complainant at the end of the investigation and she confirmed that at the outset of the investigation, the Complainant did not have documentation.  She confirmed that the issues were first brought to attention towards the end of July and that as a result she contacted the Operations Manager, Mr. Grogan.  She confirmed that Mr. Grogan suspended Mr. Telli because of concerns that the PM checks had not been done and that this was a pending investigation. 

The Complainant Representative put it to Ms. Byrne that the investigation was tainted by prior judgement.  She advised that this was not the case, that Mr. Grogan had been the person to place Mr. Telli off duty and that she had been the person agreed who would conduct the investigation.  She accepted that she had been involved but that her involvement had been limited up to that point.  In response to a question from the Complainant Representative, Ms. Byrne confirmed that Mr. Grogan did not have assistance in formulating the letter placing Mr. Telli off duty, but rather had used a draft letter template which was accessible from the management shared drive.

In relation to the health and safety investigation, Ms. Byrne confirmed that she did not know when that investigation had concluded, that she never saw any conclusion to that investigation, that she was told that it was done by Ms. Da Silva, but that she only saw the statement that was included in the disciplinary pack.  Ms. Byrne again confirmed that nothing had been sent to Mr. Telli in advance of the meeting and she confirmed that there was no terms of reference but that the investigation was limited to the allegations set out in the letter of 10 August. 

It was put to Ms. Byrne that there was no formal record of a conclusion of the health and safety investigation to which she responded that she believed there was but that she hadn’t seen it.  She confirmed that she did consider the conclusion of the health and safety investigation to be relevant but that when she didn’t have it, she had instead used Mr. Graham’s statement.  She confirmed that she thought the statement from Mr. Graham was sufficient.  However, she did now accept that the report of the health and safety investigation was pertinent. 

Ms. Byrne also accepted that the Complainant had never been provided with CCTV footage.  She confirmed that this was because there was nothing to view as he was not present at any of the times listed on the PPM document, or indeed at other down times around those dates.  Ms. Byrne stated “he wasn’t there, so there was nothing to show him”. 

The Complainant Representative raised with Ms. Byrne the performance issues referred to in her meeting of 14 August with the Complainant and was asked if she accepted that she was bringing performance issues into the investigation that were not pertinent and Ms. Byrne confirmed that she did so. 

In relation to the emails to Mr. Galvin, she confirmed that she had emailed him and he had given a response but that she had never interviewed him and that she wasn’t speaking to him outside of the investigation but that she believed she was doing a thorough investigation.  She confirmed that she contacted Mr. Galvin in Portlaoise to get an overall view and that she believed this didn’t detract from her doing a thorough and focused investigation and she accepted that the correspondence issued to the Complainant set the limits of the investigation. In that context, the Complainant Representative queried why she contacted Mr. Galvin when the scope of the investigation was clear, to which Ms. Byrne replied that she was taking an overall view.  It was put to Ms. Byrne that this was in fact a fishing expedition and that the investigation was without focus to which Ms. Byrne replied absolutely not. 

The Complainant Representative drew attention to errors in the notes of some meetings under the investigation procedure which Ms. Byrne described as typing errors and the Complainant Representative put it to Ms. Byrne was this not what the Complainant was accused of.  Ms. Byrne replied that no, the mistakes on the PPM dockets were more than simply a typing error, he was not there and the work had not been done.  The Complainant Representative put it to Ms. Byrne that the Complainant only accepted that he hadn’t done the work after about seven hours of ‘grilling’, to which Ms. Byrne responded that ‘there was no grilling’.  Ms. Byrne accepted that the Complainant had shown her the photographs and that she had viewed them, but unfortunately had not noted them in her report.  She accepted that Mr. Graham had confirmed that he was satisfied if engineers filled out their PPM documents by the end of the week and she accepted that it was more likely that errors would occur in such circumstances.  She confirmed that the review of the CCTV was based on the time on the forms but that she had looked at other downtimes to check if the Complainant was present at any other time carrying out the duty. 

The Complainant Representative noted that the statement from Mr. Graham regarding the steam valve was not signed and Ms. Byrne accepted that was the case.  It was put to Ms. Byrne that in that statement, there was no accusation against the Complainant and Ms. Byrne was asked if she accepted that that was the case, to which she responded ‘I suppose I do’.  Ms. Byrne confirmed that in her view her investigation was not about performance issues but was more about misconduct.  She confirmed that in relation to a performance improvement plan, she had met with the Complainant in May before going on holidays and that she had a plan to put him on a performance plan upon her return but that when she came back from holidays, he was already in Portlaoise. 

The Complainant Representative noted that most documentation was not in Portuguese but that the first letter issued was in Portuguese was the dismissal letter.  Ms. Byrne confirmed that this was because he had good English and she confirmed that she had no concern about his standard of English.  She further confirmed that the main role of Ms. Diaz at the meeting was as a note taker but that she was also there to assist with translation if it was required but she confirmed that there was no translation required throughout the meeting. 

The Complainant Representative put it to Ms. Byrne that where she described the Complainant as being “evasive”, perhaps it was a case that he was not fully understanding what was being put to him in English.  Ms. Byrne confirmed that she had interviewed him in English and that all her interactions were in English and that she had no concerns in relation to the Complainant’s standard of English.  She confirmed that she had no role in preparing the dismissal letter which was in Portuguese but that she wasn’t surprised that it had been issued in Portuguese.  Ms. Byrne confirmed that she did offer the Complainant the opportunity to call any witnesses but that he didn’t want to call any, and that eventually she accepted that that was the case.  She stated that the only person the Complainant wanted to call was Mr. Graham. 

The Respondent Representative asked some further questions of Ms. Byrne by way of clarification and as part of that process she provided the following clarification:

She confirmed that at no stage did the Complainant ever say that he had made errors on the PPM documents.

Ms. Byrne also confirmed that she had not been directly in touch with Mr. Graham before the investigation and that the reference at page 151 to a previous conversation, referred to one which had occurred back in the previous May.  She confirmed that she did not believe that the process was tainted by prior judgement, that she was offended by that comment, and that she didn’t work with the Complainant, that she only met him in May of that year.  She confirmed that her understanding of her role was to conduct the investigation and present a pack of the facts and the evidence and then to step away from the process.  Ms. Byrne also confirmed that if she had found that there wasn’t evidence to support an allegation, the issue would have been dropped, but that if she found evidence that supported the allegation then it was upheld.  She confirmed that it was not her role to make findings, that it was simply to make an assessment. 

Witness Evidence – Ms. Diaz

Ms. Diaz confirmed that she was involved in assisting Ms. Byrne as part of the investigation process and that she worked as the HR administrator.  She confirmed that at the investigation she was present as a note taker.  She confirmed that throughout the investigation process she was not required to translate for the Complainant and she confirmed that she considered that the Complainant had the same level of English as she herself had and she noted that when he was avoiding answering a question, he then asked to have a translation. 

Under cross examination Ms. Diaz confirmed that there was no translation required at the disciplinary hearing.  The Complainant Representative put it to Ms. Diaz that she had described herself in the minutes of various meetings as the note taker/translator and asked why do that if there was no requirement for her to translate.  Ms. Diaz responded that this was simply a template that was set up and that she had not amended it but she confirmed that the Complainant did not need translation. 

Ms. Diaz confirmed that Ms. Byrne was her manager. 

The Complainant Representative put it to Ms. Diaz that there was a question put to the Complainant which was listed on page 110 of the submission, which showed that she had asked a specific question.  Ms. Diaz responded that it was not her, that she did not ask any questions, that the initials ID were typed in error and that the question was actually put by Ms. Byrne.  The Complainant Representative directed Ms. Diaz to page 111 of the submission where a further question was asked and it was indicated that Ms. Diaz had asked the question.  Ms. Diaz said it was simply another error, that she had not asked any questions.  She stated that it was simply a typing error. 

Witness evidence – Ms. Hough

Ms. Hough confirmed that she was the Director of HR with the Respondent for approximately nine years and that she had a Masters in HR and Employee Relations from NUIG. 

She confirmed that when she first became involved in the process for the disciplinary hearing, that she had reviewed the disciplinary pack and issued letters to the Complainant, prepared transcripts of meetings etc.  She confirmed that she had initially reviewed the allegations, read the disciplinary pack and prepared for and scheduled the hearing.  She confirmed that the first meeting took place on 13 October online via Teams and that the Complainant was invited to attend at the Clonee site.  She confirmed that the invitation issued outlined the process, the arrangements, the roles etc in the hearing.  She confirmed the potential outcomes of the process and she confirmed to the Complainant that he had the right to add witnesses to the process and to have representation present. 

Ms. Hough confirmed that at the first hearing, everybody was present but that the Complainant did not attend.  She confirmed that she made contact with him and that he arrived 35 minutes late.  She further confirmed that the Complainant had stated that he had not read the content of the disciplinary pack and so she had adjourned the hearing and rescheduled to a later date. 

Ms. Hough confirmed that at the beginning of the next meeting she asked the Complainant if he had read the pack and that he confirmed he had.  She stated that the Complainant was present and Ms. Dias and Ms. Byrne were also present.  She confirmed that she asked him again if he wished to bring representation and if he was happy to conduct the process in English and he confirmed that he was.  She asked him if had read and understood the disciplinary pack that was issued to him and he confirmed he had.  Ms. Hough confirmed that the Complainant declined to have matters translated, that he confirmed that he was happy to proceed in English and that he had read and understood the allegations that were being put to him. 

Ms. Hough confirmed that Mr. Graham joined the meeting and that the Complainant had said that he respected him and he respected his decision; and in that context he didn’t challenge Mr. Graham’s statements.  She confirmed that he was given the opportunity to call witnesses but that he only wanted to call Mr. Graham.  She confirmed that she had taken hand written notes at the hearing and that she used those notes to inform a detailed response letter.

Ms. Hough confirmed that at the disciplinary hearing in relation to the silt, the Complainant did not challenge Mr. Graham’s account and that she had outlined same in the disciplinary letter.  She confirmed that the reasons for having wrong times and dates on the PPM documents kept changing between the investigation and the disciplinary process and she further confirmed that there wasn’t a full translation given but that he did require some assistance whenever he was asked for clarity or where she felt that additional clarity was necessary.  She said she viewed the level of translation required at the WRC hearing to be farcical. 

Ms. Hough stated that she had lots of experience of working with foreign nationals as there were many foreign nationals working for the Respondent.  She stated that she was absolutely satisfied with the Complainant’s ability to understand all aspects of the process.  She stated that she was satisfied to uphold the allegations he had accepted, that she wanted to consider further one allegation and that she had reached out to the Complainant and gave him a chance to respond and that she gave him a number of days but that ultimately, she did not uphold that final allegation. 

She stated that when she issued the letter, she confirmed to him that she had upheld all but one allegation.  She advised that she first informed him by email and then sent a follow up letter to that effect a few days later.  Ms. Hough confirmed that she gave the Complainant an opportunity to make any submissions he wished in relation to possible sanctions and that she did consider options in relation to sanctions, up to and including dismissal.  Ms. Hough confirmed that given the evidence set out in the pack and at the hearing and the risk of the Complainant reoffending, the volume of PPM’s, the safety of other employees and employees of the Department of Agriculture present on site, the reputation of the business and the highly audited industry, the number of flaws that had been found at audit, and the potential serious implications, she felt that the matter warranted dismissal, that the trust between the Complainant and the Respondent was fractured beyond repair. 

Ms. Hough confirmed that she communicated her decision on 24 October 2023 to the Complainant in both English and Portuguese and that she had the correspondence translated because she had been long enough working in the HR industry to have seen people raise issues regarding their inability with the English language.  The Complainant Representative objected to this statement.  She further confirmed that she had outlined in the letter that the Complainant had a right of appeal but that no appeal was made. 

Under cross examination Ms. Hough confirmed that Ms. Diaz was present at the meeting on 17 October 2023 to provide translation as necessary.  She stated that at the meeting on 17th October, Ms. Diaz attended the meeting for the purpose of providing translation where necessary.  She said that she gave translation when needed and confirmed that that was her recollection of the meeting.  The Complainant Representative noted the contradiction between that and Ms. Diaz’s evidence.  Ms. Hough responded that was Ms. Diaz evidence but that it was not her recollection of the events.  Ms. Hough confirmed that Ms. Byrne read out the allegations and that was the end of her involvement in the process.  She confirmed that after Ms. Byrne read through that she put the allegations to the Complainant and that he accepted allegations 1, 2, 3 and 5.  The Complainant Representative put it to Ms. Hough that the Complainant would say that he did not accept those allegations and asked if she was surprised that he had suddenly accepted allegation number 3.  Ms. Hough responded that she was not surprised, that perhaps when he read the evidence, he accepted it.  

Again, the Complainant Representative put it to Ms. Hough that it was clear from the investigation minutes that the Complainant had never made an admission before in relation to the steam valve and surely, she was surprised that he had suddenly accepted it.  Ms. Hough responded that no, she was not surprised. 

The Complainant Representative referred to the disciplinary pack and the fact that the health and safety investigation had not been completed and asked if Ms. Hough accepted that and Ms. Hough said, “well if that’s what it says”.  The Complainant Representative asked how Ms. Hough was able to make a decision in the absence of the outcome of that investigation and Ms. Hough confirmed that she made the decision on the basis that the Complainant had accepted responsibility for the matter and that she had also relied upon Mr. Graham’s evidence which was unchallenged by the Complainant.  The Complainant Representative put it to Ms. Hough that there was nothing to ground this allegation and Ms. Hough stated that there was, there was his acceptance that he not done the work.  The Complainant Representative put it to Ms. Hough that this complaint should not have come before her, as there was nothing to ground the complaint in advance of the disciplinary hearing to which Ms. Hough responded that there was Mr. Graham’s statement.  The Complainant Representative put it to Ms. Hough that this statement had no accusation against the Complainant and also put to Ms. Hough that this statement did not contain any allegation against the Complainant. Ms. Hough responded that this informed an allegation that ultimately the Complainant accepted.  The Complainant Representative noted his disagreement in relation to the grounding of this allegation. 

In relation to witnesses, Ms. Hough confirmed that the only witness called was Mr. Graham.  It was put to Ms. Hough that in the letter of 6 October, the Complainant was advised “he will be given an opportunity to call witnesses …” and that this had not happened.  Ms. Hough responded that it absolutely did but that the Complainant only wanted to speak to Mr. Graham. 

The Complainant Representative noted that the disciplinary process provided for the person conducting the disciplinary hearing to call witnesses and noted that Ms. Hough had not called any witnesses.  Ms. Hough responded that Ms. Byrne had the right to call witnesses but that she had previously met them and had provided their statements in the disciplinary pack and she confirmed that the Complainant had plenty of opportunity to call witnesses if he wished, however the Complainant Representative noted that in the context that those conducting the disciplinary hearing had not called witnesses, the Complainant was denied the opportunity to question witnesses.

The Complainant Representative put it to Ms. Hough that this meeting could not be described as a hearing when Ms. Byrne did not call any witnesses and he put it to Ms. Hough that she didn’t want to hear evidence from anyone.  Ms. Hough responded that she didn’t need to.  The Complainant Representative put it to her that it could all be decided on paper evidence and Ms. Hough responded that no, if no witnesses were called, that’s what she had to rely upon.  Ms. Hough confirmed that she did not view CCTV footage herself and that she relied upon the CCTV transcripts but that she did not interview Ms. Da Silva who had prepared that transcript.  She confirmed that the main reason she accepted this was the acceptance of the Complainant in relation to the allegations.

The Complainant Representative put it to Ms. Hough that only two documents throughout the process had been translated, her letter and the disciplinary policy and asked Ms. Hough if she felt that was reasonable.  Ms. Hough confirmed that she had thought it prudent to do so, but that she could only take responsibility for the element of the process for which she was responsible.  The Complainant Representative put it to her that she had implied that she was long enough in the game and that was why she had her documents translated.  Ms. Hough confirmed that was the case and she accepted that it was prudent and she went above and beyond and that she could only take responsibility for her own actions.  The Complainant Representative put it to Ms. Hough that she should have been concerned in relation to fair procedure and asked did she not think that all documents should have been translated in advance.  Ms. Hough confirmed that she only felt it necessary to have her own letters translated.  She confirmed that she accepted that the first time the allegations were translated was in her letter of dismissal and that she understood that this was because the Complainant had indicated that he was happy to proceed in English and that there had been no reason to doubt him. 

The Complainant Representative put it to Ms. Hough that she was not a linguistics expert and that she was not necessarily a good judge of linguistic ability.  However, Ms. Hough stated that she perfectly understood what the Complainant said and believed he understood what she had said. 

In relation to the sanctions considered, the Complainant Representative noted that Ms. Hough had listed a number of factors that formed part of her decision making and noted that she had not put them in the dismissal letter.  Ms. Hough accepted that this was the case.  The Complainant Representative noted that it was unusual to take account of the risk of reoffending given that the risk of reoffending is punishing somebody for something that they haven’t done.  Given that that was one of the reasons Ms. Hough had outlined for her decision to dismiss, the Complainant Representative put it to Ms. Hough that she should have put that to the Complainant and allowed him an opportunity to respond.  Ms. Hough stated that she had asked the Complainant what he would have done differently and that he had been vague in his response.  She accepted that it was not in the letter as the reason for the dismissal. 

Ms. Hough confirmed that the disciplinary hearing lasted for a number of hours, that it was a complex case and she confirmed that she had decided in the hearing all but one of the allegations.  She confirmed that this was on the basis of the Complainant’s acceptance of those allegations.  She confirmed that she did take a break in the meeting, she did not accept that it was unusual for the decision maker to make the decision in the meeting as the decision she made was in relation to the allegation and not the appropriate disciplinary sanction. 

Replying Submission to ComplainantPost hearing Submission on Redress

On 30 January 2025 the Respondent provided a replying submission in relation to redress.

In relation to the calculation of overtime the Respondent submitted the following:

·       That the Complainant was suspended on the 4th August, 2023 and dismissed on the 24th October, 2023.

·       That it must be borne in mind that the inclusion of overtime in his claim against the Respondent is of significant importance for the Complainant as it allows him to claim ongoing losses.

·       That when he commenced working for both new employers, he started on a greater basic wage than he was on with the Respondent.

·       That the Complainants’ reliance on his overtime claim is to attempt to claim a differential loss from the time he recommenced employment, which he alleged was ongoing.

·       That for reasons which are not explained, the Complainant has selected a standalone period from 3rd February, 2022 – 16th November 2022 to calculate his average overtime and that this is effectively selecting a random and ambulatory period of time in his employment. The effect of the selection of this time period is a grossly inflated claim for overtime, which then has a knock-on impact on the alleged continuing losses.

·       That the period selected is self-serving and intended to maximise his claim (and does so successfully) and that there is no rational basis for selecting a random, standalone period for calculating overtime and it is submitted that the calculation should be made on the basis of the average overtime for 2023 and that accordingly, the calculation above commences in pay period 1 of 2023.

·       That if one considers the overtime that was worked from pay period 1 in 2023, up to the date of his suspension1 (suspension commenced on 4th August, 2023), this shows an average of 16 minutes overtime per week, equating to €8.07 of earnings per week.

 The Respondent noted that the Complainant had exhibited payslips including the payslips from pay period 1 (2023) but cease at pay period 13 (2023). The Respondent exhibited the full 2023 and acknowledged that there was a reduction to €18.00 in pay period. The respondent further noted that the correct rate of overtime pay was €30.00 per hour (time and a half, at a basic rate of pay of €20.00) which equates to €30.00 per hour overtime), and the average 2023 overtime figure is calculated on that basis.

In these circumstances the Respondent submitted that the Complainant’s claim that he received an average overtime payment of €267.21 is grossly inflated and further submitted that the Complainant worked an average of 16 minutes overtime per week, with an average overtime payment (at €30 per hour) of €8.07

The Respondent submitted that the following is the correct application of the correct hourly rate and losses arising from the dismissal:

1.      Period A: 11 weeks out of work post-dismissal

The Complainant had a gross weekly wage of €800.00. He had an average weekly overtime of €8.07. This gives a gross loss during the eleven weeks of €8,877.00.

2.      Period B: Period with 1st New Employer

When the correct average overtime figure is applied to this period, the Complainant’s claim for this period of employment ceases, as it is clear there is no gross differential loss. He was paid a greater basic wage and suffered no recoverable losses during this period of work.

3.      Period C: Period with 2nd New Employer

Similarly, when the correct average overtime figure is applied, the Complainant’s claim for his period of employment with the 2nd employer ceases, as it is clear there is no gross differential loss. He was paid a greater basic wage and suffered no recoverable losses during this period of work. Furthermore, he has never had a guarantee of overtime while working with the Respondent and therefore is not entitled to claim an overtime loss now in his role with the new employer.

4.      Period D: Ongoing Losses

The Respondent submitted that the Complainant has no ongoing losses, as he is in a better position financially in his current role.

5.      Finally, the Respondent submitted that it is not clear if the Complainant was paid any State benefits during his period of unemployment of 11 weeks. Clarity is required as in the event he received jobseekers’ allowance, this would need to be deducted from the claim made during those 11 weeks.

Calculation of Losses

The Respondent submitted that the remedy of compensation is described in s 7(1)(c), as amended by s 6(a) of the 1993 Act, as: “(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 s 17 of this Act) as is just and equitable having regard to all the circumstances…”

The Respondent noted that the High Court has said of the above provision that: ‘The legislation does not envisage the deciding body being required to always, or perhaps ever, engage in a calculation or mathematical formula by which it determines the extent of the financial loss exclusively by reference to the weekly remuneration of an employee.’2

The Respondent submitted that the Complainant’s submissions had approached the calculations of his alleged losses in a binary manner, without any regard to the totality of the circumstances. If the Complainant is to succeed (and it is denied that he is entitled to succeed at all) then his losses must be severely limited on account of his own contribution to his dismissal. The Respondent submitted that it was a matter for the Adjudicator to have regard to the evidence that was heard, but it will be recalled that no explanation was ever offered for his various changing accounts as to why he did or did not complete the paperwork in question. He was evasive when cross-examined on this issue, to put it mildly. The Respondent submitted that it would not rehash the evidence but would simply state that the Complainant’s evidence could only lead to a conclusion that he did in fact contribute heavily to his own dismissal.

 Contribution to Dismissal:

The Respondent noted that an employer bears the burden of satisfying the WRC that an employee contributed to his or her own loss. The EAT has interpreted s 7(2)(a) and (b) as requiring action that is ‘blameworthy’ in some way. The conduct, competence, and so on, of the employee must be known to the employer at the time of the dismissal in order to rank as contributory action under s 7(2)(b).

The Respondent drew attention to the 3rd edition of “Redmond on Dismissal Law” in this regard.

The respondent submitted that if the Complainant was to succeed, his contribution should be deemed to be very significant, that he was aware that what he was doing in falsifying records was incorrect, changed his account on numerous occasions and never actually explained why he did what he did. The various breaches were all serious, and in particular the falsification of paperwork breach was an egregious and serious one, going to the heart of health and safety within the workplace.   The Respondent further submitted that it would be neither just nor equitable to assess the Complainant’s claim as per the submissions made on his behalf and it would not accord with the reality of the overall factual situation, and would send an alarming signal, if an employee who had conducted themselves in the manner which the Complainant did were to receive anything other than greatly limited compensation.

In conclusion the Respondent submitted that the claim for overtime and ongoing losses was grossly exaggerated and inflated. The manner in which this was presented and prosecuted should be considered when determining what is “just and equitable” per in s.7(1)(c).

I have given careful consideration to the submissions provided by the parties, together with all supporting documentation, and to the case law relied upon by the parties.  I have also taken account of the witness evidence given under oath/affirmation and have made my own enquiries in order to fulfil my obligation to fully investigate the matters before me.

In the first instance, I consider it important to clarify the role of the Adjudication Officer in relation to a complaint of unfair dismissal.  In this regard I rely upon the established case law which determined that the role of the Adjudication Officer is not to determine whether or not the Complainant did or did not carry out the act of which he/she was charged but rather to establish if the Respondent has proven that the dismissal was not unfair and in so doing to determine if the decision to dismiss was a proportionate response and within the band of sanctions which could be imposed by a reasonable employer.  In such circumstances I will not seek to determine if the Complainant acted as alleged by the Respondent, but rather I will seek to determine if the Respondent has proven that the dismissal was fair and proportionate in all the circumstances of this case.

In that regard I will consider each of the following:

·       Procedural Fairness

·       Proportionality/Reasonableness of the decision to dismiss

Procedural Fairness

I noted the following procedure utilised by the Respondent:

·       The Complainant was placed on paid suspension with effect from 4 August 2023 and was issued with a letter of the same date confirming that suspension “pending an investigation into your conduct and performance”.  The letter also outlined the following allegations:

o   That the Complainant was alleged to have signed and confirmed completion of work orders where the work orders appeared not to have been completed ( a full list of dates and work orders etc was included)

o   That the Complainant was alleged to have failed in his duty to safely carry out works on a steam valve that resulted in an explosion (it was confirmed that this matter was under separate health and safety investigation)

o   That the Complainant was alleged to have failed to follow the holiday process and secured flights before having his holidays authorised by his manager

A list of 9 other works that it was alleged was not completed by the Complainant was also set out. The correspondence also confirmed that a disciplinary investigation would be established and that the investigation may lead to a disciplinary hearing which had the potential to result in sanctions, up to and including dismissal, being imposed on the Complaint.

·       The Complainant was written to on 10 August 2023 by Ms. Anne-Marie Byrne, who confirmed that she had been appointed to conduct the investigation.  In that correspondence she confirmed again the allegations that were under investigation and the potential consequences of the process.  She invited the Complainant to a meeting and advised him to “have available any relevant facts or documentation” relevant to his case.  She also advised him of his right to “bring a colleague or representative to the meeting and she provided the Complainant with a copy of the Respondent Disciplinary Procedure.

·       The first meeting with the Complainant took place on 14 August 2024, at which, Ms. Byrne’s first action was to put the allegations to the Complainant and ask if he understood.  The Complainant confirmed that he did.  He also confirmed that he had received and understood the invitation to the investigation meeting. Ms. Byrne then asked if the Complainant, given his level of proficiency in English, he could confirm that he wished to proceed with the meeting in English and that all correspondence would be in English.  The Complainant advised that “yes, I want to do this in English”

·       Ms. Byrne showed the Complainant copies of photographs of various machines/equipment and showed him copies of the PM dockets signed by him.  Over the course of a number of days she put each allegation to him and asked for his account of the issue. 

·       Ms. Byrne met with the Maintenance Manager, the Assistant Maintenance Manager and a number of colleagues of the Complainant as part of her investigation.

·       On 6 October 2023 Ms. Byrne wrote to the Complainant to confirm that the investigation was now complete and that she had decided to refer the matter to a disciplinary hearing. She advised that Ms. Hough would conduct the meeting and would be the decision maker in that process.  She further confirmed the allegations against the Complainant that Ms. Hough would adjudicate upon and that she would also be the decision maker in relation to any disciplinary sanction that might be imposed.  In that correspondence Ms. Byrne also set out, in some detail the procedure that would be followed in the meeting.  A disciplinary pack containing the notes of all meeting held as part of the investigation, copies of work orders, photographs relevant to the various allegations were appended to that correspondence.

·       The first disciplinary hearing was scheduled for 13 October 2023 but the Complainant failed to attend.  He subsequently arrived late, after he was contacted and then confirmed that he had not read the disciplinary pack provided to him.  Ms. Hough adjourned the meeting and rescheduled for 17 October.

·       On 24 October 2023 Ms. Hough issued her decision arising from the disciplinary meeting.  In that correspondence she confirmed that the Complainant had accepted the allegations set out at no’s 1,2,3 and 5 in that correspondence.  She that she was upholding all the disciplinary allegations with the exception of no. 4d.  Ms. Hough referred to earlier correspondence which had been issued to the Complainant advising him of her decision and giving him the opportunity to make representations in relation to potential sanctions.  She noted the responses received related to statements that the Complainant was “being wronged” but that nothing was forthcoming in relation to sanctions.

·       That letter advised the Complainant of his right to appeal the decision to dismiss but ultimately the Complainant did not make any appeal.

Having reviewed all of the above in some detail I consider that the Respondent followed a robust process in addressing matters which gave rise to his dismissal.  I noted that at all times the Complainant was made aware of the details of the allegations against him and of the seriousness and potential consequences that might arise.  He was afforded the opportunity to bring a representative, and to put forward witnesses and he chose not to do so. 

Much was made of the failure of the Respondent to provide an interpreter and to provide documentation in Portuguese.  On the one hand the Complainant appeared at hearing to have practically no English, yet he had managed to conduct all his business throughout his employment in English.  During the investigation he was asked if he wished to proceed in English and he confirmed that he did.  Ms. Diaz was available to support him with translation if required and it appears from all the witness evidence that little, if any, translation was required.  The Respondent described him as needing assistance when difficult questions were put to him during the in-house process. 

At hearing, everything said by representatives, witnesses and the Adjudication Officer was translated.  Despite this, the Complainant did not answer many questions put to him, or alternatively provided an answer that was unrelated to the question.  I found his behaviour at hearing to border on obstructive and I found him not to be a credible witness.

I formed the view that the Respondent had an absolute right, in the circumstances of this case, to place him on paid suspension pending investigation.  The allegations against him were of a serious nature and if found to be correct put himself, other staff and other business visitors to the site at risk.  I am satisfied that in this regard the Respondent followed the right course of action in relation to the safety of all concerned.

I am also satisfied that the Respondent followed a robust procedure in investigating the allegations against the Complainant.  The allegations were clearly set out for the Complainant, and the potential consequences outlined.  The Complainant had ample opportunity, over the course of 4 investigation meetings to clarify his position and to provide any evidence he wished.  He was afforded the right to representation, translation support and to identify witnesses.

I consider the investigation conducted by Ms. Byrne to have been thorough, and while it is possible to point out some minor imperfections, there was nothing done which could be described as fatal to a fair investigation process. 

In relation to the disciplinary hearing, the Complainant was again advised of the allegations and the potential consequences that might arise.  He was again afforded the right to representation, translation support and the right to bring witnesses.  As the investigator Ms. Byrne was present for him and/or the disciplinary decision maker to question, as was Mr. Graham.  Ultimately Ms. Hough issued a letter clearly outlining her decision to dismiss him and setting out the basis for her decision.  In that correspondence she also advised the Complainant of his right to appeal her decision.

In all of the above circumstances I find that the Respondent did apply a fair procedure when addressing the allegations that gave rise to the Complainant’s dismissal and in the procedure to dismiss.

Proportionality/Reasonableness of the Decision to Dismiss

I noted the respective positions of the parties in relation to decision to dismiss.  Having considered the detailed allegations against the Complainant I noted that most of the allegations related to work not completed and signed off as having been done.  I noted that, with the exception of 1 issue, the Respondent upheld all allegations against the Complainant. 

In reviewing the supporting documentation provided I noted the outstanding PPM and other work and I paid particular attention to the evidence given by Mr. Graham at hearing. In particular I accept Mr. Graham’s testimony that the Respondent operates in a highly regulated environment with regular audits and inspections to ensure the safety of equipment.  This safety is a requirement for the employees and external parties using equipment on site but also for the safety of food processing, and consequently the safety of the public.

I accept Mr. Graham’s evidence that it was essential to have trust in the engineers, that you could not micromanage a large group like that and that you should be able to rely on those employees to complete their tasks and to record that work accurately.  I noted his statement that, in essence, if this was not done then the whole system of recording maintenance became meaningless.

I also accepted Mr. Graham’s evidence that when PPM work is not done it is most serious and that a fall resulting from something like that, could result in serious injury to other workers.

I have considered Ms. Hough’s evidence at hearing and her correspondence of 24 October 2023 where she outlined the rationale for her decision making.  I noted that she concluded that the Complainant frequently put himself, the business and his colleagues at risk.  Based on her evidence at hearing it is clear that the Respondent had formed the view that the Complainant had broken trust and given the potential serious risks that could arise from his failure to attend to his duties the Respondent made the decision to dismiss.  I have formed the view that in these circumstances this decision comes well within the band of sanctions which could be imposed by a reasonable employer.

Taking all of the above into account I find that the Respondent has demonstrated that the dismissal of the Complainant was a fair dismissal.

CA-00062459-001       

This complaint was withdrawn by the Complainant.

CA-00062459-002       

This complaint was withdrawn by the Complainant

CA-00062459-003       

I have found that the Respondent has demonstrated that the dismissal of the Complainant was a fair dismissal.  In all of the circumstances it is my decision that this complaint is not well founded.

CA-00063046-001

This complaint was withdrawn by the Complainant.

Unfair dismissal

Complainant

Respondent

Parties

Henrique  Telli

Kepak Clonee Unlimited Company (No. 73744)

Complainant

Respondent

Anonymised Parties

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Representatives

Mr. H O’Donnell, BL instructed by Mr. D Ryan, Ken Kennedy Law

Mr. B Hallisey, BL instructed by Gerald O'Donnell Caulstown Solicitors

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-00062459-001

28/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00062459-002

28/03/2024

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

CA-00062459-003

28/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00063046-001

24/04/2024

The Complainant was employed as a mechanical engineer with the Respondent from the 13tOctober 2021 until the 24 October 2023 when his employment was terminated.  The Complainant contended that he was unfairly dismissed. 

The Respondent denied the allegations and instead submitted that the Complainant’s actions had broken the relationship of trust with the employer and accordingly, following a robust investigation and disciplinary procedure, the decision to dismiss was entirely reasonable in the serious circumstances of the case. 

In his complaint form, the Complainant submitted that he was dismissed by his employer following a period of suspension without proper fair process and procedures being followed and/or considered, no follow up investigations during the disciplinary process in relation to health and safety complaints made by him in respect of unlawful instructions provided by his supervisor, no further training and/or learning was provided, despite requests being made and an oppressive and unfair disciplinary process was carried out by his employer without following their own policy and procedures correctly, resulting in an unfair dismissal. 

The Complainant submitted that he was employed by the Respondent as a mechanical engineer on or about the 13 October 2021.  He submitted that on or about the 4 August 2023 he received a letter of suspension from Mr. Liam Grogan, Operations Manager.  The letter stated that the suspension was “pending an investigation into your conduct and performance” and that “it has been alleged that on the following dates below, that you signedand confirmed completion of work orders, where the work orders appear not to have been completed”.  The letter further alleged as follows:

“It is also alleged that on the 28 March 2023 that you failed in your duty to safely carry out works on a steam valve that resulted in an explosion which is currently under health and safety investigation. It is alleged that you failed to follow the holiday process and secured flight tickets before having your holidays authorised by your line manager”. 

The Complainant was invited to a disciplinary meeting by way of a letter dated 10 August 2023.  On the 11 August 2023, Ms. Annemarie Byrne, conducted an interview with the Mr. Fernado Da Silva, Maintenance Office Administrator.  The Complainant only received information and the notes of this meeting with the disciplinary pack on the 6 October 2023.  On the 14 October 2023 the Complainant attended an investigation with Ms. Annemarie Byrne and Ms. Iraelma Diaz.  The interview records that Ms. Diaz was present as a note taker/translator.  The meeting was to be concluded in line with Kepak’s formal disciplinary policy and procedure. 

At the meeting Ms. Byrne repeatedly referred to CCTV during the course of the 14 August 2023 interview; however, the CCTV was never shown to the Complainant and further it appears that Ms. Byrne herself did not view the CCTV and her references to it are based on an unknown employees purported viewing of the CCTV, which it is submitted was hearsay evidence.  The Complainant submitted that it was not clear who prepared the transcript, how it was prepared and for what purpose.  In that context the Complainant submitted that the transcript was hearsay evidence and further noted that he was never provided with the CCTV and that no witnesses at the disciplinary hearing were ever called in respect of the CCTV or the CCTV transcript.  The Complainant submitted that it was entirely unclear who watched the CCTV. 

The Complainant submitted that on page 12 of the interview, Ms. Byrne put the following to the Complainant, “Danny says that you were spoken to before about spending too much time in the canteen, being on your phone when you should be working but yet you are saying that you are overloaded?”  The Complainant noted that this was an allegation that was never previously put to the Complainant and to which he had no notice.  He submitted that it was not clear where this statement came from.  The first recorded interview with Ms. Byrne and Mr. Graham occurred on the 28 August 2023, however the Complainant submitted that it was clear from the interview notes of the 14 August, that Ms. Byrne had previously talked to Mr. Byrne and was purporting to introduce hearsay evidence of what Mr. Byrne had said.  The Complainant noted that this was a clear breach of fair procedures. 

The Complainant further noted that on page 12 of the interview, Ms. Byrne referred to having emailed Mr. Anthony Galvin in Portlaoise as part of her investigation.  The Complainant noted that it was not clear why this action was taken, or to which area of the investigation this related.  The Complainant noted that the investigation was entirely without focus and was in essence a “fishing expedition” and the reference to Mr. Galvin and a further email showed this.  The Complainant noted that there was no record of any interview having been conducted with Mr. Galvin and Mr. Galvin was never called as a witness.

The Complainant submitted that Ms. Byrne repeatedly raised performance issues as could be seen on page 13 of the interview, however the Complainant was never put on a performance improvement plan.  The Complainant noted that reference to performance here showed the lack of focus of the investigation and the almost unlimited nature of the investigation.  The Complainant noted that the Respondent was not clear whether the investigation related to performance issues or misconduct issues, and this was never set out in any documentation.  The Complainant drew attention to the fact that he consistently maintained throughout the 14 August 2023 interview, that he did his work and that there was a failure by his managers to prioritise his work adequately or at all.  The Complainant noted that he repeatedly stated that he was overworked. 

The Complainant submitted that on the 17 August 2023 Ms. Annemarie Byrne conducted an interview with Mr. Robin Chacko, and he noted that he only received information and the notes of this meeting with the disciplinary pack on the 6 October 2023.  He further noted that Ms. Byrne asked, “in your opinion is work allocated equally amongst the maintenance team”, to which Mr. Chacko responded, “hard to say, some jobs are small and others are big, so it is hard to quantify, some jobs can take 2-3 days to complete”. 

The Complainant submitted that on the 18 August 2023, Ms. Annemarie Byrne conducted an interview with Mr. Joao De Almida, and that the meeting was recorded as taking place at 12 noon.  The Complainant noted that he only received the information and the notes of this meeting with the disciplinary pack on the 6 October 2023. 

The Complainant further submitted that on the 18 August 2023 Ms. Annemarie Byrne conducted an interview with Mr. Colm Buggy, the Assistant Maintenance Manager, and that the meeting was recorded as taking place at 12 noon, the same time and date as the meeting was reported to have taken place with Mr. Joao De Almida.  The Complainant noted that he again only received the information and the notes of this meeting with the disciplinary pack on the 6 October 2023.  The Complainant submitted that Mr. Buggy made allegations against the Complainant in respect of clocking in for extra hours, stating, “he said he came in at 10, I think at that particular time he was clocking in ahead of his shift to get paid extra hours.  I mentioned it to Danny when he came back”.  The Complainant submitted that there was no basis to this allegation and that it further showed the wide ranging and open-ended nature of the investigation into the Complainant.  The Complainant further noted that Mr. Buggy confirmed that, while not recalling swearing at the Complainant, it was a possibility, and he further stated that “I might have sworn when speaking to him, but not at him”. 

The Complainant submitted that a further investigation interview between the Complainant and Ms. Byrne took place on Friday the 18 August 2023 at 10am, that Ms. Iraelma Diaz was present as a note taker/translator.  The Complainant submitted that in that meeting, Ms. Byrne noted “in our last meeting you said you were overloaded with work orders, so I got Fernando to send them to me”.  The Complainant submitted that it was not clear when this communication with Mr. Fernando Da Silva, the Maintenance Office Administrator, took place, as Ms. Byrne had already had a recorded meeting with Mr. Da Silva on the 11 August 2023 and there was no record of any subsequent meeting and/or communication. 

The Complainant also noted that while the meeting record clearly stated that Ms. Iraelma Diaz was present as a note taker/translator, instead she became an active investigator and interrogator at this meeting, repeatedly asking questions of the Complainant as can be seen on page 16 and 17 of the interview record.  The Complainant submitted that Ms. Diaz was also present at the later disciplinary hearing and that it was entirely unclear in what capacity she attended the disciplinary hearing. 

The Complainant submitted that a further investigation interview between the Complainant and Ms. Byrne took place on the 21 August 2023 at 10:30am and that it was stated that Ms. Iraelma Diaz was present as a note taker/translator.  The Complainant noted that in that investigation interview, Ms. Byrne repeatedly referred to CCTV, however the CCTV was never shown to the Complainant; and it further appeared that Ms. Byrne herself did not view the CCTV and her references to it were based on an unknown employees purported viewing of the CCTV, which the Complainant submitted was clearly hearsay evidence.  The Complainant further submitted that at this meeting the Complainant raised the issue of a lack of training stating, “I don’t get training, I don’t have training in confined spaces and yet I am asked to work in confined spaces in the operation boiler”.  The Complainant noted that Ms. Byrne replied, “you have told me that you have 20 years’ experience, what training have you not done?”. 

The Complainant submitted that a further investigation interview between the Complainant and Ms. Byrne took place on the 25 August 2023 and that again Ms. Iraelma Diaz was present as a note taker/translator.  The Complainant submitted that at the interview he had indicated he wished to send in more photographs in support of his case and that Ms. Byrne prevented him from doing so and he referred to page 23 of the interview record by way of evidence.  The Complainant also referenced page 23 of that interview record in relation to the need for a service tracker stating that “all maintenance carried out on a machine should be archived/tracked, when work was done, for example, oil changes, so that we know when it is done and when it needs to be done again”.  The Complainant noted that this was a suggestion for a more comprehensive system than the work orders in place with the Respondent and he noted that Ms. Byrne simply replied “okay”. 

The Complainant submitted that on the 28 August 2023 Ms. Annemarie Byrne conducted an interview with Mr. Danny Graham, the Maintenance Manager, and that the Complainant only received the information and the notes of this meeting with the disciplinary pack on the 6 October 2023.  The Complainant noted that in response to a leading question from Ms. Byrne, “when did you start to realise that work was not being done?”, Mr. Graham responded, “there were a few red flags with some of the maintenance that he had been carrying out, that I was started to take note of …., but I couldn’t pinpoint if it was Henrique or not.  Back in November 2022 it was reported that he was clocking in for his shifts early and going directly to the canteen for a break before starting work, I spoke to him at the time about the canteen and then made a point of paying attention to the work he was doing”.  The Complainant noted that Mr. Graham referred to red flags but could offer no reason that they were connected to the Complainant, admitting that “I couldn’t pinpoint if it was Henrique or not”.  The Complainant also noted that Mr. Graham referred to reports of clocking in early and noted that there was no reference to who reported this or how this was substantiated.  Indeed, the Complainant noted this was characteristic of the wide ranging and unlimited nature of the investigation into the Complainant by the Respondent. 

The Complainant submitted that Mr. Graham stated later in the interview “there are also two cracks on the back of the machine (1140), again PPM paperwork was completed by Henrique on the 19 July to say the “test was okay” and he did not flag the cracks.  The machine is used by the Department of Agriculture and forms part of a safety audit by the Department.  Again, serious implications to the business had something gone wrong as a result of this check not being completed”.

The Complainant submitted that in respect of the work orders, Mr. Graham confirmed in the interview as follows: “Once the paperwork is completed by the end of the week by the lads in maintenance and is accurate, I’m okay with that …. I don’t mind when the lads fill out the paperwork so long as it’s done”.  The Complainant noted that Mr. Graham also referred to a log of the times he had spoken to the Complainant and noted that it was not clear why a log was kept, nor does the log provide the level of information that Mr. Graham stated in the interview. 

The Complainant submitted that in respect of the accident investigation into the steam valve, Mr. Graham offered no reason for his claim that the steam valve wasn’t faulty, other than to say, “I am 40 years in the business ….”.  The statement provided in the disciplinary pack did not appear to be a complete statement and further had written notes.  The Complainant submitted that it appeared to be in draft format and did not appear to be the final statement. 

The Complainant submitted that he was clear and had consistently maintained that the valve was faulty and that it was this fault that caused the explosion.  Furthermore, the Complainant submitted that he did not have training in respect of boiler operations and/or confined spaces, despite having requested this on a number of occasions.  The Complainant noted that Mr. Graham also referenced issues about using the phone, which were never put to the Complainant and again showed the wide ranging and open-ended nature of the investigation amounting to a “fishing expedition”. 

The Complainant noted that Mr. Graham admitted that “I do not treat him differently from the others ….. I have to keep checking his work, I question what he does, but this is because his performance has dropped and not for any other reason”.  The Complainant submitted that in spite of this clear admission of different treatment and the purported reason for the different treatment, the Complainant was never offered any performance improvement plan. 

The Complainant submitted that on the 6 October 2023 he received a letter from Ms. Annemarie Byrne, HR Manager, stating that the investigation was now complete into allegations in relation to the Complainant “submitting work orders that were signed as completed but appear not to have been done”.  He submitted that Ms. Byrne informed him that the matter was to be referred to a disciplinary hearing and he further submitted that the letter stated that the allegations against the Complainant were as follows:

        I.            “On dates between 17 and 28 July 2023, it was alleged that the Complainant submitted a total of 23 PPM preventative maintenance work orders signed as completed, while the work orders appear not to have been done

      II.            Alleged failure to carry out PPM preventative maintenance work between 17 and 28 July 2023

    III.            On 28 March 2023, it is alleged that the Complainant failed in his duty to safely carry out works on a steam valve that resulted in an explosion

    IV.            On dates between 22 May and 31 July, it is alleged that the Complainant failed to carry out the following instructions from his line manager, Danny Graham

a.      Failed to recycle the ammonia pump as requested

b.      Failed to repair the boiler storage press to standard

c.       Failed to clean thatch pond to standard required

d.      Failed to clear balance tank of silt as instructed causing an external agent to be contracted to remove blockage at a considerable cost to the business

e.      Failed to follow instruction to repair four pallet trucks and this work is still outstanding

f.        Failed to switch off the power pump in the effluent plant which is a fire risk.  It is also alleged that on this occasion the Complainant was reminded twice to ensure that the pump was switched off

g.       Completed a substandard task on four fabrication jobs assigned to you and were also unable to complete the weld required on the aforementioned

h.      For a second time that you failed to switch off the power pump in the effluent plant, risking damage to the pump and risk of fire

      V.            It is alleged that the Complainant failed to follow the holiday process and secured flight tickets before having the holidays authorised by his line manager, Danny Graham, the flight dates secured would include additional ……”

The Complainant submitted that he was clear that he carried out the work required in the work orders, that he had documented some of the work he did by photographs which he would then send via email to Mr. Graham.  The Complainant submitted a copy of those photographs and email as an appendix to his submission.

In respect of the issue with the boiler, the Complainant submitted that it was his position that the valve on the boiler was faulty and that this was the reason for the explosion.  Further it was his position that he did not have adequate training in respect of the boiler.  In respect of the ammonia pump, the Complainant submitted that it was his position that he was only asked to remove the water from the ammonia pump tray and that he did this.  He submitted that he was not asked to recycle the ammonia pump.

In respect of the boiler storage press, the Complainant submitted that he had fixed the door in a temporary manner and reported this to his manager and advised them that a new lock was needed.  He submitted that this was not followed up by the Respondent. 

In respect of the cleaning of the thatch pond, the Complainant submitted that he removed eight bags of rubbish from the pond and that he sent his manager an email and a photograph of this work. 

In respect of the balance tank of silt, the Complainant submitted that he required training in confined spaces, that this was not provided to him by the Respondent and that despite this, he had commenced cleaning the tank.

In respect of the four pallet trucks, the Complainant submitted that he fixed two of the pallet trucks.  In respect of the third pallet truck, he submitted that it couldn’t be repaired as there was a broken part and a piece that had to be ordered was required to fix it.  Finally, in relation to the fourth pallet truck, the Complainant submitted that it wasn’t provided to him for fixing.

In respect of the power pump the Complainant accepted that he forgot to turn it off, however he submitted that there was no risk of fire as the electrical parts were all time protected. 

In respect of the fabrication jobs, the Complainant submitted that he did complete four fabrication jobs to a high standard.

In respect of the power pump, the Complainant submitted that he did resolve the issue with the power pump and removed a stone from the inside of the pump and he confirmed that the electrician then turned the pump on for tests to be run.

In respect of the vacation, the Complainant submitted that he sent an email to his manager two months before taking the vacation and that there was no response, and he provided a copy of the email as an appendix to his submission.

In the letter from Ms. Byrne, she confirmed that the only information Ms. Hough would have in advance of the meeting was a copy of that letter, the attached statements, documents and CCTV transcript.  The Complainant submitted that he received a copy of the disciplinary pack on the 6 October and that the disciplinary hearing took place remotely on Microsoft Teams on Tuesday 17 October 2023.  He submitted that he did not receive a copy of the minutes of that meeting, that the hearing was conducted by Ms. Audrey Hough, HR Director, and that Ms. Iraelma Diaz and Ms. Annemarie Byrne were both present.  The Complainant submitted that it was not clear what role Ms. Diaz had in attendance at that meeting.  The Complainant further submitted that no witnesses were called at the disciplinary hearing of 17 October 2023 and that the Complainant was not presented with an opportunity to hear from any witness against him, or to cross examine any such witness.  The Complainant submitted that he struggled with his English during the investigation and disciplinary hearing and did not understand all the questions asked of him and he further submitted that the documents in the disciplinary pack were provided in English only.

The Complainant submitted that he received an email on 18 October 2023 from Ms. Hough, stating that all the disciplinary allegations, with the exception of number 4D were being upheld.  In that correspondence, Ms. Hough asked for submissions in relation to disciplinary sanctions.  The Complainant submitted that he responded in three separate emails, on 19 October 2023, to Ms. Hough and he confirmed that he received a disciplinary hearing outcome letter dated 24 October 2023, in which he was dismissed.  He noted that that letter concluded, inter alia: “I found it quite disturbing and alarming that throughout this disciplinary investigation, you disassociated yourself with such ease from your core work ethic.  You freely admitted to not completing tasks to the required standard, which were not in compliance with supervisor’s requests.  Your work was routinely substandard and yet you still had the confidence to call yourself organised and responsible.  I sincerely disagree.

“I found it very reasonable on Danny’s part to have given you the opportunity to fix some issues raised, and I was disappointed to see that more than once, how you declined the opportunity to exercise your skills and carry out your work to the highest standard.  Rather it appears instead that you took the easy option.  I would have imagined someone in your position to have pride in carrying out their work, but I am sad to say that you showed no evidence of this.

Additionally, and equally, is the lack of value you place on the time and efforts of your colleagues.  You failed to attend to the initial disciplinary hearing without giving any notice or explanation for your nonattendance, disregarding as you did, my time, Annemarie’s and Iraelma’s.  After having been contacted and arriving 35 minutes late for the hearing, you explained that you had not bothered to read the disciplinary pack that you had been furnished with before the hearing.

“In coming to my decision in relation to the appropriate disciplinary sanction to apply in your case, I have carefully considered all available information and your admissions.  I believe that you consistently chose the easier, quickest, or indeed the laziest option to complete your work, frequently putting yourself, the business and your colleagues at risk.  I am dismayed by how much the business suffered because of your actions, and not only once, but when given the opportunity to fix the work assignments, you did not. 

I feel I am left with no option but to dismiss you from your employment with Kepak Clonee.  I do not make this decision lightly, and I have taken into consideration all of the information gathered during this investigation and what emerged at the disciplinary hearing.  Your dismissal will be with statutory notice, which you will not be required to work.

You are entitled to appeal my decision.  If you wish to do so, please outline your reasons in writing within five working days and return to the HR Department”.

The Complainant drew attention to the Respondent disciplinary procedure and in particular noted that it set out “any witness the investigator wishes to call should then be called.  The employee or person accompanying the employee may question those witnesses.  The decision maker may then question the witnesses”. 

The Complainant submitted that despite these clear procedures, no witness was called by the investigator and the matter proceeded in the absence of any witnesses on behalf of the investigator. 

The Complainant submitted that the disciplinary policy was also clear in respect of disciplinary sanctions and the Complainant submitted that it was not clear what steps Ms. Hough had considered, short of dismissal.  The Complainant submitted that the sanction of dismissal was wholly disproportionate to the allegations which were not admitted by the Complainant.  The Complainant noted that his employment ended on 24 October 2023, and he confirmed that he was seeking compensation for the dismissal. 

The Law:

The Complainant submitted that section 6 (7) of the Unfair Dismissals Act 1977 emphasised the importance of reasonableness in determining if a dismissal was fair.  In this regard, he cited the case of Allied Irish Banks V Purcell (2012) 23 ELR 189 where the “band of reasonableness” as applied by Judge Linnane does not give an employer carte blanch in relation to the decision to dismiss. 

The Complainant also cited the case of Iceland Frozen Foods Limited V Jones (1982), IRLR 439, which set out the test for reasonableness as follows:

“It is capable of being misunderstood so as to require such a high degree of unreasonable is to be shown that nothing short of a perverse decision to dismiss can be held to be fair within the section”.

Based on the aforementioned cases, the Complainant submitted that the test of a reasonable employer is one who is presumed to act with regard to the principle of proportionality and in that context the Adjudication Officer is required to have regard to the proportionality of the Respondent’s actions.

The Complainant drew attention to section 6 of the Unfair Dismissals Act 1977, which provides:

(1)   “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.”

In relation to procedural unfairness the Complainant submitted that the decision to dismiss an employee will be considered to be unfair if it is arrived at by a process which does not afford fair procedure.  The Complainant relied upon the case of Hennessy V Reid and Wright Shop Limited, UD192/1977, where the Employment Appeals Tribunal, described the reasonableness aspect of unfair dismissals as follows:

(1)   The nature and extent of the investigation carried out by the employer prior to the decision to dismiss the Complainant and

(2)   The employer’s conclusion following such an enquiry that the Complainant should be dismissed

The Complainant submitted that there were a number of significant flaws in the Respondent’s disciplinary process arising from the factual background as previously set out and outlined as follows:

        I.            The Complainant did not have an opportunity to cross examine key witness against him.  Indeed no witnesses were called at all at the disciplinary hearing, contrary to fair procedures and the Respondent’s own policy.  The Complainant submitted that it appeared the Respondent chose to dispose of this on the basis of a paper only review of witness statements, while the Complainant himself was required to give viva voce evidence.  The Complainant had no opportunity to test the evidence against him.

      II.            The Complainant’s explanation for the allegations were not fully investigated.

    III.            The claims made against the Complainant were vague and often unsubstantiated.

    IV.            The investigation into the Complainant was often open ended, witness statements were often taken in response to leading questions, unsubstantiated claims were often made, and the investigation amounted to a fishing expedition.  The Complainant submitted that it wasn’t clear whether the investigation related to performance or misconduct issues.

      V.            The Complainant was refused permission to submit further photographic evidence during the investigation.

    VI.            CCTV footage was relied upon, although it was not provided to the Complainant and further it appeared that the decision maker herself did not view the CCTV and her references to it were based on an unknown employee’s reported viewing of the CCTV.

  VII.            Ms. Diaz’s presence at the investigation purportedly as a note taker/translator; however, as can be seen in the minutes of the meetings with the Complainant, she became an active investigator and interrogator.  She was also present during the disciplinary meeting and it was not clear, in what role, she attended that meeting. 

The Complainant noted that the test to be applied whether the sanction was reasonable, was set out by the Employment Appeals Tribunal in the case of Noritake (Ireland) Limited V Kenna (UD88/1983), where the tribunal considered the matter in the light of three questions:

1.      Did the company believe that the employee misconducted himself as alleged?

2.      If so, did the company have reasonable grounds to sustain that belief?

3.      If so, was the penalty of dismissal proportionate to the alleged misconduct?

The Complainant opened a number of cases in relation to the question of the range of reasonable responses available to the employer and submitted that in the instant case, the sanction was disproportionate to the actions complained of, of which actions were not admitted by the Complainant.

Witness Evidence – Mr. Telli:

Mr. Telli was assisted throughout the giving of his evidence by an interpreter.  Mr. Telli confirmed that he was from Brazil and that his level of English was limited.  It was put to him by his representative that he had been described as having excellent English and being very competent but Mr. Telli confirmed that he could not be described as excellent.  He confirmed that he was a technical engineer and that he was responsible for all parts of the machine.  He confirmed that he worked in Clonee for most of the time he was with the Respondent but that he had worked for a month in Portlaoise in or around June or July.  He confirmed that the manager assigns jobs at the start of the shift and that after production has shut down that he is then free to service the machinery.

In relation to the incident with the valve in March 2023, he confirmed that he welded a pipe and that afterwards he spoke to the manager.  He confirmed that the valve had later exploded, and that the manager had been present when fixing the valve and that five minutes after the manager had fixed the valve it had exploded.  He further confirmed that he did not have training.  He stated that there was an inspection the next day and that after talking to them they didn’t get a security cert.  He stated that there was a health and safety investigation conducted within the company and that it was not certified.

In relation to the first allegation that he did not complete the service hours; he confirmed that he did the task, but he did not recall the exact time and date.  He confirmed that he did complete all jobs listed under the allegation but that as per allegation 1, he could not recall the exact date and time when he completed the work. 

In relation to work orders he stated that normally planned preventative maintenance (PPM) was done after cleaning hours and that he completed all the work orders and that he would normally do them on a Thursday and Friday.  He also confirmed that he had to do the work during other rosters as he was often assigned other jobs.  He did confirm the tasks were done daily, weekly and monthly but he confirmed that service hours were generated by Fernando and by the end of the week it was accepted that the work would be concluded and that when you completed the jobs by the end of the week you had to sign off on those jobs. 

The Complainant confirmed that he had done all the jobs and that they had been completed and that he had confirmed that position at the investigation.  He stated that at times he may have made mistakes in relation to the times when the work was completed and that it could have been any given day within the week but that he had completed all the jobs.

In relation to the holiday issue, the Complainant confirmed that he had a difficult time in that there had been a bereavement in the family and that on 24 July he had asked for holidays via email from 1 September to 5 October and he confirmed that he did not receive a response from Mr. Graham.

In relation to Ms. Diaz, he confirmed that she was present at all meetings and that she did translate for him whenever he asked for assistance.  When asked if Ms. Diaz had asked any questions he stated that no she had not. 

The Complainant Representative asked him if he had raised any issue in relation to training and he said that he had.  He stated that depending on the job that was being done, it sometimes required additional training, and he confirmed that he did not have training on the platform to work at height nor in confined spaces. 

The Complainant Representative asked him why he had not appealed the decision to dismiss him, and he responded that he was exhausted by the procedure and that there were 8-10 people talking against him in the company.  He confirmed that he was now working for another employer and that he had started work on 9 January 2024.  He confirmed that he was receiving €22 per hour plus overtime in the new role. 

Under cross examination the Complainant confirmed that all his dealings with Mr. Graham had been in English, and he confirmed that he could understand the questions put to him by the Respondent Representative.  He stated that when discussing matters with Mr. Graham, sometimes he would need help with technical words.

In relation to the meeting with Ms. Byrne, he confirmed that this was all in English but that he did not understand what was being said.  He confirmed also that the notes of the meetings were all in English and that he was not happy with the notes as they contained accusations.  The Respondent Representative put it to the Complainant that while he had refused to sign the notes of his meetings, he had said he was happy with them, to which he responded that he was not happy with the proceedings and that he had emailed accordingly.  In relation to those notes he confirmed that he was not happy with those notes because they were against him.

The Complainant was asked if he could read in English, and he confirmed that he could, but he again confirmed that he was not happy with the accusations against him in the notes.  He stated that the company would not allow him to speak the truth.  In relation to his level of English, he confirmed that he would describe himself as having an intermediate level of English. 

The Respondent Representative wished to enter into the record a copy of the Complainant’s CV and the Complainant Representative objected on the basis that it was not admissible.  The Respondent Representative confirmed this would not be entered into evidence. 

In relation to the suspension letter the Complainant confirmed that he had received it but that all it contained were false allegations.  It was put to him that he would have understood the potential disciplinary implications contained in that letter and he confirmed that he did but that he did not know the Irish Law.  It was again put to him that he had understood the content of that letter, and he stated that there were many things in that letter that he did not understand.  The Respondent Representative put it to the Complainant that he had never raised his concerns at any stage about not understanding the correspondence to which the Complainant responded that he hadn’t raised it but that he did not understand some of what was contained in the letter.  He stated that something was happening in the company and that he didn’t know what, but that the manager was trying to damage him. He stated that he had wanted to talk to the manager about what was going on but that he didn’t ever get that opportunity. 

In relation to the investigation meeting, he confirmed that he did receive a letter, setting out allegations and he confirmed that he was asked if it was okay to proceed and to conduct the investigation meeting in English.  The Complainant confirmed that he had accepted that but that there many things that he did not understand.  The Respondent Representative put it to the Complainant that Ms. Diaz was available to assist him, and the Complainant responded that yes, but many questions had a yes or a no answer and that he didn’t understand them all and again the Respondent Representative pointed out that he had never raised any concern. 

In relation to representation the Complainant confirmed that he had no representative and that he had never called witnesses, because he didn’t understand how it worked.  The Respondent Representative put it to the Complainant that from the outset he had been advised about witnesses and that he had said he didn’t to bring any.  The Complainant said yes, that was the case, but he didn’t understand the Irish law and that a person would get into trouble in the company. 

It was put to the Complainant that he was asked about completing the paperwork and he was asked what was his first explanation for not having done this.  The Complainant stated that he did the jobs, only he didn’t remember the date.  The Respondent Representative put it to the Complainant that he had in fact told Ms. Byrne that he had done the work at the time and date on the work order and the Complainant confirmed that this was the case.  The Respondent Representative put it to the Complainant that this was misleading and that he had been telling a lie.  He stated that it was clear that he hadn’t done it at the time and he asked the Complainant why did you tell Ms. Byrne that you did.  The Complainant did not respond to the questions which were repeated several times by the Respondent Representative.  The Complainant stated that he did not understand the question.  The Respondent Representative put it to him that he did understand the question, that he had spoken to the translator and had had the question translated for him.  At this juncture the Adjudication Officer rephrased the question for the Complainant and again the Complainant did not provide a response.  The Adjudication Officer asked again to respond to the question and the Complainant did not provide an answer but answered a completely different question.  The Adjudication Officer put it to the Complainant that his behaviour in the hearing was not credible, that he had the assistance of the interpreter in understanding questions being put forward and that he was providing answers to questions other than those being asked, however the Complainant provided no further answers to those questions. 

The Respondent Representative put it to the Complainant that Ms. Byrne had asked him about the time and date on the docket and then she asked him if he had carried out the inspection at that time and date.  The Complainant did not respond.  The Respondent Representative then asked “so why did you tell a lie to Ms. Byrne” to which the Complainant responded “because the work was done daily and weekly etc”.  The Respondent Representative noted that the Complainant was deliberately avoiding the question.

The Respondent Representative put it to the Complainant that he had been asked about the tools that were brought out but none brought back and the Complainant said that he will do this daily, weekly and monthly.  The Respondent Representative asked the Complainant if he was 100% certain that he has the paperwork with him at the time of doing the job.  The Complainant responded “I didn’t understand” and then he changed that to “yes, I understand”.  The Respondent Representative queried his answer and asked him when the work was done would he return the docket and his answer was, yes it was always in the company. 

The Respondent Representative asked him, so why tell Ms. Byrne that you did it at the time, to which the Complainant responded, I didn’t understand.  The Respondent Representative asked, so which part of that do you now say you don’t understand, to which the Complainant responded, I don’t understand your question. 

The Respondent Representative put it to the Complainant that Ms. Byrne had asked him if he had brought the docket to the machine to which the Complainant responded, I will not bring paper with me, this will stay in the company.  The Respondent Representative stated then why tell her that you did and the Complainant responded, because I did not understand the question.  The Respondent Representative asked, are you saying you completed the work at the time, and the Complainant stated, I don’t remember the exact time and date.  The Respondent Representative put it to the Complainant that he was avoiding the question and again this happened on multiple occasions. 

The Respondent Representative put it to the Complainant that his story to Ms. Byrne had continued to change on a number of occasions and the Complainant responded that he was being truthful, that he did complete the tasks.  The Respondent Representative noted that when the Complainant was alerted to the CCTV, he changed his story and his response was that he did not change the story, he continued to say he did complete the work but didn’t know the exact time and date.  The Respondent Representative put it to him that he did change his story, that he changed to saying he went back to the office to write it up, to which the Complainant responded, I don’t remember.  The Respondent Representative noted that the position changed again and referred to page 150 of the submission where the Complainant had stated that the tasks were completed but he didn’t remember the date and time, and he stated that he did not tell Ms. Byrne from the beginning because he thought he might lose his job.  He stated that every day he was doing his job he tried to talk to the manager and that he would like him to know, because something wrong was going on and things were in a bad place with Mr. Graham.  He confirmed that the dockets were not accurate.  He stated that he signed all the dockets and that he had done the job.  The Respondent said he would ask one last time if the Complainant had completed the PPM checks at the times and dates on the dockets and he responded that he did not remember.  When asked why he had said that, he gave no response.  He said that each day the first person he would speak to was Mr. Graham and that he would establish what jobs needed to be done.

The Respondent Representative put it to him that he accepted that he might not have done the jobs and he responded, “I’m telling you the job, I did it”.  The Respondent Representative then asked why he would say that, that it was possible that it was not done at all, to which he responded, “I work from midday, Mr. Graham overloaded me with work that I had to complete all the tasks he assigned to me.”  The Respondent Representative stated but why say it to which he responded, the jobs were done. 

In relation to the steam valve, the Respondent noted that the Complainant stated it wasn’t his fault.  The Complainant responded “I was not guilty, I followed the correct procedure, it was open when it had to be closed.  After the accident the company to examine and they did not get any result about what happened to the valve”. 

The Complainant confirmed that he sent pictures about all of the jobs done and that there was something going on about him in the company. 

The Complainant confirmed that he had read the handbook which had been included in the disciplinary procedures.  He confirmed that he was aware of the CCTV footage but when he received the book he didn’t read it in full and that he was aware that the CCTV didn’t show that he was where he had stated he should be.  The Complainant also confirmed that during the process he had accepted the Health and Safety Managers report on the CCTV footage and that he had done so because he hadn’t done anything wrong.  He confirmed that he had responded to all allegations but that he would only answer what he was asked about.  The Complainant stated that he did not get to call witnesses because all he could call were company people and he could cause them harm by calling them to participate in the process.  He further confirmed that he had received the disciplinary letter and the disciplinary pack in October and before his meeting with Ms. Hough that the letter had set out five allegations, and that the letter set out that the matters may be subject to a disciplinary sanction.  He also confirmed that that letter advised him of his right to representation.  He confirmed that Ms. Diaz was present at the meeting, that he had wanted to talk to the manager but that the manager was not present (Mr. Graham). 

The Respondent Representative asked the Complainant about what he had said to Mr. Graham at the investigation meeting.  The Complainant responded asking why he had been sent out to cut grass etc.  The Adjudication Officer noted that he gave the response without the need for translation.  The Respondent Representative noted that the Complainant had good English and noted that the Complainant was now admitting that the work orders were not complete.  The Complainant responded “I’m going to truthful, I did all the jobs, people in the company are trying to damage me”.

The Respondent Representative put it to the Complainant that he had already accepted that not all the jobs had been complete to which the Complainant responded that all jobs were completed and all were executed.  The Respondent Representative put it to the Complainant that it was difficult to accept that he was credible, that he was constantly changing his story, to which the Complainant responded “I am being completely transparent”.  The Respondent Representative put it to the Complainant that at hearing he was deliberately evading the questions. 

The Respondent Representative asked the Complainant in relation to the holidays and his email to Mr. Graham in that regard.  The Complainant did not respond.  The Respondent Representative asked the Complainant what was the correct procedure for applying for leave and the Complainant responded that he had had a family matter and then he asked the Respondent Representative to repeat the question and when that was done, he did not reply.  The Respondent Representative stated that he would need a reply to which the Complainant responded “he would never talk to me”. 

The Respondent Representative put it to the Complainant that it was required for him to book the leave in advance on the portal and noted that he had sent an email because of the personal problem.  He asked the Complainant if he was aware of the procedure, and asked for a yes or no answer.  The Complainant responded no.  The Respondent Representative asked the Complainant if he had completed the form and he stated no, but that he had sent an email because it was important because there was a family problem.

The Respondent Representative put it to the Complainant that he had stated that he didn’t understand the allegations and the procedures but that he had accepted the allegations 1,2, 3 and 5.  The Respondent Representative put it again to the Complainant that this was extraordinary that if he didn’t understand those allegations that he did not write, dispute or appeal the decision.  The Complainant stated that yes he was accused of several things, that he was accused from March up until August and that he wanted to talk to his manager and he was never given the chance.  The Respondent Representative put it again to the Complainant that he was not answering the question and that he was redirecting.  The Complainant stated that at the time he was exhausted and under a lot of pressure and was never given the chance to defend himself.  He stated that “all I know is that I did the jobs, Danny was looking for things that were never raised”. 

In relation to training, the Respondent Representative put it to the Complainant that he was saying he required training on equipment, platform working and working at height.  The Respondent Representative asked the Complainant if he was saying that he was not competent.  The Complainant responded that he was competent but needed training.  The Complainant confirmed that he was currently working for another company, that he had initially been employed by a different company for 40 hours a week plus overtime, but that he was now working with a company receiving €22 per hour.  He confirmed that while working for Kepak, he had initially been working at a rate of €16 per hour and that this had been increased to €20 per hour.  He confirmed that his pay rate at the time of leaving the employment of the Respondent was €20 per hour.

The Complainant confirmed that he had started in alternative employment on 9 January 2024, that he had been out of work for eleven weeks and that he had been seeking work for nine weeks.  He confirmed that he had received social welfare benefits during that period, that he had received one payment of €236.  He confirmed that he was now six months with the company and that everything was working well. 

The Adjudication Officer put a number of questions to the Complainant in relation to the investigation procedure and the Complainant failed to respond at all or responded to questions other than those asked.  Ultimately the Adjudication Officer asked the Complainant if he had understood the allegations that were put to him by the Respondent as part of the investigation process and he confirmed that he had understood.

Post hearing Submission on Redress

On 10 December 2024 the Complainant made a post hearing supplemental submission in relation to his financial loss.

He submitted the following:

·       That the Complainant was employed by the Respondent from in or around 13 October 2021 and that he worked a 40-hour week

·       That his hourly rate was initially €169 gross per hour and that this was increased to €20 per hour before being unilaterally lowered before his dismissal to €18 per hour.

·       That the parties had agreed that the correct hourly rate was not reflected in all payslips provided and that the rate of €20 per hour (€800 per week) is the correct salary

·       That in addition the Complainant received an average of €267.21 in respect of overtime from 3 February 2022 to 16 November 2022; resulting in a gross total weekly salary of€1067.21.

·       That the Complainant commenced employment with a new employer on 9 January 2024 and so was out of work for 11 weeks, equating to a loss of earnings of €11739.03

·       That in this employment he earns €22.19 gross per hour, and taking into account his average overtime he earned €916.00 gross per week.

·       That this equated to a weekly differential of €151.21.

·       That having worked for that employer for a 6-month period, the above weekly differential resulted in a loss over that period of €3931.46

·       That thereafter the Complainant began working with a second new employer at a rate of €22 gross per hour, resulting in a weekly salary of €858.

·       That in that role the Complainant does not have any overtime.

·       That the weekly loss arising from this employment is €209.21, with an accumulated loss up to the date of the submission of €4393.41

·       That this loss is on-going

In summary the Complainant calculated his accumulated loss up to the date of submission to be €20064.18 and noted an on-going loss into the future of €209.21.  Referencing Brady v Minister for Social Protection [2016] IEHC 553 the Complainant noted tat the Court stressed that the quantum of loss was not limited to loss suffered within the two years following dismissal but was instead calculated on the basis of total losses into the future, but capped at a sum equal to two-years remuneration.  The Complainant submitted that, as such, there is no limit to the WRC’s ability to compensate for the ongoing weekly financial loss of €209.21, and that the only limit is “the quantitative limit imposed by the Act of 104 weeks’ remuneration.”

The Respondent submitted that the Complainant commenced working with the Respondent in October 2021 at the Clonee premises.  The Respondent noted that the Complainant changed location between June 2023 and July 2023 for a period of four weeks and three days to assist with an issue of support on another site.

The Respondent submitted that

·       the Complainant came to attention as a result of a very serious issue with regard to his working practices

·       the Complainant was an engineer with significant experience and was trusted him to carry out works that were required

·       that he was a skilled employee and there was a level of trust afforded to him that he would carry out his duties and would sign off the duties as being completed

·       that as a maintenance engineer the Complainant was required to service, maintain and repair the many machines operated by the Respondent. 

The Respondent further submitted that the assignment of works procedures, which the Complainant was well aware of, was that he would have a work order assigned to him and he was then required to carry out and complete the work order by a particular time and date.  Work orders included maintenance checks on machines.  As an experienced engineer, the Complainant was allowed a significant degree of discretion in relation to how and when he completed his assigned works and a great deal of trust was placed in him.

The Respondent noted that the Complainant “conveniently sidestepped and avoided mention of the fact that he admitted to a number of serious allegations during the course of the investigation and at the disciplinary hearing”.  The Respondent noted that in particular the investigation interview notes and disciplinary hearing outcome letter confirmed that he had admitted to four allegations, in particular as follows:

·       On dates between the 17th and 28th July 2023, he submitted a total of 23 PPM preventative maintenance work orders signed as completed where the work orders appear not to have been done.

·       A failure to carry out PPM preventative maintenance work between the 17th and 28th July 2023.

·       On the 28th March 2023, a failure in his duty to safely carry out works on a steam valve that resulted in an explosion.

·       A failure to follow the holiday process and purchasing flight tickets before having his holidays authorised by his line manager, Mr. Danny Graham.

The Respondent submitted that the admissions made by the Complainant are a fact and something he cannot now resile from.  The Respondent noted that the first three matters are very serious and significant issues for the Respondent as it relies on its skilled engineers to ensure that all machines are safe for use.  The Respondent noted that the Complainant admitted that he falsified work orders so that they showed that the maintenance checks were completed on particular times or dates when in fact they were not checked at those times and dates, or at all. 

The Respondent drew attention to its disciplinary handbook where it confirmed that this is a matter which can lead to summary dismissal, given its seriousness. 

The Respondent noted that the Complainant asserted that he was invited to a disciplinary meeting, however, the Respondent noted that the Complainant was in fact invited to a disciplinary investigation meeting, not a disciplinary meeting and that this was clear in the letter of invite.  The Respondent noted that this was entirely in line with the procedures set out in the disciplinary handbook. 

The Respondent drew attention to the importance of interviews conducted under the investigation process and noted that they show that the process was fair and transparent from the outset with all matters put to the Complainant and with him being allowed an opportunity to respond to all allegations. 

The Respondent noted what it described as attempts by the Complainant to deflect from the numerous admissions made on the basis that the Complainant had difficulty with his language, i.e. that he was not sufficiently proficient in English.  The Respondent submitted that this again ignored the fact that the Complainant was specifically asked at the very first investigation meeting, if he wanted to conduct the meeting in English and if he wanted correspondence to be in English.  The Respondent noted that he confirmed he did.  The Respondent further noted that there were repeated references in his submissions alleging an uncertainty as to why the translator was present.  The Respondent noted that again, the Complainant was specifically advised that she was there to take notes and would help if needed with any translation.  The Respondent further drew attention to the position of the Complainant’s colleagues, who had indicated that the Complainant had always dealt with colleagues in English, was proficient in English and was now alleging otherwise.  The Respondent submitted that this sudden deficiency in his English language skills was self-serving for the purposes of his claims against the company.  The Respondent submitted that the Complainant was in a difficult position as to succeed in this claims, and that he must somehow explain why he admitted to a number of very serious issues, which clearly warranted dismissal. 

The Respondent submitted that the Complainant was invited to a number of disciplinary investigation meetings and that it was clear from the notes taken, that they demonstrated the following:

a)      He was asked if he wished to continue through English and he agreed same.

b)      He was asked if he wanted representation and he confirmed he did not.

c)      He was advised if any witness submits a statement as part of the investigation, the Complainant will have an opportunity to question them, i.e. the right to cross examine.

d)      He was asked if he had any witnesses he wished to interview or call and he confirmed he did not.

e)      All matters were put squarely to the Complainant and he was asked for an explanation.  He made a number of admissions in relation to not completing tasks assigned to him.

f)       At the conclusion of the meeting, he was advised if he wished to furnish any further information he could do so, or if he wanted to send an email or a statement he could do so.  The Complainant never did either.

The Respondent submitted that the Complainant had made a very large number of complaints, effectively about almost every aspect of the investigation and disciplinary procedure.  The Respondent noted that the Complainant queried when Ms. Annemarie Byrne received information, how she received information.  He queried why certain people were interviewed, or the role of certain people within the process.  The Respondent noted that none of the very numerous complaints which were raised, had any merit, and it was simply “a scattergun approach taken to try and undermine the process”. 

In response to those allegations, the Respondent outlined the following:

·       The Complainant was not shown CCTV as there was nothing to see.  There was no footage of him in the abattoir.    It was noted that the investigation notes show that he was informed that Ms. Byrne would be looking at CCTV to try and determine his whereabouts, and in the same conversation she told the Complainant that she had viewed some CCTV prior to their meeting.

·       Ms. Byrne drafted the CCTV transcript based on what she viewed on the 17th, 19th and 20th and the rest based on the information provided to her by Ms. Da Silva.  The Respondent noted that the Complainant kept saying he couldn’t remember when the work was carried out (meaning that several hours would have to be viewed to determine if the checks were carried out).  It was not possible to store this amount of CCTV evidence that the Complainant was not seen in the abattoir.

·       The Respondent noted that the Complainant then finally agreed that he did not carry out the PPM checks.  The Respondent noted that this was why the transcript was drafted and that this was also explained to the Complainant and he agreed.  The Respondent noted that the first interview notes clearly reflected that the Complainant was evasive in his answers and seeking to deflect from the real issues which were under review.

·       The Respondent submitted that the Complainant’s assertion regarding the CCTV should now be considered in the context of the overall investigation and his admissions that he in fact was not carrying out the works to the machines as stated on the completed work order documentation.  The Respondent noted that one might reasonably ask why it was he was now complaining that the CCTV was hearsay, or the CCTV transcript was hearsay.  The Respondent noted that the Complainant admitted that the work orders were falsely completed and that he was not fixing the machines, or checking the machines on the days, dates or times that are reflected on those work orders.  The Respondent noted that those very important documents were rendered meaningless and cannot therefore be relied upon.  The Respondent further noted that the documents do not reflect that the machines were checked, tested or repaired at the times stated on the documents and noted that in a heavily regulated industry such as the meat processing industry, this was simply unacceptable.

·       The Respondent noted that the Complainant’s submissions were misconceived in respect of the repetitive assertion that various matters were hearsay evidence.  The Respondent submitted that it put all matters to the Complainant and he was allowed an opportunity to reply to same, introduce his own evidence if he wished and call his own witnesses etc.  The Respondent noted paragraph 5 of the Complainant’s submission and indicated that it was a clear instance of the Complainant purporting to rely on hearsay evidence as an apparent breach of fair procedures in a manner which was wholly misconceived.  The Respondent submitted that in reality, Ms. Byrne put a matter squarely to the Complainant and advised the Complainant who had given her the information (Mr. Graham), the Complainant was then allowed to comment on it.  He did comment on it and at the conclusion of the interview, he was again reminded he could call any witness he wished to call.  The Respondent submitted that if one considers the submission made by the Complainant, it appeared that he now believed that Mr. Graham should have been physically present at the investigation meeting, to avoid a finding that this was “an introduction of hearsay evidence”.

·       The Respondent submitted that the notes also demonstrate that during the investigation, while Ms. Byrne did reference “Danny says”, her reference to the Complainant being in the canteen was in response to him telling Ms. Byrne that Danny had overloaded him with work.  Ms. Byrne had previously spoken to the Complainant in a performance review meeting in 2023 about the canteen.  In this instance Ms. Byrne relied on her recollection of events and did not speak to Mr. Graham prior to the investigation as he was on holidays.

·       The Respondent submitted that Ms. Byrne emailed Mr. Galvin for feedback on 11 August on the Complainant’s time in Portlaoise as part of the investigation.  The Respondent submitted that this was not a fishing expedition, rather it was a gathering of data for the investigation and the Respondent noted that this feedback could have been helpful to the Complainant.  The Respondent further noted that Mr. Galvin’s response was shown to the Complainant in the investigation and it was also added to the disciplinary pack.  The Respondent further noted that the disciplinary hearing invite made mention of Mr. Galvin as a witness and gave the Complainant the option to call him as a witness, however, the only person the Complainant wanted to talk to throughout the investigation and the disciplinary process was Mr. Graham.  When asked at the investigation meeting were there any witnesses he wanted Ms. Byrne to talk to on his behalf, the Complainant responded no.

·       The Respondent submitted that the Complainant alleged he was overworked.  Prior to the investigation he made no complaint to his manager or HR of being overloaded with work or the need to have someone prioritise his work for him.  In the investigation meeting , the Complainant mentioned being allocated more work than others.  Ms. Byrne interviewed Mr. Chacko as he worked the same shift.  His statement was submitted as part of the disciplinary pack. 

·       The Respondent submitted that the Complainant seemed to take issue with the fact that interviews were carried out.  The Respondent submitted that it was clear from the investigation that all relevant witnesses were interviewed, that the interviews were made available to the Complainant and that he was entitled to challenge any issue as he deemed appropriate.  The Respondent noted that he chose not to do so and that in fact he did not even take the time to read the disciplinary pack. 

·       The Respondent noted the content of paragraph 21 of the Complainant’s submission and submitted that Ms. Byrne had confirmed that she used the same meeting record template and it appeared that she did not change the meeting time on the template, thus resulting in a clerical error.  The Respondent confirmed that the meetings were held at separate times on the same date, Mr. De Almida at 12 noon and Mr. Buggy at 10:00am (as he would have been on an earlier shift).  The Respondent confirmed that all interviews were furnished to the Complainant in advance of the disciplinary hearing. 

·       In relation to the concern raised in paragraph 25 of the Complainant’s submission, Ms. Byrne confirmed that following the investigation meeting of 14 August (when the Complainant raised the issue of his workload), Ms. Byrne emailed Mr. Da Silva on 15 August asking if he could provide all of his work orders and he dropped them into her office the following day.

·       The Respondent noted the concerns raised in paragraph 26 of the Complainant’s submission and submitted that it was clear from the notes that while taking notes, Ms. Diaz asked the Complainant if he could clarify something for her notes and the Respondent noted that in the questions preceding this, the Complainant was evasive with his responses.  The Respondent further noted that Ms. Byrne had already asked the question and that Ms. Diaz had just rephrased it and the Respondent noted that there was nothing impermissible about this.  The Respondent confirmed that all questions were asked by Ms. Byrne who led the investigation and the assertion that Ms. Diaz was an interrogator was simply incorrect.

·       The Respondent submitted that it was correct that Ms. Diaz was also present at the disciplinary hearing, although again it was queried in the submission that it was “unclear in what capacity she attended”.  The Respondent submitted that it was always very clear.  The Respondent submitted that the disciplinary hearing was carried out via Teams from the HR office and that when the meeting was over, the Complainant was told that Ms. Diaz would attend if he needed any help with translation.  The Respondent noted that he agreed to have her present.  The Respondent further noted that the Complainant carried out the meeting in English with very little assistance from Ms. Diaz and that this was referred to by Ms. Hough in her outcome letter.  The Respondent noted that it was unfortunate but that this once again showed the approach of the Complainant in his submissions, which was a scattergun approach seeking to undermine the investigation and disciplinary hearings by attacking everything and raising questions to which the Complainant was always aware of the answers.

·       The Respondent submitted that it was correct that the Complainant raised that he did not receive confined space training.  The Respondent noted that this was the first time that he had mentioned that he was not trained in confined spaces and that it did not form part of the investigation.  The Respondent noted that the questions asked by Ms. Byrne were perfectly reasonable as she wished to clarify what training he was referring to, as he had several training certificates on file. 

·       The Respondent noted the allegations set out by the Complainant in paragraph 32, that Ms. Byrne prevented the Complainant from sending in photographs.  The Respondent noted that this again ignored the simple fact that she scheduled the extra meeting on 25 because he had photographs that he wanted to show her.  The Respondent stated that Ms. Byrne did not understand the need for photographs when it was raised in the investigation.  The Complainant stated that sometimes Mr. Graham and Mr. Buggy asked for photographs of evidence when work was complete.  The Respondent noted that the Complainant was asked by Ms. Byrne to give her a brief account and that it must be noted that the photographs were not in support of his case.  The Respondent noted that the photographs he wanted to send were only to prove that he sends photographs to Danny/Colm to evidence of work he is asked to carry out by them and so when he offered to send more photographs, Ms. Byrne had already seen them on this phone and said it was unnecessary to send them as the photographs were not in dispute.  The Respondent submitted that the Complainant’s submission was aimed at misrepresenting by suggesting that he was prevented from providing any evidence. 

·       The Respondent noted the reference to leading questions at paragraph 35 of the Complainant’s submission and noted that this was not understood by the Respondent.  The Respondent submitted that Ms. Byrne was conducting an investigation rather than an examination in chief in a court/tribunal hearing.  The Respondent noted that the submission also ignored the question preceding same, and noted that Ms. Byrne had stated to Danny Graham, that he, Danny Graham, had reported and suspected that work orders were not completed properly.  The Respondent submitted that the reference to a leading question is misconceived as Mr. Graham had reported the issue in the first place. 

·       The Respondent drew attention to the statement by Danny Graham that “once the paperwork is completed by the end of the week by the lads in maintenance, and is accurate, I’m okay with that ….  I don’t mind when the lads fill out the paperwork, so long as it is done”.  The Respondent submitted that it was not understood why the Complainant was placing emphasis on this statement given that the Complainant did not complete his paperwork accurately and instead falsified the work orders, purporting to show them as complete at a particular time, when this was clearly not the case. 

·       The Respondent noted paragraphs 38 and 39 and appendix 36 relating to a photograph of the boiler press that was shown to the Complainant in his investigation, and the notes of the photograph that were taken when Ms. Byrne spoke to the Complainant in the investigation and Mr. Graham’s response.  The Respondent noted that the statement formed part of the accident investigation report at the time and that this was shown to the Complainant and his response was noted at the bottom of the page.

The Respondent noted that it was necessary to reply specifically to some of the matters in the Complainant’s submission where he appeared to be reopening or attempting to reopen the investigation into his work.  The Respondent submitted that this should not form part of the unfair dismissal claim, i.e. it was not the adjudicator’s function to make a factual determination as to whether or not the Complainant did, as a matter of fact, complete the work or not, or whether it was completed to the required standard etc.  In that regard the Respondent set out the following response: 

1.      That quite simply the Complainant did not do the PM work and admitted that he had not done so.  The photographs provided by the Complainant were of the heat tunnel, the green offal conveyor, the stimulator on hide puller and tallow tank clean out. None of those jobs were in dispute in his disciplinary meetings and the Respondent further noted that he did not complete those jobs alone.  The Respondent noted that the photographs do not advance the matter one way or another. 

2.      In relation to paragraph 48 - the Complainant was somewhat “mixed up”.  The Respondent submitted that the Complainant was asked to recycle the ammonia pump and did not complete it, that the water remover was a different job from the ammonia valve station and was also not completed, as all equipment was left in the area and the Complainant had acknowledged this at a meeting with Ms. Byrne.  The Respondent noted that at page 13 of the investigation notes, the Complainant was shown the photograph of the discarded equipment and he had admitted to leaving it in the yard. 

3.      In relation to paragraph 49 and 50, - the Complainant was given a job to repair the boiler house storage press but he did not repair the mechanism as asked.  The Respondent noted that the door mechanism was repairable and did not need a new lock.  The thatch pond was not completed and it was accepted that photographs were sent but the job remained incomplete.

4.      The Respondent noted that paragraph 51 was correct and that this was flagged by Health and Safety at the time the Complainant was observed on top of the tank.  The Respondent noted that four pallet trucks were not completed, and were left in pieces with parts lost etc.  The Respondent was unambiguous that the Complainant was given four pallet trucks to repair and that the statement about parts to be ordered was not correct or accurate.

5.      In relation to the power pumps, the Respondent noted that the Complainant was asked to fix the pump in the effluent plant, but that the Complainant did not repair it but told Mr. Graham he had repaired it 100%.  The Respondent noted that when Mr. Graham asked him if he had tested it, the Complainant said no.  The Respondent noted that the Complainant was told to open it up again because it would not turn and the Complainant then completed the job but he did not do it alone and required the help of two others.  The Respondent noted that this should have been a one man job.

6.      In relation to the holiday arrangements, the Respondent noted that the process for all employees prior to booking any flights etc, was to complete a holiday request form and have it signed off by a line manager.  The Respondent noted that all employees are made aware of this procedure in their induction and that it was also set out on page 25 of the handbook.  The Respondent further noted that Mr. Graham did speak to the Complainant and told him clearly that he had only 18 days annual left on the system and that this was all he could take.

7.      The Respondent noted that the Complainant had stated that he did not receive notes of the hearing at paragraph 59 and that this was correct.  The Respondent submitted that the Complainant did however receive a detailed outcome from Ms. Hough and that it was notable that the Complainant did not assert that the outcome letter was not accurate or correct.  The Respondent submitted that this was another example of the Complainant appearing to highlight an issue without actually identifying anything substantive. 

8.      The Respondent noted that it was suggested by the Complainant that it was “not clear” in what role Ms. Diaz attended the hearing despite the Complainant having been specifically told of same.  The Respondent noted that the hearing was held in the HR offices via Teams, that Ms. Hough asked the Complainant if he would like the hearing conducted in English, to which he agreed and that she had advised that she would like Ms. Diaz to stay (as she was about to leave the room), in case he had any difficulty with language and he had agreed.

9.      In relation to paragraph 61, the Respondent noted that the correspondence and notes clearly showed that the assertion was utterly misplaced.  The Respondent noted that the Complainant was offered the opportunity to cross examine witnesses, both in the letter sent to him as well as the disciplinary hearing.  The Respondent further noted that the only person he wanted to speak to was Mr. Graham.  The Respondent further noted that during the investigation the Complainant was asked if he would like Ms. Byrne to speak to witnesses on his behalf and he had replied no.

10.  In relation to paragraph 62 of the Complainant’s submission, the Respondent wished to note the following facts in relation to the Complainant’s proficiency in English:

a.      The Complainant was employed in 2021.  He carried out his interview in English

b.      In the two years he was employed he had never requested a translator while in the workplace

c.       He completed all his PM in English and never asked for anything to be translated

d.      All the conversations that the witnesses who will give evidence on behalf of the Respondent, had with the Complainant, during his two years of employment, were in English

e.      His performance review in May 2023 was in English and at no stage did he request a translator, always ending a meeting thanking Ms. Byrne for the opportunity to get his point across, all in English

f.        His email correspondence was all in English

g.       When asked how he would like to conduct his investigation he requested to have it conducted in English; Ms. Byrne told him at the time that Ms. Diaz was a note taker and that if at any time he needed a translation, she would assist

h.      The Complainant understood the questions asked and it is clear from the reading of the notes that he only claimed not to understand Ms. Byrne on one or two occasions when Ms. Byrne asked him if he was trying to mislead her with his responses – only then did he claim not to understand her or the question she asked

The Law:

Unfair Dismissals Act

Fair Procedures

The Respondent noted that the Complainant alleged his dismissal was unfair within the meaning of the Unfair Dismissals Act 1977 as amended.  The Respondent submitted that at all material times the Complainant was afforded full, fair procedures and that the entire process which led to his ultimate dismissal was followed in accordance with the principles of natural justice.  The Respondent further submitted that each step of the process, i.e. suspension, investigation and disciplinary hearing, were conducted in accordance with the Respondent’s disciplinary procedures.  The Respondent noted that the Respondent procedures conform with the Industrial Relations Act 1990 and with S.I.146/2000 Industrial Relations Act 1990 (Code of Practice of Grievance and Disciplinary Procedures) (Declaration Order) 2000. 

The Respondent submitted that the initial suspension with pay was for the purpose of the investigation, was not punitive in nature and that the Complainant was advised of same.  The Respondent drew attention to the matter of suspension of employees as discussed by the High Court in the case of Bank of Ireland V Reilly [2015] IEHC 241, where Noonan J. stated:

“It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct.  It may perhaps be necessary to protect the employer's own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process”.

The Respondent submitted that in this case, the Respondent was very clearly entitled to suspend the Complainant and further submitted that the Respondent is an organisation whose employees work in a dangerous environment and the highest levels of health and safety in the workplace are required.  The Respondent submitted that there can be no derogation from this and that failure in ensuring equipment is working correctly, will have risks to the employees working at the machines and to the consumers of the goods processed in those machines.  The Respondent submitted that the Complainant had been warned in relation to the completion of his tasks previously and it appeared that this had been ignored.  The Respondent submitted that it would have been reckless to have permitted the Complainant to continue his duty pending the completion of the investigation.

The Respondent submitted that the Complainant was advised of his right to representation in each letter that was sent to him during the process and that the investigation commenced within a reasonable time as required by the rules of natural justice.  The Respondent submitted that the entire process was transparent and afforded the Complainant advance notice of every stage as it was progressed and that he also had notice of the matters that would be put to him.

In terms of the investigation, the Respondent submitted that a recent decision of the EAT in Michael Morales V Carton Bros UD835/2011, in which it set out a checklist when determining whether or not an investigation has met the required levels of fair procedures was instructive, in particular the Respondent noted that in the case, the tribunal had noted that to ensure a fair investigation, it was essential:

·       That the employee was aware of all allegations and complaints that formed the basis of the proposed dismissal

·       That the employee had an adequate opportunity to deny the allegations or explain the circumstances of the incident before the decision to dismiss was taken. This includes a right to be represented in appropriate circumstances

·       That the evidence of witnesses of other involved parties was sought where the allegations were denied or the facts were in dispute and

·       the right to be represented by a trade union official or a fellow employee

The Respondent submitted that it clearly met all those criteria and that the investigation was carried out in a manner that was fair and reasonable in all of the circumstances.  The Respondent submitted that there was nothing in the Complainant’s submission that came close to warranting a finding that any part of the investigation was unfair under any of the bullet points set out above, or indeed on any other grounds. 

The Respondent submitted that the initial investigation and in line with the disciplinary policy process, a number of matters were identified as being serious issues in the manner in which the Complainant was carrying out his role, which the Respondent submitted in light of the evidence, namely the admissions on the part of the Complainant, together with his explanation for his actions, was a reasonable determination to make.  The Respondent submitted that the Complainant was advised of same by letter and was provided with all documentation which the Respondent was relying on in initiating the proceedings.  The Complainant was again advised that he was entitled to representation at the disciplinary hearing if he so wished and he was provided with a disciplinary pack which it transpired he ultimately did not actually read. 

The Respondent submitted that the disciplinary hearing allowed the Complainant the opportunity to address any findings of fact made by the investigation and to put forward any other matters that he wished to put forward before Ms. Hough, who was tasked with determining what sanction if any was warranted.  The Respondent submitted that those matters were given due consideration by Ms. Hough and that the decision reached was reasonable in light of same, given the admissions made by the Complainant.  The Respondent submitted that accordingly, the decision made to dismiss was a reasoned one and the reasons for the dismissal were communicated clearly to the Complainant. 

In conclusion the Respondent submitted that the rules of natural justice and constitutional justice, were afforded to the Complainant at all stages and that he was given every opportunity to respond fully to the allegations made against him, and had his explanations and all other arguments and submissions listened to and evaluated before the decision was taken to dismiss him. 

In relation to the decision to dismiss the Complainant, the Respondent opened case law in relation to the proportionality of the decision to dismiss and submitted that it was clear, that the admitted actions of the Complainant left the relationship of trust, which is fundamental to the parties, irreparably damaged and accordingly, the decision to dismiss was entirely reasonable in the serious circumstances of the case.

At hearing, the Respondent Representative outlined that the Respondent had afforded the Complainant a full, fair and thorough investigation and disciplinary procedure.  The Respondent Representative further outlined that there were serious allegations made against the Complainant, that these were subject to investigation and ultimately admitted by the Complainant. It was noted that the Complainant had falsified work order records and it was now clear that the Complainant had never done the work at all.  The Respondent Representative noted that those matters, admitted to by the Complainant, did absolutely constitute gross misconduct and that after a full process of investigation and disciplinary hearings, the decision that he be dismissed was proportionate. 

The Respondent Representative noted that the Complainant was offered the opportunity to provide names of witnesses, to have representation present throughout the processes and was asked if he wished to proceed in English or in his native language.  It was noted that he did not put forward the names of any witnesses, declined representation on each occasion and confirmed that he was happy to proceed in English.  The Respondent Representative noted the requirement for a translator at the WRC hearings and again noted that the Complainant was proficient in English and he stated that this put a question over the credibility of the Complainant. 

In summary the Respondent Representative stated that all matters were put to the Complainant, that there were robust procedures at all stages and that a proportionate sanction of dismissal was applied.  The Respondent Representative noted that the Complainant never appealed that decision. 

Witness evidence – Mr. D. Graham:

Mr. Graham confirmed that he was the Maintenance Manager with the Respondent and had been employed by them for 29 years.  He stated that he was responsible for the day-to-day management and supervision of staff. 

Mr. Graham described the process of issuing PM dockets and maintaining records.  He stated that Mr. Telli was being monitored and was assigned specific jobs.  He stated that on each Monday, the preventative maintenance jobs were printed out and that each engineer would take a number of jobs or issues and that they would be assigned to them.  He described an issue in relation to the pneumatic stand.  He said that it was 1½ times the height of the ceiling and had hand rails on either side but not in front and that employees using it had to wear a harness. He confirmed that it was maintained on a weekly basis and that it was essential to check the stand for any visible issues, e.g. air leaks, water leaks, to ensure a smooth operation.  He stated that there was intense regulation from the Department of Agriculture and that there were always a number of Department of Agriculture officials on site.  He stated that the Department require the PM’s and do a quarterly check of audit reports.  He stated that in relation to customers, that they will often come to the workshop, check paperwork and the signatures and counter signatures on the PM documents.  He said it was a safe management process. 

Mr. Graham confirmed that he had a team of engineers, two who started on the early shift from 5am to 1:30pm, a midday crew and a late crew.  He stated that the rise and fall machine was checked weekly and he confirmed that when Mr. Telli started on a Monday he would have to service that machine.  He stated that this could not be done during production, that the wash down was done at the end of production and it was only after the wash down that the engineers could work on that machine.  Mr. Graham confirmed that engineers have quite a bit of autonomy in that the jobs are not fixed per day, but are required to be completed within the week, and if not complete, that the onus was on the engineer to record that the work was not complete and the reason for such.  He stated that once that was recorded, the work would be reassigned if necessary to another team member and into the following week.  He confirmed that the process was that each engineer did the PM work and that they handed it back to administration if there were any issues and it would then be referred to him for follow up.  He advised that once he received such feedback he would decide if anything further needed to be done and that he had frequent interaction throughout the week with the engineers.  Mr. Graham confirmed that he never had any difficulty with communicating with the Complainant in English. 

Mr. Graham confirmed that there were three issues with the rise and falls stand, that he had checked the PM’s but that all had been signed off by the Complainant.  He advised that based on the issues that arose, he would have expected those PM’s to have been flagged to him.  He confirmed that the downtime resulting from some of those issues, resulted in everybody stopping work and the engineers having to fix the machine again and test it before everybody could return to work.  He stated that 50 people were impacted at the time and were left standing around and that there were three breakdowns in the space of 3-4 weeks; which, he stated, was unusual. 

Mr. Graham stated that when these issues occurred, he checked the PM dockets first and all the relevant jobs had been assigned to Mr. Telli.  He stated that he spoke to Mr. Telli who said that everything was okay, and based on that, Mr. Graham checked the CCTV footage versus the PM sheets and he noted that Mr. Telli was never there at the time that he stated on the form that he had completed the work.  Mr. Graham noted that these dates were between 17th and 28th July.  He noted that all PM’s had been signed off as being complete and in order.  He further noted that the dates on the PM’s for the three different rise and falls stands, were all the same time and date.  He noted that Mr. Telli had been working in Portlaoise for a short period and then had returned to Clonee and that it was around this time that these issues had occurred. 

Mr. Graham confirmed that he had checked the CCTV for all the downtime days and had noted that there was no sign of Mr. Telli working on those machines.  He stated that he brought these matters to the attention of Ms. Byrne in HR, that he outlined his concerns and he identified the issues he believed should have been flagged up.  He stated that when working on the rise and fall machine, the PM dockets would normally be filled out back at the workshop that evening, as it was not practical to fill them out at the machine at the time.  However, he noted that the PM dockets for the machines, showed that the Complainant was in multiple places at the one time.  Mr. Graham stated that it was essential to have trust in the engineers, that you cannot micromanage a whole group like that, and that the engineers are expected to record what is done.

Mr. Graham confirmed that there were other problems, for example with the ammonia pump and the silt in a truck and that there were other issues relating to general request jobs that were attempted but not completed.  He stated that the PPM record however was the more serious issue, that when work is not done it is most serious and that a fall resulting from something like that, could result in serious injury to other workers.

In relation to holidays, he stated that he asked the Complainant for his plans.  The Complainant had advised him that he was hoping to take holidays in September but had not finalised his dates.  Mr. Graham stated that when the Complainant confirmed that he had his tickets booked, he had actually booked for a period of 25 days but he had only 18 days available.  He said that Mr. Telli had said to him that he had to see his family and that he had to book the holiday, however, Mr. Graham stated that the procedure was clear, that each employee needed to check their leave arrangements with management before booking. 

Under cross examination Mr. Graham confirmed that the number of PPM jobs assigned per week varied, depending on the job; but that each engineer was assigned approximately 30 dockets.  He confirmed that the wash down finishes each day at 6:30pm and that it is only after that time that the jobs can be done.  He stated that approximately 35% of the work of an engineer related to planned preventative maintenance.  He confirmed that certain jobs needed to be completed on a daily basis, others weekly and others perhaps once every six months.  He confirmed that the rise and fall platforms needed to be serviced weekly and he confirmed that the same individual gets the same job.

Mr. Graham confirmed that the dockets would be overseen by the manager and would be checked by an auditor and that it was fair to say that it was less accurate if completed a day later. 

In relation to the statement given by him in his interview with Ms. Byrne, the Complainant Representative noted that he had stated that he had no issue with the document being completed by the end of the week and he confirmed that that was the case, as long as the work was done and the paperwork was done.  He accepted that there could be some inaccuracy if forms were completed for 30 jobs five days later.  Mr. Graham confirmed that he had checked the CCTV in relation to the work orders and that while he could not confirm the exact dates he had examined, he had looked at the full week and he had watched the footage at four times the speed.  He confirmed that he watched from 12 noon to 8:30pm and that was the shift that Mr. Telli had worked on the dates in question.  The Complainant Representative noted that this had not been referred to in the interview and Mr. Graham confirmed that it wasn’t because he had not been asked about it. 

The Complainant Representative put it to Mr. Graham that Mr. Telli would say that the check on the stands was to be a visual check only, to which Mr. Graham responded that that was not correct, that it was clear on the form and that it described specifically what actions were necessary.  It was put to Mr. Graham that Mr. Telli would say that he did complete the jobs and Mr. Graham stated that he did not accept that. 

Mr. Graham was asked about the health and safety investigation arising from the steam valve incident.  Mr. Graham confirmed that the top had exploded on the valve and he confirmed that he was not sure when the investigation had concluded, that the matter rested with the Health and Safety Officer.  It was put to Mr. Graham that this incident formed part of the allegations against Mr. Telli and Mr. Graham confirmed that that was the case.  The Complainant Representative brought to attention the letter of 4 August 2023 which stated that the matter was “currently under health and safety investigation” and he asked Mr. Graham if he accepted that that implied that at that time, the investigation was still ongoing. and Mr. Graham advised that it would seem to imply that was the case. 

It was put to Mr. Graham that Mr. Telli was treated differently, that he had less autonomy and was kept under focus by management in relation to jobs assigned to him.  Mr. Graham confirmed that Mr. Telli was given the same range of jobs as other engineers, and he confirmed that Mr. Telli was not put on a formal performance improvement plan. 

In relation to the rise and falls stand, Mr. Graham stated that Mr. Telli was required to carry out a visual inspection including hydraulics and that it was quite clear on the document what needed to be done, that there was no ambiguity, as the steps were laid out on the form.  He stated that there were two cracks in the stand and that the water pipes were showing signs of damage and he stated that these should have been obvious if the work was done, and should have been brought to attention. 

Mr. Graham confirmed that Mr. Grogan, the Operations Manager, had carried out a machine check at 08:00am each day but that this was a functionality check and not a PM check.  He stated that the PM check was a much more in-depth check in relation to the mechanics of the machine.  He stated that it was not credible that a PM check would be done and that suddenly an issue would arise, if the test carried out was okay.  He confirmed that he was of the view that things could happen randomly, but that three in quick succession was highly unusual.  He again confirmed that the purpose of the function test at 08:00am in the morning, was to make sure that the stand was working before the operator arrived. 

In relation to the holiday issues, Mr. Graham confirmed that Mr. Telli had emailed him, but that he had already booked his flights on 24 July.  He stated that he confirmed verbally to Mr. Telli that it was a problem, that he had only booked 18 days on the system as that was all the leave he had available.  He confirmed that he did not tell Mr. Telli that this would become a disciplinary issue but that he had advised Ms. Byrne a few days later that the holiday arrangements had been over booked. 

In relation to the Complainant’s use of English, he stated that he always spoke to him in English, always thought he understood him and had no issues.  He confirmed that he had a number of other non-Irish members on the team and that all conversations were held in English.  He confirmed that the PM dockets were all in English and that the procedure to be carried out was in English.  The Complainant Representative put it to Mr. Graham that the PM dockets were all accurate according to Mr. Telli and Mr. Graham stated that he did not accept that, that a number of jobs were listed as complete at the same times and on the same dates, and therefore could not be accurate.

The Complainant Representative put it to Mr. Graham that Mr. Telli would say he did complete a visual inspection of the stands, to which Mr. Graham replied that what was required in order to complete the work was the work instructions on the PPM document and that these were not done.  Mr. Graham confirmed that the impact of not completing the work was that an accident could occur and another employee could be badly injured or killed and he said that if the documents did not reflect what was done or not, they had no value in terms of protecting the safety of employees.  Mr. Graham confirmed that he was of the view that Mr. Telli was not overworked. 

Witness evidence - Ms. Annemarie Byrne

Ms. Byrne confirmed that she was the HR Manager and that she had been working with the Respondent for approximately eight years and that she had over 30 years’ experience in HR.   She confirmed that Mr. Graham first brought matters to attention and that they related to issues regarding the Complainant’s failure to complete PM checks.  She confirmed that she was appointed as the investigator and that she advised Mr. Telli by email.  She confirmed that she had dealings with Mr. Telli before and that she had general conversations with him about being in the canteen and that there had been some general issues.  She confirmed that she found Mr. Telli to be very competent in English and was surprised at his need for an interpreter at the WRC. 

Ms. Byrne confirmed that at the time of her interview with the Complainant, he was already suspended because of concerns that he had not completed the PM checks.  She confirmed that initially the Complainant said that he had done the checks, but that when there was no evidence of him having done them on CCTV, he admitted that he had not.  Ms. Byrne confirmed that she checked the CCTV footage for the 17th, 19th and 20th and that two other members of staff checked the remaining days.  She stated that when she had checked further work orders and sheets, there were further concerns and that she spoke to ‘Anna’ about doing a further check on CCTV and from that a summary of what was seen was collated.  Ms. Byrne confirmed that she spoke to ‘J.O.’ who is an electrician and that she had spoken to Mr. Colm Buggy and that all notes were made available to the Complainant.  She confirmed that all notes formed part of the disciplinary pack and that all information gathered, photographs taken etc, were provided as part of that pack.  Ms. Byrne confirmed that she drafted the disciplinary pack and asked Ms. Hough to carry out the disciplinary meeting and that after that time she had no further involvement. 

Under cross examination Ms. Byrne confirmed that the copy of statements made at investigation stage, were first made available to the Complainant at the end of the investigation and she confirmed that at the outset of the investigation, the Complainant did not have documentation.  She confirmed that the issues were first brought to attention towards the end of July and that as a result she contacted the Operations Manager, Mr. Grogan.  She confirmed that Mr. Grogan suspended Mr. Telli because of concerns that the PM checks had not been done and that this was a pending investigation. 

The Complainant Representative put it to Ms. Byrne that the investigation was tainted by prior judgement.  She advised that this was not the case, that Mr. Grogan had been the person to place Mr. Telli off duty and that she had been the person agreed who would conduct the investigation.  She accepted that she had been involved but that her involvement had been limited up to that point.  In response to a question from the Complainant Representative, Ms. Byrne confirmed that Mr. Grogan did not have assistance in formulating the letter placing Mr. Telli off duty, but rather had used a draft letter template which was accessible from the management shared drive.

In relation to the health and safety investigation, Ms. Byrne confirmed that she did not know when that investigation had concluded, that she never saw any conclusion to that investigation, that she was told that it was done by Ms. Da Silva, but that she only saw the statement that was included in the disciplinary pack.  Ms. Byrne again confirmed that nothing had been sent to Mr. Telli in advance of the meeting and she confirmed that there was no terms of reference but that the investigation was limited to the allegations set out in the letter of 10 August. 

It was put to Ms. Byrne that there was no formal record of a conclusion of the health and safety investigation to which she responded that she believed there was but that she hadn’t seen it.  She confirmed that she did consider the conclusion of the health and safety investigation to be relevant but that when she didn’t have it, she had instead used Mr. Graham’s statement.  She confirmed that she thought the statement from Mr. Graham was sufficient.  However, she did now accept that the report of the health and safety investigation was pertinent. 

Ms. Byrne also accepted that the Complainant had never been provided with CCTV footage.  She confirmed that this was because there was nothing to view as he was not present at any of the times listed on the PPM document, or indeed at other down times around those dates.  Ms. Byrne stated “he wasn’t there, so there was nothing to show him”. 

The Complainant Representative raised with Ms. Byrne the performance issues referred to in her meeting of 14 August with the Complainant and was asked if she accepted that she was bringing performance issues into the investigation that were not pertinent and Ms. Byrne confirmed that she did so. 

In relation to the emails to Mr. Galvin, she confirmed that she had emailed him and he had given a response but that she had never interviewed him and that she wasn’t speaking to him outside of the investigation but that she believed she was doing a thorough investigation.  She confirmed that she contacted Mr. Galvin in Portlaoise to get an overall view and that she believed this didn’t detract from her doing a thorough and focused investigation and she accepted that the correspondence issued to the Complainant set the limits of the investigation. In that context, the Complainant Representative queried why she contacted Mr. Galvin when the scope of the investigation was clear, to which Ms. Byrne replied that she was taking an overall view.  It was put to Ms. Byrne that this was in fact a fishing expedition and that the investigation was without focus to which Ms. Byrne replied absolutely not. 

The Complainant Representative drew attention to errors in the notes of some meetings under the investigation procedure which Ms. Byrne described as typing errors and the Complainant Representative put it to Ms. Byrne was this not what the Complainant was accused of.  Ms. Byrne replied that no, the mistakes on the PPM dockets were more than simply a typing error, he was not there and the work had not been done.  The Complainant Representative put it to Ms. Byrne that the Complainant only accepted that he hadn’t done the work after about seven hours of ‘grilling’, to which Ms. Byrne responded that ‘there was no grilling’.  Ms. Byrne accepted that the Complainant had shown her the photographs and that she had viewed them, but unfortunately had not noted them in her report.  She accepted that Mr. Graham had confirmed that he was satisfied if engineers filled out their PPM documents by the end of the week and she accepted that it was more likely that errors would occur in such circumstances.  She confirmed that the review of the CCTV was based on the time on the forms but that she had looked at other downtimes to check if the Complainant was present at any other time carrying out the duty. 

The Complainant Representative noted that the statement from Mr. Graham regarding the steam valve was not signed and Ms. Byrne accepted that was the case.  It was put to Ms. Byrne that in that statement, there was no accusation against the Complainant and Ms. Byrne was asked if she accepted that that was the case, to which she responded ‘I suppose I do’.  Ms. Byrne confirmed that in her view her investigation was not about performance issues but was more about misconduct.  She confirmed that in relation to a performance improvement plan, she had met with the Complainant in May before going on holidays and that she had a plan to put him on a performance plan upon her return but that when she came back from holidays, he was already in Portlaoise. 

The Complainant Representative noted that most documentation was not in Portuguese but that the first letter issued was in Portuguese was the dismissal letter.  Ms. Byrne confirmed that this was because he had good English and she confirmed that she had no concern about his standard of English.  She further confirmed that the main role of Ms. Diaz at the meeting was as a note taker but that she was also there to assist with translation if it was required but she confirmed that there was no translation required throughout the meeting. 

The Complainant Representative put it to Ms. Byrne that where she described the Complainant as being “evasive”, perhaps it was a case that he was not fully understanding what was being put to him in English.  Ms. Byrne confirmed that she had interviewed him in English and that all her interactions were in English and that she had no concerns in relation to the Complainant’s standard of English.  She confirmed that she had no role in preparing the dismissal letter which was in Portuguese but that she wasn’t surprised that it had been issued in Portuguese.  Ms. Byrne confirmed that she did offer the Complainant the opportunity to call any witnesses but that he didn’t want to call any, and that eventually she accepted that that was the case.  She stated that the only person the Complainant wanted to call was Mr. Graham. 

The Respondent Representative asked some further questions of Ms. Byrne by way of clarification and as part of that process she provided the following clarification:

She confirmed that at no stage did the Complainant ever say that he had made errors on the PPM documents.

Ms. Byrne also confirmed that she had not been directly in touch with Mr. Graham before the investigation and that the reference at page 151 to a previous conversation, referred to one which had occurred back in the previous May.  She confirmed that she did not believe that the process was tainted by prior judgement, that she was offended by that comment, and that she didn’t work with the Complainant, that she only met him in May of that year.  She confirmed that her understanding of her role was to conduct the investigation and present a pack of the facts and the evidence and then to step away from the process.  Ms. Byrne also confirmed that if she had found that there wasn’t evidence to support an allegation, the issue would have been dropped, but that if she found evidence that supported the allegation then it was upheld.  She confirmed that it was not her role to make findings, that it was simply to make an assessment. 

Witness Evidence – Ms. Diaz

Ms. Diaz confirmed that she was involved in assisting Ms. Byrne as part of the investigation process and that she worked as the HR administrator.  She confirmed that at the investigation she was present as a note taker.  She confirmed that throughout the investigation process she was not required to translate for the Complainant and she confirmed that she considered that the Complainant had the same level of English as she herself had and she noted that when he was avoiding answering a question, he then asked to have a translation. 

Under cross examination Ms. Diaz confirmed that there was no translation required at the disciplinary hearing.  The Complainant Representative put it to Ms. Diaz that she had described herself in the minutes of various meetings as the note taker/translator and asked why do that if there was no requirement for her to translate.  Ms. Diaz responded that this was simply a template that was set up and that she had not amended it but she confirmed that the Complainant did not need translation. 

Ms. Diaz confirmed that Ms. Byrne was her manager. 

The Complainant Representative put it to Ms. Diaz that there was a question put to the Complainant which was listed on page 110 of the submission, which showed that she had asked a specific question.  Ms. Diaz responded that it was not her, that she did not ask any questions, that the initials ID were typed in error and that the question was actually put by Ms. Byrne.  The Complainant Representative directed Ms. Diaz to page 111 of the submission where a further question was asked and it was indicated that Ms. Diaz had asked the question.  Ms. Diaz said it was simply another error, that she had not asked any questions.  She stated that it was simply a typing error. 

Witness evidence – Ms. Hough

Ms. Hough confirmed that she was the Director of HR with the Respondent for approximately nine years and that she had a Masters in HR and Employee Relations from NUIG. 

She confirmed that when she first became involved in the process for the disciplinary hearing, that she had reviewed the disciplinary pack and issued letters to the Complainant, prepared transcripts of meetings etc.  She confirmed that she had initially reviewed the allegations, read the disciplinary pack and prepared for and scheduled the hearing.  She confirmed that the first meeting took place on 13 October online via Teams and that the Complainant was invited to attend at the Clonee site.  She confirmed that the invitation issued outlined the process, the arrangements, the roles etc in the hearing.  She confirmed the potential outcomes of the process and she confirmed to the Complainant that he had the right to add witnesses to the process and to have representation present. 

Ms. Hough confirmed that at the first hearing, everybody was present but that the Complainant did not attend.  She confirmed that she made contact with him and that he arrived 35 minutes late.  She further confirmed that the Complainant had stated that he had not read the content of the disciplinary pack and so she had adjourned the hearing and rescheduled to a later date. 

Ms. Hough confirmed that at the beginning of the next meeting she asked the Complainant if he had read the pack and that he confirmed he had.  She stated that the Complainant was present and Ms. Dias and Ms. Byrne were also present.  She confirmed that she asked him again if he wished to bring representation and if he was happy to conduct the process in English and he confirmed that he was.  She asked him if had read and understood the disciplinary pack that was issued to him and he confirmed he had.  Ms. Hough confirmed that the Complainant declined to have matters translated, that he confirmed that he was happy to proceed in English and that he had read and understood the allegations that were being put to him. 

Ms. Hough confirmed that Mr. Graham joined the meeting and that the Complainant had said that he respected him and he respected his decision; and in that context he didn’t challenge Mr. Graham’s statements.  She confirmed that he was given the opportunity to call witnesses but that he only wanted to call Mr. Graham.  She confirmed that she had taken hand written notes at the hearing and that she used those notes to inform a detailed response letter.

Ms. Hough confirmed that at the disciplinary hearing in relation to the silt, the Complainant did not challenge Mr. Graham’s account and that she had outlined same in the disciplinary letter.  She confirmed that the reasons for having wrong times and dates on the PPM documents kept changing between the investigation and the disciplinary process and she further confirmed that there wasn’t a full translation given but that he did require some assistance whenever he was asked for clarity or where she felt that additional clarity was necessary.  She said she viewed the level of translation required at the WRC hearing to be farcical. 

Ms. Hough stated that she had lots of experience of working with foreign nationals as there were many foreign nationals working for the Respondent.  She stated that she was absolutely satisfied with the Complainant’s ability to understand all aspects of the process.  She stated that she was satisfied to uphold the allegations he had accepted, that she wanted to consider further one allegation and that she had reached out to the Complainant and gave him a chance to respond and that she gave him a number of days but that ultimately, she did not uphold that final allegation. 

She stated that when she issued the letter, she confirmed to him that she had upheld all but one allegation.  She advised that she first informed him by email and then sent a follow up letter to that effect a few days later.  Ms. Hough confirmed that she gave the Complainant an opportunity to make any submissions he wished in relation to possible sanctions and that she did consider options in relation to sanctions, up to and including dismissal.  Ms. Hough confirmed that given the evidence set out in the pack and at the hearing and the risk of the Complainant reoffending, the volume of PPM’s, the safety of other employees and employees of the Department of Agriculture present on site, the reputation of the business and the highly audited industry, the number of flaws that had been found at audit, and the potential serious implications, she felt that the matter warranted dismissal, that the trust between the Complainant and the Respondent was fractured beyond repair. 

Ms. Hough confirmed that she communicated her decision on 24 October 2023 to the Complainant in both English and Portuguese and that she had the correspondence translated because she had been long enough working in the HR industry to have seen people raise issues regarding their inability with the English language.  The Complainant Representative objected to this statement.  She further confirmed that she had outlined in the letter that the Complainant had a right of appeal but that no appeal was made. 

Under cross examination Ms. Hough confirmed that Ms. Diaz was present at the meeting on 17 October 2023 to provide translation as necessary.  She stated that at the meeting on 17th October, Ms. Diaz attended the meeting for the purpose of providing translation where necessary.  She said that she gave translation when needed and confirmed that that was her recollection of the meeting.  The Complainant Representative noted the contradiction between that and Ms. Diaz’s evidence.  Ms. Hough responded that was Ms. Diaz evidence but that it was not her recollection of the events.  Ms. Hough confirmed that Ms. Byrne read out the allegations and that was the end of her involvement in the process.  She confirmed that after Ms. Byrne read through that she put the allegations to the Complainant and that he accepted allegations 1, 2, 3 and 5.  The Complainant Representative put it to Ms. Hough that the Complainant would say that he did not accept those allegations and asked if she was surprised that he had suddenly accepted allegation number 3.  Ms. Hough responded that she was not surprised, that perhaps when he read the evidence, he accepted it.  

Again, the Complainant Representative put it to Ms. Hough that it was clear from the investigation minutes that the Complainant had never made an admission before in relation to the steam valve and surely, she was surprised that he had suddenly accepted it.  Ms. Hough responded that no, she was not surprised. 

The Complainant Representative referred to the disciplinary pack and the fact that the health and safety investigation had not been completed and asked if Ms. Hough accepted that and Ms. Hough said, “well if that’s what it says”.  The Complainant Representative asked how Ms. Hough was able to make a decision in the absence of the outcome of that investigation and Ms. Hough confirmed that she made the decision on the basis that the Complainant had accepted responsibility for the matter and that she had also relied upon Mr. Graham’s evidence which was unchallenged by the Complainant.  The Complainant Representative put it to Ms. Hough that there was nothing to ground this allegation and Ms. Hough stated that there was, there was his acceptance that he not done the work.  The Complainant Representative put it to Ms. Hough that this complaint should not have come before her, as there was nothing to ground the complaint in advance of the disciplinary hearing to which Ms. Hough responded that there was Mr. Graham’s statement.  The Complainant Representative put it to Ms. Hough that this statement had no accusation against the Complainant and also put to Ms. Hough that this statement did not contain any allegation against the Complainant. Ms. Hough responded that this informed an allegation that ultimately the Complainant accepted.  The Complainant Representative noted his disagreement in relation to the grounding of this allegation. 

In relation to witnesses, Ms. Hough confirmed that the only witness called was Mr. Graham.  It was put to Ms. Hough that in the letter of 6 October, the Complainant was advised “he will be given an opportunity to call witnesses …” and that this had not happened.  Ms. Hough responded that it absolutely did but that the Complainant only wanted to speak to Mr. Graham. 

The Complainant Representative noted that the disciplinary process provided for the person conducting the disciplinary hearing to call witnesses and noted that Ms. Hough had not called any witnesses.  Ms. Hough responded that Ms. Byrne had the right to call witnesses but that she had previously met them and had provided their statements in the disciplinary pack and she confirmed that the Complainant had plenty of opportunity to call witnesses if he wished, however the Complainant Representative noted that in the context that those conducting the disciplinary hearing had not called witnesses, the Complainant was denied the opportunity to question witnesses.

The Complainant Representative put it to Ms. Hough that this meeting could not be described as a hearing when Ms. Byrne did not call any witnesses and he put it to Ms. Hough that she didn’t want to hear evidence from anyone.  Ms. Hough responded that she didn’t need to.  The Complainant Representative put it to her that it could all be decided on paper evidence and Ms. Hough responded that no, if no witnesses were called, that’s what she had to rely upon.  Ms. Hough confirmed that she did not view CCTV footage herself and that she relied upon the CCTV transcripts but that she did not interview Ms. Da Silva who had prepared that transcript.  She confirmed that the main reason she accepted this was the acceptance of the Complainant in relation to the allegations.

The Complainant Representative put it to Ms. Hough that only two documents throughout the process had been translated, her letter and the disciplinary policy and asked Ms. Hough if she felt that was reasonable.  Ms. Hough confirmed that she had thought it prudent to do so, but that she could only take responsibility for the element of the process for which she was responsible.  The Complainant Representative put it to her that she had implied that she was long enough in the game and that was why she had her documents translated.  Ms. Hough confirmed that was the case and she accepted that it was prudent and she went above and beyond and that she could only take responsibility for her own actions.  The Complainant Representative put it to Ms. Hough that she should have been concerned in relation to fair procedure and asked did she not think that all documents should have been translated in advance.  Ms. Hough confirmed that she only felt it necessary to have her own letters translated.  She confirmed that she accepted that the first time the allegations were translated was in her letter of dismissal and that she understood that this was because the Complainant had indicated that he was happy to proceed in English and that there had been no reason to doubt him. 

The Complainant Representative put it to Ms. Hough that she was not a linguistics expert and that she was not necessarily a good judge of linguistic ability.  However, Ms. Hough stated that she perfectly understood what the Complainant said and believed he understood what she had said. 

In relation to the sanctions considered, the Complainant Representative noted that Ms. Hough had listed a number of factors that formed part of her decision making and noted that she had not put them in the dismissal letter.  Ms. Hough accepted that this was the case.  The Complainant Representative noted that it was unusual to take account of the risk of reoffending given that the risk of reoffending is punishing somebody for something that they haven’t done.  Given that that was one of the reasons Ms. Hough had outlined for her decision to dismiss, the Complainant Representative put it to Ms. Hough that she should have put that to the Complainant and allowed him an opportunity to respond.  Ms. Hough stated that she had asked the Complainant what he would have done differently and that he had been vague in his response.  She accepted that it was not in the letter as the reason for the dismissal. 

Ms. Hough confirmed that the disciplinary hearing lasted for a number of hours, that it was a complex case and she confirmed that she had decided in the hearing all but one of the allegations.  She confirmed that this was on the basis of the Complainant’s acceptance of those allegations.  She confirmed that she did take a break in the meeting, she did not accept that it was unusual for the decision maker to make the decision in the meeting as the decision she made was in relation to the allegation and not the appropriate disciplinary sanction. 

Replying Submission to ComplainantPost hearing Submission on Redress

On 30 January 2025 the Respondent provided a replying submission in relation to redress.

In relation to the calculation of overtime the Respondent submitted the following:

·       That the Complainant was suspended on the 4th August, 2023 and dismissed on the 24th October, 2023.

·       That it must be borne in mind that the inclusion of overtime in his claim against the Respondent is of significant importance for the Complainant as it allows him to claim ongoing losses.

·       That when he commenced working for both new employers, he started on a greater basic wage than he was on with the Respondent.

·       That the Complainants’ reliance on his overtime claim is to attempt to claim a differential loss from the time he recommenced employment, which he alleged was ongoing.

·       That for reasons which are not explained, the Complainant has selected a standalone period from 3rd February, 2022 – 16th November 2022 to calculate his average overtime and that this is effectively selecting a random and ambulatory period of time in his employment. The effect of the selection of this time period is a grossly inflated claim for overtime, which then has a knock-on impact on the alleged continuing losses.

·       That the period selected is self-serving and intended to maximise his claim (and does so successfully) and that there is no rational basis for selecting a random, standalone period for calculating overtime and it is submitted that the calculation should be made on the basis of the average overtime for 2023 and that accordingly, the calculation above commences in pay period 1 of 2023.

·       That if one considers the overtime that was worked from pay period 1 in 2023, up to the date of his suspension1 (suspension commenced on 4th August, 2023), this shows an average of 16 minutes overtime per week, equating to €8.07 of earnings per week.

 The Respondent noted that the Complainant had exhibited payslips including the payslips from pay period 1 (2023) but cease at pay period 13 (2023). The Respondent exhibited the full 2023 and acknowledged that there was a reduction to €18.00 in pay period. The respondent further noted that the correct rate of overtime pay was €30.00 per hour (time and a half, at a basic rate of pay of €20.00) which equates to €30.00 per hour overtime), and the average 2023 overtime figure is calculated on that basis.

In these circumstances the Respondent submitted that the Complainant’s claim that he received an average overtime payment of €267.21 is grossly inflated and further submitted that the Complainant worked an average of 16 minutes overtime per week, with an average overtime payment (at €30 per hour) of €8.07

The Respondent submitted that the following is the correct application of the correct hourly rate and losses arising from the dismissal:

1.      Period A: 11 weeks out of work post-dismissal

The Complainant had a gross weekly wage of €800.00. He had an average weekly overtime of €8.07. This gives a gross loss during the eleven weeks of €8,877.00.

2.      Period B: Period with 1st New Employer

When the correct average overtime figure is applied to this period, the Complainant’s claim for this period of employment ceases, as it is clear there is no gross differential loss. He was paid a greater basic wage and suffered no recoverable losses during this period of work.

3.      Period C: Period with 2nd New Employer

Similarly, when the correct average overtime figure is applied, the Complainant’s claim for his period of employment with the 2nd employer ceases, as it is clear there is no gross differential loss. He was paid a greater basic wage and suffered no recoverable losses during this period of work. Furthermore, he has never had a guarantee of overtime while working with the Respondent and therefore is not entitled to claim an overtime loss now in his role with the new employer.

4.      Period D: Ongoing Losses

The Respondent submitted that the Complainant has no ongoing losses, as he is in a better position financially in his current role.

5.      Finally, the Respondent submitted that it is not clear if the Complainant was paid any State benefits during his period of unemployment of 11 weeks. Clarity is required as in the event he received jobseekers’ allowance, this would need to be deducted from the claim made during those 11 weeks.

Calculation of Losses

The Respondent submitted that the remedy of compensation is described in s 7(1)(c), as amended by s 6(a) of the 1993 Act, as: “(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 s 17 of this Act) as is just and equitable having regard to all the circumstances…”

The Respondent noted that the High Court has said of the above provision that: ‘The legislation does not envisage the deciding body being required to always, or perhaps ever, engage in a calculation or mathematical formula by which it determines the extent of the financial loss exclusively by reference to the weekly remuneration of an employee.’2

The Respondent submitted that the Complainant’s submissions had approached the calculations of his alleged losses in a binary manner, without any regard to the totality of the circumstances. If the Complainant is to succeed (and it is denied that he is entitled to succeed at all) then his losses must be severely limited on account of his own contribution to his dismissal. The Respondent submitted that it was a matter for the Adjudicator to have regard to the evidence that was heard, but it will be recalled that no explanation was ever offered for his various changing accounts as to why he did or did not complete the paperwork in question. He was evasive when cross-examined on this issue, to put it mildly. The Respondent submitted that it would not rehash the evidence but would simply state that the Complainant’s evidence could only lead to a conclusion that he did in fact contribute heavily to his own dismissal.

 Contribution to Dismissal:

The Respondent noted that an employer bears the burden of satisfying the WRC that an employee contributed to his or her own loss. The EAT has interpreted s 7(2)(a) and (b) as requiring action that is ‘blameworthy’ in some way. The conduct, competence, and so on, of the employee must be known to the employer at the time of the dismissal in order to rank as contributory action under s 7(2)(b).

The Respondent drew attention to the 3rd edition of “Redmond on Dismissal Law” in this regard.

The respondent submitted that if the Complainant was to succeed, his contribution should be deemed to be very significant, that he was aware that what he was doing in falsifying records was incorrect, changed his account on numerous occasions and never actually explained why he did what he did. The various breaches were all serious, and in particular the falsification of paperwork breach was an egregious and serious one, going to the heart of health and safety within the workplace.   The Respondent further submitted that it would be neither just nor equitable to assess the Complainant’s claim as per the submissions made on his behalf and it would not accord with the reality of the overall factual situation, and would send an alarming signal, if an employee who had conducted themselves in the manner which the Complainant did were to receive anything other than greatly limited compensation.

In conclusion the Respondent submitted that the claim for overtime and ongoing losses was grossly exaggerated and inflated. The manner in which this was presented and prosecuted should be considered when determining what is “just and equitable” per in s.7(1)(c).

I have given careful consideration to the submissions provided by the parties, together with all supporting documentation, and to the case law relied upon by the parties.  I have also taken account of the witness evidence given under oath/affirmation and have made my own enquiries in order to fulfil my obligation to fully investigate the matters before me.

In the first instance, I consider it important to clarify the role of the Adjudication Officer in relation to a complaint of unfair dismissal.  In this regard I rely upon the established case law which determined that the role of the Adjudication Officer is not to determine whether or not the Complainant did or did not carry out the act of which he/she was charged but rather to establish if the Respondent has proven that the dismissal was not unfair and in so doing to determine if the decision to dismiss was a proportionate response and within the band of sanctions which could be imposed by a reasonable employer.  In such circumstances I will not seek to determine if the Complainant acted as alleged by the Respondent, but rather I will seek to determine if the Respondent has proven that the dismissal was fair and proportionate in all the circumstances of this case.

In that regard I will consider each of the following:

·       Procedural Fairness

·       Proportionality/Reasonableness of the decision to dismiss

Procedural Fairness

I noted the following procedure utilised by the Respondent:

·       The Complainant was placed on paid suspension with effect from 4 August 2023 and was issued with a letter of the same date confirming that suspension “pending an investigation into your conduct and performance”.  The letter also outlined the following allegations:

o   That the Complainant was alleged to have signed and confirmed completion of work orders where the work orders appeared not to have been completed ( a full list of dates and work orders etc was included)

o   That the Complainant was alleged to have failed in his duty to safely carry out works on a steam valve that resulted in an explosion (it was confirmed that this matter was under separate health and safety investigation)

o   That the Complainant was alleged to have failed to follow the holiday process and secured flights before having his holidays authorised by his manager

A list of 9 other works that it was alleged was not completed by the Complainant was also set out. The correspondence also confirmed that a disciplinary investigation would be established and that the investigation may lead to a disciplinary hearing which had the potential to result in sanctions, up to and including dismissal, being imposed on the Complaint.

·       The Complainant was written to on 10 August 2023 by Ms. Anne-Marie Byrne, who confirmed that she had been appointed to conduct the investigation.  In that correspondence she confirmed again the allegations that were under investigation and the potential consequences of the process.  She invited the Complainant to a meeting and advised him to “have available any relevant facts or documentation” relevant to his case.  She also advised him of his right to “bring a colleague or representative to the meeting and she provided the Complainant with a copy of the Respondent Disciplinary Procedure.

·       The first meeting with the Complainant took place on 14 August 2024, at which, Ms. Byrne’s first action was to put the allegations to the Complainant and ask if he understood.  The Complainant confirmed that he did.  He also confirmed that he had received and understood the invitation to the investigation meeting. Ms. Byrne then asked if the Complainant, given his level of proficiency in English, he could confirm that he wished to proceed with the meeting in English and that all correspondence would be in English.  The Complainant advised that “yes, I want to do this in English”

·       Ms. Byrne showed the Complainant copies of photographs of various machines/equipment and showed him copies of the PM dockets signed by him.  Over the course of a number of days she put each allegation to him and asked for his account of the issue. 

·       Ms. Byrne met with the Maintenance Manager, the Assistant Maintenance Manager and a number of colleagues of the Complainant as part of her investigation.

·       On 6 October 2023 Ms. Byrne wrote to the Complainant to confirm that the investigation was now complete and that she had decided to refer the matter to a disciplinary hearing. She advised that Ms. Hough would conduct the meeting and would be the decision maker in that process.  She further confirmed the allegations against the Complainant that Ms. Hough would adjudicate upon and that she would also be the decision maker in relation to any disciplinary sanction that might be imposed.  In that correspondence Ms. Byrne also set out, in some detail the procedure that would be followed in the meeting.  A disciplinary pack containing the notes of all meeting held as part of the investigation, copies of work orders, photographs relevant to the various allegations were appended to that correspondence.

·       The first disciplinary hearing was scheduled for 13 October 2023 but the Complainant failed to attend.  He subsequently arrived late, after he was contacted and then confirmed that he had not read the disciplinary pack provided to him.  Ms. Hough adjourned the meeting and rescheduled for 17 October.

·       On 24 October 2023 Ms. Hough issued her decision arising from the disciplinary meeting.  In that correspondence she confirmed that the Complainant had accepted the allegations set out at no’s 1,2,3 and 5 in that correspondence.  She that she was upholding all the disciplinary allegations with the exception of no. 4d.  Ms. Hough referred to earlier correspondence which had been issued to the Complainant advising him of her decision and giving him the opportunity to make representations in relation to potential sanctions.  She noted the responses received related to statements that the Complainant was “being wronged” but that nothing was forthcoming in relation to sanctions.

·       That letter advised the Complainant of his right to appeal the decision to dismiss but ultimately the Complainant did not make any appeal.

Having reviewed all of the above in some detail I consider that the Respondent followed a robust process in addressing matters which gave rise to his dismissal.  I noted that at all times the Complainant was made aware of the details of the allegations against him and of the seriousness and potential consequences that might arise.  He was afforded the opportunity to bring a representative, and to put forward witnesses and he chose not to do so. 

Much was made of the failure of the Respondent to provide an interpreter and to provide documentation in Portuguese.  On the one hand the Complainant appeared at hearing to have practically no English, yet he had managed to conduct all his business throughout his employment in English.  During the investigation he was asked if he wished to proceed in English and he confirmed that he did.  Ms. Diaz was available to support him with translation if required and it appears from all the witness evidence that little, if any, translation was required.  The Respondent described him as needing assistance when difficult questions were put to him during the in-house process. 

At hearing, everything said by representatives, witnesses and the Adjudication Officer was translated.  Despite this, the Complainant did not answer many questions put to him, or alternatively provided an answer that was unrelated to the question.  I found his behaviour at hearing to border on obstructive and I found him not to be a credible witness.

I formed the view that the Respondent had an absolute right, in the circumstances of this case, to place him on paid suspension pending investigation.  The allegations against him were of a serious nature and if found to be correct put himself, other staff and other business visitors to the site at risk.  I am satisfied that in this regard the Respondent followed the right course of action in relation to the safety of all concerned.

I am also satisfied that the Respondent followed a robust procedure in investigating the allegations against the Complainant.  The allegations were clearly set out for the Complainant, and the potential consequences outlined.  The Complainant had ample opportunity, over the course of 4 investigation meetings to clarify his position and to provide any evidence he wished.  He was afforded the right to representation, translation support and to identify witnesses.

I consider the investigation conducted by Ms. Byrne to have been thorough, and while it is possible to point out some minor imperfections, there was nothing done which could be described as fatal to a fair investigation process. 

In relation to the disciplinary hearing, the Complainant was again advised of the allegations and the potential consequences that might arise.  He was again afforded the right to representation, translation support and the right to bring witnesses.  As the investigator Ms. Byrne was present for him and/or the disciplinary decision maker to question, as was Mr. Graham.  Ultimately Ms. Hough issued a letter clearly outlining her decision to dismiss him and setting out the basis for her decision.  In that correspondence she also advised the Complainant of his right to appeal her decision.

In all of the above circumstances I find that the Respondent did apply a fair procedure when addressing the allegations that gave rise to the Complainant’s dismissal and in the procedure to dismiss.

Proportionality/Reasonableness of the Decision to Dismiss

I noted the respective positions of the parties in relation to decision to dismiss.  Having considered the detailed allegations against the Complainant I noted that most of the allegations related to work not completed and signed off as having been done.  I noted that, with the exception of 1 issue, the Respondent upheld all allegations against the Complainant. 

In reviewing the supporting documentation provided I noted the outstanding PPM and other work and I paid particular attention to the evidence given by Mr. Graham at hearing. In particular I accept Mr. Graham’s testimony that the Respondent operates in a highly regulated environment with regular audits and inspections to ensure the safety of equipment.  This safety is a requirement for the employees and external parties using equipment on site but also for the safety of food processing, and consequently the safety of the public.

I accept Mr. Graham’s evidence that it was essential to have trust in the engineers, that you could not micromanage a large group like that and that you should be able to rely on those employees to complete their tasks and to record that work accurately.  I noted his statement that, in essence, if this was not done then the whole system of recording maintenance became meaningless.

I also accepted Mr. Graham’s evidence that when PPM work is not done it is most serious and that a fall resulting from something like that, could result in serious injury to other workers.

I have considered Ms. Hough’s evidence at hearing and her correspondence of 24 October 2023 where she outlined the rationale for her decision making.  I noted that she concluded that the Complainant frequently put himself, the business and his colleagues at risk.  Based on her evidence at hearing it is clear that the Respondent had formed the view that the Complainant had broken trust and given the potential serious risks that could arise from his failure to attend to his duties the Respondent made the decision to dismiss.  I have formed the view that in these circumstances this decision comes well within the band of sanctions which could be imposed by a reasonable employer.

Taking all of the above into account I find that the Respondent has demonstrated that the dismissal of the Complainant was a fair dismissal.

CA-00062459-001       

This complaint was withdrawn by the Complainant.

CA-00062459-002       

This complaint was withdrawn by the Complainant

CA-00062459-003       

I have found that the Respondent has demonstrated that the dismissal of the Complainant was a fair dismissal.  In all of the circumstances it is my decision that this complaint is not well founded.

CA-00063046-001

This complaint was withdrawn by the Complainant.

Unfair dismissal