Complainant

Respondent

Parties

Anthony  Gallas

HPC Sales Limited t/a  TJ O' Mahony

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00071104-001

26/04/2025

The Complainant was employed as a Trade Counter Sales Person with the Respondent from 24 October 2024 until termination of his employment on 16 April 2025.  He alleged that he was unfairly dismissed for having exercised his rights under the Protected Disclosures Act. 

The Respondent conducted business in the wholesale and retail trade sector.  There was no appearance by or on behalf of the Respondent at hearing. 

In his complaint form, the Complainant outlined that he was employed as a Trade Counter Sales Associate with the Respondent from the 24 October 2024 with a probationary period of six months.  He confirmed that during the interview, the Branch Manager and the CEO informed him that he was being groomed to become a Trade Area Manager and that this role was not immediately formalised to allow time for learning and team integration.  He outlined that in February 2024 prior to his employment, he was diagnosed and medicated for PTSD and was advised by doctors to avoid undue stress.  He was further advised to seek local employment where driving was minimal, as PTSD arose from a vehicular accident.  He outlined that between the period of October 2024 and January 2025 he experienced sustained bullying by a colleague (employee 1) including:

·         Unprofessional verbal/non verbal conduct (scornful remarks, public criticism in front of customers/suppliers/staff, scornful looks)

·         Hostility when requesting assistance or implementing improvements (e.g. reorganising layouts, supplier relationships)

·         Supplier representatives commented on the mistreatment

o   In January 2025 he submitted that he prepared a detailed appraisal for his scheduled performance review outlining his bullying concerns and his contributions.  The meeting with the Branch Manager however was cancelled and never rescheduled

o   Between January and April 2025, the Complainant avoided employee 1 in order to mitigate his stress.  He raised concerns informally with supportive colleagues who confirmed that they were unaware of his managerial trajectory

The Complainant outlined that on 8 April 2025 he met with the Branch Manager who had recently returned from a three-month medical leave, to request a transfer to another branch in the same role as the position was vacant.  He submitted his January 2025 appraisal, detailing bullying.  The Branch Manager assured him that he would consult HR and instructed him to keep it confidential. 

On 10 April 2025 he emailed the Branch Manager to confirm his discussion and to request follow up.  He received verbal acknowledgement on 11 April with no further action.  The Complainant advised that on 16 April 2025 he was called into the office by his Manager, that he was given no reason for the meeting before it began and he was not afforded any representation.  At that meeting his employment was abruptly terminated by the Branch Manager and he was handed a termination letter with immediate effect from HR, dated the same day. The letter stated that the reason for his dismissal was that he did not meet standards.  He stated that no clear reason was given in the termination letter, however he stated that the Branch Manager advised him that the reason for his dismissal was consistent lateness, although no evidence was provided.

The Complainant outlined that he had never received any prior warnings or meetings about lateness or performance or advised that he was at risk of dismissal if he did not improve.  He was never informed of the purpose of the meeting prior to walking into it, nor of his rights to be represented and was therefore not able to respond properly to the allegations.  He advised that he did not receive an impartial hearing, evidenced by the fact that the Manager had a pre prepared letter of dismissal ready to hand to him and had clearly made up his mind on the issue before the meeting.  He advised that he was never afforded the opportunity for representation or the right to appeal to a more Senior Manager and he was given no opportunity to respond to any allegations. 

The Complainant outlined that days earlier, the Branch Manager had approved him to take pre booked holidays in May 2025 and that his travel costs associated with booking that holiday was €3,500. 

The Complainant advised that on 16 April 2025, he emailed the HR Manager, the Branch Manager and the CEO to appeal, attaching the documents regarding the appraisal and other relevant correspondence.  On 22 April 2025 he sent that documentation by registered post.  On 24 April 2025 he received a response from the HR Manager, solely addressing his lateness and ignoring the bullying claims.  He stated that HR claimed that he was late 82 times. 

The Complainant outlined that the lateness was based solely off clock sheet and any clock in past 8am, even one minute, was considered late.  Of the 82 incidents of lateness, 50 of them were clocked in within five minutes of the start of the shift and 27 further lates were within ten minutes of the shift.  He stated that he commonly clocked in with other staff members at these times.  In addition, he also had to take a bus to work at times and the walk from the bus stop to the clock station made it impossible to clock in exactly at the start of the shift time.  The Complainant stated that sometimes he had to go to his desk first and put his backpack and coffee down, log into his system and then go back to clock in.  Finally, the Complainant outlined that sometimes he had to use the restroom first after arriving at work and then clock in, and that he was never made aware in any way, that any of these actions were a performance related issue.  His lateness was never queried by the Branch Manager or by HR throughout his employment. 

The Complainant outlined that he had never received compensation for any overtime worked past the end of the contracted shift and that it was extremely rare not to work past 5pm as the store closure was 5pm and customers had the right to call or shop up to 5pm.  He stated that there were 84 instances of clocking out past 5pm without compensation for overtime.

The Complainant outlined that the Employee Handbook 2024, which was provided to him on commencement of his employment, stated that progressive disciplinary sanctions would be applied in terms of warnings and in terms of improvement plans.  He stated that he was afforded no warnings, no notice or time to respond to allegations.  He noted that the disciplinary action was taken within days of him having raised bullying grievances and he noted that his work featured in company promotions and was praised by his colleagues.  The Complainant also noted that there were a number of contract violations including working past contracted hours without overtime being provided and that no performance review was conducted by the Branch Manager prior to termination. 

In conclusion the Complainant stated that his dismissal was unfair and violated natural justice, as there were no warnings given, the procedure did not comply with the procedure as set down in the company Disciplinary Procedure, that it was a retaliatory dismissal following him having raised a grievance, that there was no impartiality, no opportunity for representation and no notice of dismissal prior to the meeting.  He stated that there was a failure on the part of the Respondent to address his bullying complaint and that the matter was a breach of the Safety, Health and Welfare at Work Act 2005.  He outlined that he had suffered financial and emotional harm, that he had suffered a loss of income, that he had lost non refundable leave expenses and that he had suffered exacerbated PTSD as a consequence.  The Complainant submitted a number of documents to support his allegations. 

Witness evidence – the Complainant:

The Complainant stated that there were a number of imbalances in how the matter had been handled by the Respondent, that there were contractual breaches and procedural failures in relation to his dismissal. He stated that there was no evidence of any wrongdoing on his part and that there was no mandatory performance review prior to the termination of his employment. He stated that he had been given specialist training and that if he was performing as poorly as the Respondent would purport, then why was he provided with the specialist training for promotional opportunity.  The Complainant stated that he had made a protected grievance just days before his retaliatory dismissal. 

The Complainant stated that he was hired on 21 October 2024 and that at the outset he was working as a Trade Area Manager, that he built relationships and that he took things seriously and improved sales.  He stated that in January he had sought a transfer from the Branch Manager in a meeting where he had raised concerns in relation to bullying by a colleague.  He stated that the Branch Manager assured him that he would take it to the HR Manager and that he should not talk to anyone.  The Complainant gave evidence that on 10 April he sent a follow up email to the Branch Manager, referencing their previous conversation and he sought an update.  He stated that the Branch Manager met with him and asked if everything was alright and assured him that the matter was being looked into.  However, he gave evidence that on 16 April he was called to a meeting with the Branch Manager, that he had no prior notice of that meeting and he had no opportunity to bring representation to the meeting.  He gave evidence that at that meeting he was handed a letter that was already prepared, outlining the termination of his employment.  The letter did not set out any reason for the termination of his employment, however, the Branch Manager advised him that it was because of his lates.  He stated that the Branch Manager demanded that he fill out a termination form at the time.  The Complainant stated that he was given no opportunity to explain nor indeed to improve.  The Complainant stated that on analysis of the 82 lates in the morning, versus the working beyond 5pm, there was a net balance of approximately 20 minutes and he stated that this minor variance was never once discussed with him.  He stated that as a result of the stress caused by this matter, he had needed further therapeutic support and he was at a loss of the holiday costs, which he could no longer afford.  He stated that he lodged an appeal but that the response to that appeal focused only on lates and the fact that he was on probation.  He stated that his probation was due to end on 21 April and that he was dismissed immediately prior to the end of his probation.  He stated there was no informal conversations with him at any time.

In relation to redress, the Complainant stated that his preferred redress would be to receive compensation.  He stated that he had no trust in the organisation after what had happened.  He confirmed that he had worked for eleven weeks in the intervening period between the date of his dismissal and the date of hearing and that he had been hired by his mother to do work for a period of three months.  He stated that it was difficult to get work without a reference and in the context of having been dismissed.  The Complainant also gave evidence that he would not have booked the vacation had he known that his job was on the line.

The Complainant submitted that he had also incurred medical costs as a consequence of an exacerbation of his PTSD resulting from institutional betrayal.  He advised that his only income other than working for his mother for a short period was a disability pension which he was in receipt of from another country. 

There was no appearance by or on behalf of the Respondent at hearing.

Preliminary issue:

The Complainant commenced employment on 24 October 2024, and his employment was terminated on 16 April 2025, therefore the question arises as to whether or not he comes within the protection of the Unfair Dismissals Act, having less than 52 weeks’ continuous service. 

Section 2(1) of the act states that

“This act shall not apply in relation to any of the following persons:

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

The act also provides that an employee is exempt from the requirement to have at least 52 weeks’ continuous service with the employer at the date of dismissal where the dismissal relates to any of the following:

·         Pregnancy, maternity or connected matters,

·         Trade union membership or activity,

·         Exercising or proposing to exercise a right to paternity leave, or transferring paternity leave under the Paternity Leave and Benefits Act, 2016

·         Exercising or proposing to exercise a right to parental leave under the Parental Leave Acts, 1998-2003

·         Exercising a right to force majeure leave

·         Exercising a right to adoptive leave

·         Exercising a right to carers leave,

·         Exercising rights under the National Minimum Wages acts 2000-2015

·         Making a protected disclosure under the Protected Disclosures act 2014

The Complainant contended that he had made a protected disclosure to the Respondent prior to his dismissal and he submitted that this took the form of a complaint of bullying against an employee of the Respondent.  He submitted that the Respondent initially ignored his complaint, but that when he raised it a second time with a new manager he was called to a meeting and was dismissed.

Section 5 (3) of the Act outlines relevant wrongdoings as follows:

“The following matters are relevant wrongdoings for the purposes of this Act—

a) that an offence has been, is being or is likely to be committed,

b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

d) that the health or safety of any individual has been, is being or is likely to be endangered,

e) that the environment has been, is being or is likely to be damaged,

f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

h) that a breach has occurred, is occurring or is likely to occur, or

i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.”

Section 5 5(A) of the Protected Disclosures Act states that a matter is not a “relevant wrongdoing” within the meaning of the Act if it is “a matter concerning interpersonal grievances exclusively affecting a reporting person, namely grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer, which concerns the worker exclusively”.

The complaint made by the Complainant to the Respondent related to a complaint of bullying of him by another employee of the Respondent.  Based on Section 5 5(A) it is clear that such a reporting does not constitute a protected disclosure within the meaning of the act.

Based on the above, I find that the Complainant did not make a protected disclosure to the Respondent and therefore is required to have 52 weeks’ continuous services to come within the protection of the Unfair Dismissals Act.  In circumstances, where the Complainant has, just short of 25 weeks’ continuous service he does not meet the service requirements to pursue a case under the Unfair Dismissals Act.

I have found that the Complainantdoes not meet the service requirements to pursue a case under the Unfair Dismissals Act and therefore does not have locus standi to pursue a complaint of unfair dismissals under the act.  In the circumstances I must find that this complaint is not well founded and I decide accordingly.