PTD132

The Facts

The Complainant applied for and secured a two-year Personalised Hours contract in August 2008, for the period 11 August 2008 to 11 August 2010. At the request of the Complainant the Bank renewed the contract for a further two years concluding on 10 August 2012. During this latter period the Bank introduced a voluntary early retirement scheme that was opened up to applications in 2012. The Complainant applied to participate in the scheme. Her application was not successful.

The Complainant made an application to the Bank on 19April 2012 to extend her personalised hours contract for a further period. A meeting took place on 4 May 2012 at which the Bank says the Complainant was told her application was refused. The Complainant states that she was not so advised at that meeting. The Bank submitted an internal memo of the meeting that it states records the fact that the Complainant was advised that her application was refused. The Complainant states that she had never seen the memo in that form and that the document before the Court was not the document presented to her for co-signing at the meeting on 4 May 2012. She further stated that it did not accurately record what transpired at the meeting.

On 29 June 2012 the Bank wrote to the Complainant confirming that her Personalised Hours contract would expire on 10 August and that she should report for full time duties with effect from 11 August 2012. She states that she did not receive this letter until she returned from annual leave on 16 July 2012. She states that this left her very little time to raise a grievance regarding the manner in which the matter was being handled by the Bank. She states that she appealed against that decision six working days later on 24 July.

She states that she pursued the matter through the formal grievance procedure. She states that matter was not resolved at stage one or two of the procedures. She states that at stage 3 of the procedures she sought the Bank’s permission to be represented by a family friend. The Bank agreed that the person could accompany her to the meeting but could not represent her. She states that this deprived her of the opportunity to effectively present her case to the Bank.

The Bank states that the procedures provide for representation by a colleague or by a trade union or with the prior consent of the Bank, another appropriate person. Both parties agree that the Bank’s procedures in this regard comply with S.I. 146/2000. The Complainant makes other criticisms of the Bank’s grievance procedures that she maintains are not in line with best practice. The Bank denies this.

The Complainant submitted a complaint to the Rights Commissioner under Section 16(1) of the Act alleging that she had been penalised by the Bank contrary to Section 15(1) of the Act. The Bank rejects the Complaint.

The Rights Commissioner found that the complaint was not well founded. The Complainant appealed against that decision to the Labour Court.

The Law

Section 9 of the Act states

Section 9 states

9.—(1)Subject tosubsections (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

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

(3)Nothing insubsection (2)shall be construed as affecting the application of a relevant enactment, by virtue ofsection 8, to a part-time employee.

(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-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.

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

Section 15(2) defines penalisation in the following terms

(2)For the purposes of thissection, 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 insubsection (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 whichsection 20 (2)applies.

Section 15 of the Act states

• • • • 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-time work to performing part-time work, or
        • • • • (ii) part-time work to performing full-time work,
        • • • 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 1993 , 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-time work” means work which, if it were performed, would result in the person performing it being regarded as a full-time employee for the purposes of this Act ;
              “part-time work” has the same meaning as it has in section 13 .

The Complainant submits that the Respondent infringed section 15(1)(a) of the Act

For a complaint to succeed under this section the Complainant must satisfy the Court that she invoked a right to be treated, in respect of her conditions of employment, in a manner provided for by Part 2 of the Act and that but for having so invoked such a right, she would not have suffered the penalisation imposed on her by the Bank.

Section 9 of the Act sets out the principal rights conferred on a part-time worker by the Act

In this case the Complainant states that the Personalised Hours scheme provides that an application for an extension to a personalised hour’s contract must be made no later than six months before the current contract expires. The Complainant states that she made an application for an extension of the Personalised Hours Contract to the Bank on 19 April 2012. The contract was due to expire on 11 August 2012. The application therefore was submitted to the Bank after the six month deadline had passed and accordingly outside of the terms of the scheme.

She states that the Bank failed to advise her three months before the end of her personalised hours contract that it had rejected the application for an extension she had submitted. She rejects the Banks contention that it notified her verbally on 4 May 2012 that her application had been rejected. She states that the document she co-signed was subsequently altered and presented to her in a revised form when the case came on for hearing before the Rights Commissioner. The bank asserts that the document was not altered and was presented to the Rights Commissioner as co-signed by the Complainant.

The Court finds that nothing turns on this point. The application for an extension had been made after the deadline set out in the scheme had expired. Accordingly management was not, under the terms of the scheme, required to consider it within any time limit or at all. In the event management wrote to the Complainant on 29 June confirming that the Complainant’s personalised hour’s contract expired in August and that she was required to return to full time working. The Complainant submits that she did not receive this letter until 26 July 2012 after she returned from annual leave. For the reasons stated above the Court takes the view that neither side was operating within the terms of the scheme and accordingly the strict time limits set out in the scheme do not bind either of them.

The Complainant does not dispute that management was entitled terminate her personalised hour’s contract and require her to return to full time working. She confirmed to the Court that she did not contest this right or refuse to return to full time working. Instead she sought to pursue a grievance through the grievance procedure seeking to secure a further extension to her personalised hour’s arrangements

More importantly for the Complainant to make out a complaint under Section 15(1) she must identify the act of penalisation she suffered for having undertaken a protected Act. In this case the Complainant has not identified a protected act nor has she identified a detriment she suffered by way of penalisation within the meaning of the Act.

There is no suggestion from the Complainant that she would have been treated differently by the Respondent had she not made an application for an extension to her personalised hour’s contract. Her complaint relates to the manner in which her belated application was dealt with. Neither has the Complainant identified an act of penalisation she suffered. The Complainant stated to the Court that she did not refuse to return to full time working. Instead she stated that she wished to continue working reduced hours but recognised management’s rights under the scheme to decline her request to extend the personalised hours contract.

The Complainant withdrew her complaint that the Respondent’s refusal to allow her participate in the voluntary early retirement scheme amounted to a breach of Section 15 of the Act or constituted penalisation.

In those circumstances the Court finds that the Complainant has failed to make out a complaint under section 15 of the Act. She has failed to identify a protected act or to identify a disadvantage she suffered as a result of undertaking a protected act.

Accordingly the Court finds that the complaint is not well founded.

Determination:

The Complaint is not well founded. The appeal is not allowed.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
13th December, 2013.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.