PTD128

The case came on for hearing before this Court on Tuesday 8^thAugust 2012.

Background

The Complainant worked for the Respondent as a full time “Payroll Assistant” between November 2007 and the 3^rdJanuary 2011 when by agreement she switched to part time work. Her part time hours involved sharing the working week with another employee. She worked a full day on Monday and Tuesday each week. The other employee worked on Wednesday, Thursday and Friday.

Shortly after the Complainant switched to part time working the Respondent secured a substantial contract to supply the HSE with large numbers of agency staff. The Complainant states that her supervisor then approached her and asked her be flexible in the hours she was available for work as the pressure on the payroll department in the commencement phase of the new contract was intense. She says that she told her supervisor that she was available to work flexible hours on Monday and Tuesday but could not work on other days for reasons she outlined to the supervisor and to the Court. The Respondent states that it understood that she could not work flexible hours at any time during the week.

Within a few days of this conversation taking place the Complainant was transferred out of the payroll department and into a different role in the Accounts Department. The Complainant was assigned to work sending invoices to customers. This largely involved required that she insert invoices into envelopes and post them to customers.

Later in the year that work was automated, the Department was restructured and the Complainant was made redundant. The redundancy was effected in January 2012. The Complainant was paid her statutory redundancy entitlement and, in accordance with the terms of her contract of employment, two month’s pay in lieu of notice

Position of the Parties

The Complainant submits that she was penalised by the Respondent because she could not commit to working as and when required to do so by the Employer. She submits that because of this, she was transferred to another area of the accounts department. She submits that in that department she was underemployed and that this was intentional and a prelude to her dismissal in 2012. She submits that the decision to dismiss her arose directly out of her part time status. She submits that at the time of her dismissal there was work available in the Payroll Department and that she was not offered this work because she worked part time and could not commit to working whatever hours she was assigned by her employer. She submits that this amounts to penalisation within the meaning of Section 15 (1) (c) (ii) and (2) (b) of the Act.

Respondent’s Position

The Respondent submits that the Complainant was, in January 2011, at her own request, facilitated with a transfer to part time work. The Respondent effected this through the introduction a job sharing arrangement with another member of staff. Under the arrangement the Complainant, worked on Monday and Tuesday each week. The other job sharer worked on Wednesday, Thursday and Friday each week. The arrangement worked well for all parties until March 2011 when the Respondent secured a contract with the HSE to supply it with a large numbers of agency workers. In the early stages of this contract the demands on the payroll department were intense. All staff members were expected to work flexibly to assist the company to meet the demands of this new contract. A commitment to flexible working is a standard term in all contracts of employment with the Company.

The Complainant told her supervisor that she could not work outside her set hours on Monday and Tuesday and could not work on any other day of the week. This inflexibility was inconsistent with the Complainant’s contractual commitments and did not meet the Company’s needs in the payroll department at that time. Accordingly the Complainant was moved to other work in the Accounts Department. This move was agreed between the complainant and her manager. In due course the work to which the Complainant was transferred was automated, the department was restructured and the Complainant made redundant.

The Respondent submits that no breach of the Act occurred.

The Respondent notes that the complaint to the Rights Commissioner was made after the Complainant was made redundant in January 2012 some nine months after she was transferred to the Accounts Department. The Act provides that a Rights Commissioner cannot entertain a complaint unless it is made within six months of the date on which the impugned incident took place. The Respondent notes that the complainant was transferred out of the payroll department more than six months before the complaint was made to the Rights Commissioner.

The Respondent notes that the Complainant did not make an application to the Court for an extension of time under Section 16(4) of the Act.

Accordingly the Respondent submits that complaint regarding the Complainant’s transfer out of the payroll department is statute barred and the Court does not have jurisdiction to entertain it The Respondent further submits that, should an application for an extension of time be made by the Complainant, no valid grounds for such an extension of time have been advanced by the Complainant. The Respondent refers the tests for the granting of an extension of time set out by this Court in Cementation Skanska and Tom Carroll DWT0338, 28 October 2003.

The Respondent further submits that it never sought to transfer the Complainant from part time work to full time work within the meaning of 15(1) ( c ) (ii) of the Act.

Findings of the Court

The relevant law regarding the treatment of part time workers is set out in Directive 97/81/EC which the Act transposes into Irish Law. The relevant provisions of the Directive and the Act are set out below.

The Directive

The purpose of the Directive is set out in the following terms

• Clause 1: Purpose
  
  The purpose of this Framework Agreement is:
  
  • (a)to provide for the removal of discrimination against part-time workers and to improve the quality of parttime work;(b)to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organisation of working time in a manner which takes into account the needs of employers and workers

• Clause 4: Principle of non-discrimination
  

  • In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds.
    
    2. Where appropriate, the principle of pro rata temporis shall apply.
    
    
    3. The arrangements for the application of this clause shall be defined by the Member States and/or social partners, having regard to European legislation, national law, collective agreements and practice.
    
    4. Where justified by objective reasons, Member States after consultation of the social partners in accordance with national law, collective agreements or practice and/or social partners may, where appropriate, make access to particular conditions of employment subject to a period of service, time worked or earnings qualification. Qualifications relating to access by part-time workers to particular conditions of employment should be reviewed periodically having regard to the principle of non-discrimination as expressed in Clause 4.1.

The Protection of Employees (Part Time Work) Act 2001 gives effect to Directive97/81/EC of 15 December, 1997in this jurisdiction.

The long title sets out the purpose of the Act in the following terms

• An Act to provide for the implementation of Directive of the Council of the European Communities concerning the framework agreement on part-timework concluded by UNICE, CEEP and the ETUC [O.J. No. L14, 20.1.1998, p. 9]

Section 9 of the Act seeks to give effect to the principle of Non Discrimination set out in Clause 4 of the Directive.

• • 9.Conditions of employment for part-time employees
    • 
      
      (1) Subject to subsections (2) and (4) and section 11(2) , a part-timeemployee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-timeemployee.

      (2) Without prejudice to section 11(2) , if treating a part-timeemployee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-timeemployee can be justified on objective grounds then that employee may, notwithstanding subsection (1) , be so treated.

      (3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-timeemployee.

      (4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-timeemployee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-timeemployee.

      (5) For the avoidance of doubt, the reference in this section to a comparable full-timeemployee is a reference to such an employee either of the opposite sex to the part-timeemployee concerned or of the same sex as him or her.

    
    

  Section 12 of the Act sets the meaning to be ascribed to the term objective grounds referred to in Section 9(2) of the Act

  • 
    12.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a part-timeemployee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.
    • 
      (2) For the avoidance of doubt, a ground which does not constitute an objective ground for the purposes of section 9(2) may be capable of constituting an objective ground for the purposes of section 11(2) .

• 
  Section 15 of the Act prohibits penalisation of an employee by an employer for seeking to enforce their rights under the Act
  • 
    Prohibition of penalisation of employee by employer

    15.(1) An employer shall not penalise an employee—

    • (a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part, or

      (b) for having in good faith opposed by lawful means an act which is unlawful under this Act, or

      (c) for refusing to accede to a request by the employer to transfer from performing—

      • • (i) full-timework to performing part-timework, or

          (ii) part-timework to performing full-timework,

        
        
        or
      
      (d) for giving evidence in any proceedings under this Act or giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a), (b) or (c) .
    • (2) For the purposes of this section, an employee is penalised if he or she—
      • (a) is dismissed, suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

        (b) is the subject of any other action prejudicial to his or her employment, but, where any such action with regard to the employee is in respect of the matter referred to in subsection (1)(c) , that action shall not constitute a penalisation of the employee if both of the following conditions are complied with—

        • (i) having regard to all the circumstances, there were substantial grounds both to justify the employer's making the request concerned and the employer's taking that action consequent on the employee's refusal, and

          (ii) the taking of that action is in accordance with the employee's contract of employment and the provisions of any other enactment of the kind to which section 20(2) applies.

      (3) If a penalisation of an employee, in contravention of subsection (1) , constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to [2007] , relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

      (4) In this section—

      • “full-timework” means work which, if it were performed, would result in the person performing it being regarded as a full-timeemployee for the purposes of this Act ;
        • “part-timework” has the same meaning as it has in section 13 .

• 
  Section 16 sets out the manner in which a complaint may be made under the Act
  • 
    16 (1) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee's employer has contravened section 9 or 15 in relation to the employee and, if the employee or such a trade union does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

    (2) A decision of a rights commissioner under subsection (1) shall do one or more of the following—

    • • (a) declare that the complaint was or, as the case may be, was not well founded,

        (b) require the employer to comply with the relevant provision,

        (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment,

      
      
      and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.
    
    (3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier.

    (4) Notwithstanding subsection (3) , a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (3) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

    (5) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified fromtimetotimeby the Minister.

    (6) A copy of a notice under subsection (5) shall be given to the other party concerned by the rights commissioner concerned.

    (7) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.

    (8) A rights commissioner shall furnish the Labour Court with a copy of each decision given by the commissioner under subsection (1) .

Section 17 provides for an appeal against a decision of a Rights Commissioner to the Labour Court.

• Appeals from and enforcement of decisions of rights commissioner
  • 
    17 (1) A party concerned may appeal to the Labour Court from a decision of a rights commissioner under section 16 and, if the party does so, the Labour Court shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, shall make a determination in writing in relation to the appeal affirming, varying or setting aside the decision and shall communicate the determination to the parties.

    (2) An appeal under this section shall be initiated by the party concerned giving, within 6 weeks of the date on which the decision to which it relates was communicated to the party, a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court under subsection (4) and stating the intention of the party concerned to appeal against the decision.

Preliminary Issue – Time Limits

Section 16(1) of the Act provides

• 16 (1) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee's employer has contravened section 9 or 15 in relation to the employee and, if the employee or such a trade union does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

• (3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier

• (4) Notwithstanding subsection (3) , a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (3) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

The Respondent submits that the redundancy itself amounts to an act of victimisation and that time runs from the date of victimisation. She submits that the complaint is in time and the Court has jurisdiction.

Findings of the Court

The Court finds that time runs from the date of the latest alleged act of penalisation that in this case occurred within six months of the date on which the complaint was submitted to the Rights Commissioner.

Determination

The Court determines that the Complaint is in time and is properly before the Court.

Substantive Issue

The complaint before the Court is very precise. The complaint is that the Respondent acted in a manner that is contrary to the provisions of Section 15(1)(c) of the Act.

Section 15 (1) ( c) provides

• 15.(1) An employer shall not penalise an employee—
  • (c) for refusing to accede to a request by the employer to transfer from performing—
    • (i) full-timework to performing part-timework, or

      (ii) part-timework to performing full-timework,

In order for the Complainant’s case to succeed under the Section 15 (1)(c)(ii) of the Act she must show that she refused to accede to a request by her employer to transfer from performing part-time work to performing full-time work. On the face of it no such request was made. The Complainant was asked to be flexible with regard to the hours and days on which she worked. The question for the Court to determine is whether this amounts to a request from her employer to transfer from performing part-time work to performing full-time work within the statutory meaning of those terms.

The Complainant, by agreement with the Respondent, changed from working a standard five day week to working two days each week. The balance of the week was worked by her job sharing partner. This worked well for several months. Thereafter the Respondent secured a contract with the HSE to provide it with large numbers of agency staff. This placed significant pressure on the payroll department to ensure that all of those involved had their hours properly recorded and were paid on time each week. The payroll is run on Wednesday each week. It was critical therefore that all the hours, worked in the previous week by the agency staff, were entered into the payroll system by Tuesday evening to enable the payroll program be run on Wednesday morning.

The Complainant submits that she was available to work late on Monday and Tuesday but could not work on other days. The Respondent submits that she did not so advise her supervisor. It submits that she was not available to work other than standard hours on Monday and Tuesday and that this did not meet the new demands placed on the payroll department. It submits that it needed all staff in the payroll department to be flexible to ensure that the large numbers involved were paid correctly and on time and that the HSE was billed accordingly. It submits that it was for this reason that the Complainant was transferred out of the payroll department.

The question for the Court therefore is whether the Respondent’s requirement that the Complainant be available to undertake flexible working amounts to a request to transfer from part time to full time work.

It was a condition of the Complainant’s contract of employment that she was available to work flexibly. She says that she met that condition by being available to work late on Monday and Tuesday evening. The Respondent says that it was unaware that she was so available. The Court accepts the Complainant’s statements in this regard and finds that she did so inform the Respondent that she was available to work late on Monday and Tuesday evening.

The Respondent did not tell the Court whether such a level of availability would have been sufficient to meet its needs as it did not know what it required of the Complainant.

It is common case that the other job sharer was available to work flexibly on the days on which she was employed. Accordingly the Court finds that the flexibility exhibited by the combined job sharers was of equal measure to that shown by any other employee who was employed on a full time basis.

In all the circumstances therefore the Court finds that the Respondent formed the view that the Complainant should have been available to work on days other than those on which she was rostered to work. When she was not available to do so the Respondent transferred her out of the payroll department.

However the Court finds that inquiring of the Complainant if she was available to work on days other than those upon which she was rostered to do so does not amount to a request that she transfer from performing “part-timework to performing full-timework,”within the meaning of Section 15(1)(c) of the Act.

The subsequent decision to transfer the Complainant out of the payroll department appears to have been petty, surreptitious and arbitrary. The Court finds that she was under-employed in the accounts department and her redundancy was the direct result of her inability to work on her rostered days off.

However that is not the complaint she made to the Court. She complained that she was penalised because she rejected a request that she transfer from “performing part-time work to performing full-time work.” As the complaint is specific so also must the finding of the Court be in this case.

Accordingly the Court finds that the Complainant was not requested to transfer from working part-time to working full-time and accordingly could not have been penalised for refusing a request that was not made of her.

The Court finds that the Complaint before it is not well founded.

Determination

The Court determines that the Complaint before it is not well founded. The appeal is rejected.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
7th September 2012______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.