ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000639

Complaints for Resolution:

Venue: Tom Johnson House, Haddington Rd, Dublin 4.

Date of Adjudication Hearing: 05/05/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977 and under section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background

The Complainant was employed as a Kitchen Porter/Cleaner from 20^th April 2013 to 30^th June 2015. He worked full time and was paid €9.50 per hour. He has claimed that he did not get breaks and rest periods, he was not notified of changes to his roster within 24 hours. He has sought compensation.

1) Organisation of Working Time Act     CA-00000673-001/2/3/4/5

Request to extend the time limit

Complainant

The Complainant had virtually no English. He was in a vulnerable position. He did not have the ability to advocate for himself due to his language difficulties. He is seeking that the period of 7^th November 2014 to 6^th November 2015.

Respondent

They stated that two employees used to act as informal interpreters. Half of the employees on site were Polish. The Supervisor, Kitchen Manager, Chef and Restaurant Manager were all Polish. During the course of his employment he brought numerous grievances. He sought an increase in hours of work and in pay. The extension should not be granted.

Decision

Sec 27 (4) of this Act states, “A rights commissioner shall not entertain a complaint under this section if it is presented to the commission after the expiration of the period of 6 months beginning on the date of the date of the contravention to which the complaint relates”

Sec 27 (5) states,” Notwithstanding subsection (4) a rights commissioner may entertain a complaint under this section presented to him on or after the expiration of the period referred to in sub section (4) (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 Labour Court in the Cementation Skanska V Carroll DWT00338 (WTC0333) stated, “ in considering if reasonable cause exists it is for the complainantto show that there are reasons which both explains the delay and afford an excuse for the delay…In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and the circumstances known to the complainant at the material time”

I have considered the application to extend the time limit. I find that the reasons set out by the Complainant, which were his inability to speak English, were clearly rebuffed by the Respondent in a very convincing manner.

I find no basis to extend the time limit.

This complaint was presented to the Commission on 6^th November 2015 therefore the period that may be investigated is 7^th May 2015 to 30^th June 2015 the date of termination of employment.

Complainant’s Submission and Presentation:

(1)Sec 11- 11 hour rest between shift end and start

He stated that he finished his shift at 12.00/ 1.00am and restarted at 10.00am with the consequence that less than 11 hours lapse between shifts in a 24 hour period and this amounts to a breach of section 11. This often happened but he cannot substantiate his complaint.

Records were requested but were not forthcoming.

(2)Sec 12 - Breaks

Rest breaks within the meaning of Section 12 have been denied to the claimant. It is alleged that the claimant routinely would receive no rest break during his shift and on other occasions, he has an opportunity to avail of a 15 minute break, but that this is the extent of his breaks at work, and he never received in excess of a 15 minute rest break. Records were requested but were not forthcoming. (3) Sec 13 Rest periods

Rest breaks within the meaning of Section 13 have been denied to the claimant. It is alleged that the claimant routinely will work on each day over the course of a seven day period, and that he has in the past worked up to 15 days without receiving a weekly rest break. Records were requested but were not forthcoming..(4)Sec 15 working in excess of 48 hours. This complaint was withdrawn

(5) Sec 17 - Notification of change of hours The Employee has routinely been instructed with no notice to perform additional duties or overtime, and accordingly alleges that section 17(2) of the Act has been breached by the Employer on a day to day basis. Records were requested but were not forthcoming. Respondent’s Submission and Presentation They stated that there was a staggering lack of specificity regarding these claims.

(1) Sec 11 Rest periods An examination of the records shows that there were three occasions when he did not receive an 11 hour rest between shifts. On 1st May 2015 he finished at 12.15am and restarted at 11.00am so it was 15 minutes short of 11 hours. On 12th June 2015 he finished at 12.30am and restated at 10.00am so there was a short fall of 90 minutes in 11 hours. On 18th June 2015 he finished at 12.30am and restarted at 10.00 so a shirt fall of 90 minutes in 11 hours.

(2) Sec 12 breaks There were no specifics in this claim. Employee records are not available for short breaks He took regular smoke breaks and he was facilitated with this. There are no formal breaks rostered but they are given as business allows. He was spoken to regularly about not taking food breaks but he preferred smoke breaks. Taking an aggregate of the smoke breaks he exceeded his statutory entitlements.

(3) Sec 13 Rest periods He regularly requested to work more hours. On 2/1/2015 he worked 7 days followed by 5 days off. Between 2/1 and 8/1/2015 he worked 7 days followed by 2 days off. On 16/1 to 22/1 he worked 7 days followed by 7 days off.

(4) Sec 14 was withdrawn

(5) Sec 17 Notification of Change of Hours There were occasions when he was asked to work additional hours and by agreement he worked them. He never had to work them against his wishes.

Findings

Lack of specifity in claims

The Labour Court stated, “The evidential burden is on the Claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the Claimant should be required to do so with sufficient particularity as to allow the Respondent to know, in broad terms, the nature of the complaint and the case, which they are expected to meet. But the burden of proof must be applied in a way that conforms to the requirements of natural justice and the right of the Respondent to mount a defence. This suggests that, at a minimum, the Respondent must know, with reasonable clarity, what it is expected to rebut. (LCR DWT 1117 Jakonis Antanas v Nolan Transport).

I found that the Complainant failed to particularise these complaints and one wonders how he in the first instance formed the view that the Respondent had broken the law.

(1)Sec-11-Rest-periods I note that it is accepted by the Respondent that in the allowable period there were 3 occasions when the Respondent breached Sec 11 of this Act. I find in fact that the alleged breach on 1st May 2015 was outside the time limit allowed. Therefore I find that there were 2 breaches. I find that the Respondent has breached Sec 11 of this Act.

I find that compensation of €150 is warranted.

2) Sec 12 breaks

I note that the Respondent accepted that there were no rostered breaks provided. I note the conflict of evidence in this case. On the balance of probability and in the absence of records from the Respondent I find that then have breached Sec 12. However I conclude that the Complainant has exaggerated his complaint.

I find that compensation of €200 is warranted.

(3) Sec 13 - 24 Hour Rest periods

Based on the Respondent’s records I find that on the instances that referred to above where he worked 7 days he was given compensatory breaks, which is acceptable. I find that the Respondent has not breached this section of the Act.

4) Sec 14 was withdrawn

(5) Sec 17 Notification of Change of Hours

I note the conflict of evidence in this matter. I find the Respondent’s evidence more convincing. On the balance of probability |I find that the Complainant was not asked to work any additional hours that he did not agree to. I find that this part of the complaint fails.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and Under section 27 of the Organisation of Working Time Act, 1997 they require that I make a decision in relation to the complaints.

As per Sec 27 (3) (a) I have decided that the complaint was well founded in part only.

As per Sec 27 (3) (c) I require the Respondent to pay the Complainant compensation of €350 (three hundred and fifty) within six weeks of the date below.

2) Unfair Dismissals Acts CA-00000673-006

Complainant’s Submission and Presentation:

The Employee herein felt compelled to leave his employment as a result of deplorable and exploitative working conditions. The claimant has extremely limited English and to this extent has found himself in a vulnerable position. He has found that the Organisation of Working Times Acts have been serious breached over a protracted period of time, resulting in him being physically exhausted and being deprived of a decent quality of lift. He has been required to lift stock and heavy goods such as deep-freezers over the course of long working days, and has not had health and safety training, and feels that the employer has had no regard for his wellbeing. This employee is in an especially vulnerable situation due to his level of English, and his lack of ability to advocate for himself, and had in the context been left with no option other than to withdraw from his employment with the Employer. He accepts that he did not raise a grievance concerning the matters that he states led to his resignation while inn his employment. He did not advise his employer that he has contemplating resignation. He accepts that there is a grievance procedure however he did not get a copy of the staff handbook. The Respondent did not call him in to a meeting after he resigned.

He has sought compensation. He has looked for work but has not found a job since

Respondent’s Submission and Presentation

They stated that this was a baseless complaint. No reasons were given to justify the resignation. There was no effort to bring about a resolution to his grievance. There is an imperative to exhaust the internal procedures. He received a copy of the staff handbook, which explained what he needed to do. He had no difficulty in the past in communicating his issues to his colleagues of which 50 % were Polish. He had raised issues in the past and had sought and achieved pay increases. He did not engage with any member of management. He left abruptly without notice. The alleged breaches of the Organisation of Working Time Act were technical breaches only.

There has to be a breach of contract so fundamental that he had no option but to leave. This was not the case. There was no unreasonableness that made him walk off the job. A retrospective effort to cobble together a claim doesn’t entitle him to walk off the job. His e-mail of resignation was not inviting a response and he walked off the job. This claim is rejected.

Findings

I find that in a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition there must have to be something wrong with the employer’s conduct.

Tierney v DER Ireland Ltd UD866/1999 stated, “central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.

The EAT case John Travers v MBNA Ireland Ltd [UD720/2006] stated, “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84)

i) the onus is on the claimant to prove his case,

ii) the test for the claimant is whether it was reasonable for him to terminate his contract”.

The EAT in Donnegan Vs Co Limerick VEC UD828/2011 stated, “In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace”. Also the respondent’s conduct was“not so unfair or so damaging to the claimant’s rights and entitlements that she hid no option but to resign her position”

In this case the Complainant has based his reasons for resigning on the alleged breaches of the Organisation of Working Time Act. I refer to the previous decision above where I found minimal breaches.

I find that he cannot rely upon his inability to speak English when more that 50 % of staff and management were Polish.

I also find that he had raised grievances in the past and so I must conclude that he was aware of how to do so in this situation, which should have been more serious.

I find that on this occasion he failed to do so.

I find that he failed to utilise the grievance procedure.

I find that he did not make his employer aware of any concerns so he denied them the opportunity to address his alleged grievances.

I find that he has failed to establish that his employer’s conduct was so unreasonable that he had no option but to resign.

I find that he has failed to establish a claim for constructive dismissal.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act andSection 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the above stated reasons I have decided that this complaint is not well founded and that it fails.

Dated: 29th July 2016