Case Number: ADJ-00028169. Workplace Relations Commission

• Docket Number: ADJ-00028169
• Hearing Date: 10 November 2020
• Date: 01 January 2021
• Court: Workplace Relations Commission
• Respondent: Recruitment Agency

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00028169

Parties:

	Complainant	Respondent
Anonymised Parties	General Operative	Recruitment Agency

Representatives self Aislin Reid (IBEC)

Complaint(s):

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-00036117-001	12/05/2020

Date of Adjudication Hearing: 10/11/2020

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The claim herein was heard remotely in circumstances where a general restriction, on face-to-face hearings arising out of the COVID pandemic, was in place.

Background:

The Complainant was employed from 16 April 2008 to 20 November 2019 as a General Operative. He worked on three different types of work on a rotation basis. The Complainant states he was unfairly dismissed after 11 years of service due to underperforming during picking.

Summary of Complainant’s Case:

An Interpreter was present for the Complainant. The Complainant stated he was unfairly dismissed, after 11 years’ service with the Respondent as he could not reach his expected target of 84% of performance due to working in accordance with Health and Safety rules. The beginning of the disciplinary process which lead to his dismissal started about 12 October 2018 and was continued until the end of his employment. The Complainant confirmed he did not have all copies and disciplinary meeting statements; he had asked the Respondent for copies and they did not want to give them to him despite his requests. The Complainant appealed all warnings he received but nothing changed. The Employer was constantly putting pressure on him and they forced him to work faster. The Respondent with cooperation with the Employer sent other employees as a spy (even to the toilet) to watch how he worked, he referred to meeting statements as well as Respondent “trainers” opinions. The Complainant stated he always did his best and he appealed a lot of times to his employer to start caring about Health and Safety levels on-site and stop harassing people who work according the training given. He stated that unfortunately, all his advice and requests were ignored. The Complainant stated that working in accordance to the rules, it was impossible to compete with employees who broke these Health and Safety rules. The Complainant stated that the Employer could freely manipulate the performance of an individual, in different ways such as rotation at different positions during the day, adding extra time in the system (delay-time), heavy or light orders, assign one (light, easy) shop. The Complainant stated that when he started the job in 2008 he was not expected to reach the expected target of 84% of performance as there were much less cases to pick per hour. The Employer had increased the average number of cases. As he knew, the difference between years 2007 and 2018 was around 25%. He asked many times how many cases he picked per hour (average) in 2008 (his first year with the Company). They never gave him an answer. The Complainant stated that for a long time, there was a hunt against him as he became the last employee working for an agency with an older better paid contract. They punished him for worse performance on FLT (Reach Truck). He was getting more hours on assembly. It was repeated many times. The Complainant stated that the Respondent counted him for every second of work. They didn’t care if somebody needed to rest, go to the toilet, drink some water or even book a holiday or arrange anything with the Line Manager. Everything was impacting on individual performance. The Complainant stated he was punished for sickness, certified by a doctor (warnings and unpaid suspension) and was discriminated against in terms of job rotation – he spent most of his hours on the hardest work among people who had the same skills as himself. The Complainant stated he requested many times how many Kgs he was picking daily. He never got an answer. The Complainant stated the Respondent was forcing him to lift empty pallets by hand, to save time and make better performance, which was not allowed before and he stated that other managers confirmed this, and it was against the Forklift Reach Truck Training given and doing this may lead to increased risk of injury. Risk should be minimalized by using the right equipment such as FLT. The Complainant gave additional information in the form of his contract of employment, and he referred to what he stated was an important meeting statement dated 2 November 2018, employer’s “trainers” feedbacks about his work and all others meeting statements and notes. The Complainant confirmed he had witnesses who would confirm all his words; colleagues A, B & C and supplied Declaration of witnesses. The Complainant stated in reference to a representative at the disciplinary meetings that he didn’t get this opportunity every time to have his chosen representative as the Employer said they wanted non-company employee v’s employer representative. He said this was new employer term. The Complainant stated he could not meet his targets without breaking Health and Safety rules. Since his employment ceased the Complainant was doing online shopping role as a hobby with a non-profit. He was unemployed for 7 months. He went for jobs and courses during this time and is employed for 3 months on €1 less than he was paid. The Complainant stated the volume of work he had to do increased during his service with the Employer. He stated he could not compete with fellow employees who breached the Health and Safety rules and he often raised this with his Manager.

Summary of Respondent’s Case:

The...