Case Number: ADJ-00021420. Workplace Relations Commission

• Judgment Date: 13 January 2022
• Docket Number: ADJ-00021420
• Date: 13 January 2022
• Hearing Date: 06 November 2019
• Year: 2022
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 77 of the Employment Equality Act, 1998,Section 12 of the Minimum Notice & Terms of Employment Act, 1973 , Section 27 of the Organisation of Working Time Act, 1997 , Section 28 of the Safety, Health & Welfare at Work Act, 2005 , Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969,following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

This matter was heard by way of initial direct hearing (06/11/2019) and finally by remote hearings (25/03/2021 & 14/10/2021) pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. Parties consented to these arrangements.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance of the October 2021 proceedings that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Affirmation / Oath was administered to all witnesses.

Full Cross Examination took place.

Arising from Covid 19 difficulties a delay was occasioned in the finalisation of the Adjudication decision.

Background:

The issues in contention concern the alleged Dismissal, Discrimination against, Penalisation and Working time complaints of a motor Mechanic by the Employer – a Transport Company. The Employment commenced in November 2018 and ended on the 14th March 2019. The rate of pay was €720 Gross for an average week of between 40 and 48 hours.

1: Summary of Complainant’s Case:

Oral Evidence was given by the Complainant and supported by a Written submission from his Legal advisors. The evidence was cross examined on, the 14th of October 2021, by the Respondent Representative. Reference was made to former employees who had left the employment or had unfortunately passed away. Conscious of the rules regarding hearsay little weight could be made of this evidence. 1:1 Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts - CA-00028129-001 The Complainant was dismissed on the 14th March 2019 by Mr. S, Respondent Owner/Manager. The Complainant was in bed in a House used by employees as lodgings. Mr. S entered the Complainant’s bedroom. Mr. S was very agitated and was waving around a Solicitors letter in regard to a workplace accident which took place on 23rd January 2019. The Owner/Manager, Mr. S assaulted the Complainant and in a very rough physical manner, causing personal injuries, ejected the Complainant from the lodgings. He was told “never to come back”. Mr. S, it was alleged, threaten to shoot the Complainant if he ever returned and made a hand gesture imitating a hand gun/pistol. It occasioned the Complainant calling the Gardai for assistance. Another employee intervened to restrain Mr. S. This employee had subsequently left the Company and was not available to give evidence. The Complainant never worked at the Respondent premises after this incident The Complainant’s Legal Representative pointed out that no proper employment procedures of any nature, such as would be set out in SI 146 of 2000 -Code of Practice on Grievance and Disciplinary Procedures - were followed by the Employer. It was a blatant case of Unfair Dismissal for raising a Safety complaint . 1:2 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 - CA-00028129-002 The Complainant alleged Discrimination and allied Victimisation in his treatment by the Respondent. The Complainant is of Lithuanian nationality and had difficulty with the English language. The Respondent Owner /Manager, Mr. S constantly belittled him and ignored his complaints regarding working conditions and tools required. He was often reminded that he was an immigrant in Ireland. No other Employee of Irish origin was treated in this manner. His ejection from the lodgings and the ending of his employment was clearly racist as it was couched in very racist language, gestures and manner from Mr.S. This was clearly Race motivated action and obvious Victimisation. 1:3 Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 - CA-00028129-003 The employment ended on the14/03/2019 leaving pay outstanding to the 22/03/2019 - this being a week’s minimum notice outstanding. 1:4 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00028129-004 The Complainant did not receive his due Holiday pay on leaving the employment. 1:5 Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 - CA-00028129-005 The Complainant alleged that he was Penalised by being Dismissed by his former employer contrary to Section 27 of the S, H & W Act, 2005. The Complainant had raised, by letter from Griffin Solicitors dated the 21st February 2019, serious H&S issues with the Respondent. The actions of Mr S on the 14th March was clearly linked to having received Mr. Griffin’s letter. He had the letter in his hand and was clearly very agitated by the contents. Section 27 of the S, H & W Act, 2005 clearly protects employees from Dismissal, Coercion, or Intimidation as a result of exercising their statutory rights under the Act. The Employer in this case was egregiously in breach of Section 27 of this Act. 1:6 Unfair Dismissals Act,1977 Complaint. Although not part of the initial referral (01/05/2019) the Complainant added a subsequent complaint under the Unfair Dismissal Act, the Employment Equality Act,1998 and the Safety, Health & Welfare at Work Act,2005 and Minimum Notice and Terms of Employment Act, 1973. (letter of the 1st May 2019.) Dismissal was alleged to have been based on Race Grounds. At the final Hearing on the 14/10/2021 the UD Act,1977 complaint was withdrawn.

2: Summary of Respondent’s Case:

Oral evidence from the Owner/Manager and the Representative supported by documentation was presented by the Respondent on the initial hearing on the 6th November 2019 and again at the hearing on the 14th October 2021. All evidence was subject to cross examination by the Complainant Representative. A potential Respondent key witness, a former Supervisor /Office Manager had most unfortunately passed away between Hearings. 2:1 Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts - CA-00028129-001 The Respondent maintained that no actual dismissal from Employment had taken place. It was accepted that he had been asked to leave the company Lodging House. The Complainant was not paying his rent. All these accommodation matters were completely separate from an Employment Dismissal. The Owner /Manager gave evidence that the Complainant had effectively been homeless, and the Company had given him only temporary accommodation in the Lodging House. It was never intended to be a permanent arrangement. He had been almost destitute, and the Respondent had advanced him money to get him set up. He had been provided with new protective clothing – a good jacket for example. The tools complained about were not old fashioned and no complaints had ever been made about them. The Complainant was not of a great skill set as a mechanic- he had for example neglected to put proper track rod nuts on a Truck before a NCT Inspection. This was a basic mistake for an allegedly experienced mechanic. The Owner/Manager denied every making gun/pistol signs at the Complainant. The only key witness, the Supervisor/ Office Manager, who had accompanied the Owner/Manager to the Lodging House had unfortunately passed away since the events. Following the meeting in the Lodging House of the 14th March the Respondent had written twice to the Complainant querying his Sick leave status. This was not the action of an employer who believes the employee has been dismissed. No letter of termination of employment was every written to the Complainant. The Complainant did...