DWT1646

FULL RECOMMENDATION

WTC/16/76

DETERMINATIONNO.DWT1646

r-153902-wt-15/SR

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

FIRST GLASS LIMITED
(REPRESENTED BY ESA CONSULTANTS)

- AND -

ANDRIUS BABIANSKAS
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Ms O'Donnell

SUBJECT:
1. Appeal of Adjudication Officer Decision No. R-153902-WT-15/SR

BACKGROUND:

2. The employee appealed the Adjudicator's Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 1st March 2016. A Labour Court hearing took place on the 8 June 2016. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Andrius Babianskas against the decision of an Adjudication Officer Decision No. r-153902-wt-15/SR, in a claim under the Organisation of Working Time Act 1997 (the Act) alleging penalisation against his former employer, First Glass Limited.

In line with the normal practice of the Court the parties are referred to as they were at first instance. Accordingly, Mr Babianskas is referred to as “the Complainant” and First Glass Limited is referred to as “the Respondent”.

The Complainant was employed by the Respondent as a lorry driver from 4^thSeptember 2005 until 3^rdFebruary 2015 when he was demoted to a position in the factory. His employment ceased in December 2015. He complained that he was penalised by reason of having submitted claims pursuant to the Act in May 2014 and to further similar claims made on 17^thDecember 2014, the subject matters of which are now on appeal to the High Court.

Summary of the Complainant’s Case

Mr. Richard Grogan, Richard Grogan & Associates, Solicitors, on behalf of the Complainant submitted that the Respondent was in breach of Section 26 of the Act in that the following the referral of complaints under the Act the Complainant had his wages reduced and was demoted from Driver to working in the factory.

He referred to a letter dated 30^thJanuary 2015 issued to the Complainant from the Respondent, outlining details of his removal from driving duties and his placement in the factory. Mr Grogan submitted that this letter was a clear reaction to the Complainant having issued complaints under the Act.

Summary of the Respondent’s Position
Mr Joseph L. Bolger, ESA Consultants, on behalf of the Respondent, by oral presentation to the Court denied that there was any connection between the complaints made under the Act and the Complainant’s demotion. He referred to the letter of 30^thJanuary 2015, contained in Mr Grogan’s submission and stated that the reasons for his demotion were clearly outlined in that letter. In referring to the letter, Mr Bolger stated that the reasons that the Complainant was demoted were due to the following:-

(i)the number of complaints made by him regarding the condition of the trucks he was driving which were found to be unfounded;
(ii)his ability to do the job, and
(iii)his management of the trucks.

Evidence

Evidence was given by the Complainant with the assistance of an Interpreter and by a Manager on behalf of the Respondent.

Conclusions of the Court

Section 26 of the Act provides in relevant part:

(1) an employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act.

Penalisation is not defined by the Act. However the term is generally accepted as meaning the imposition on an employee of some detriment in respect to his or her conditions of employment for having asserted a legal right, including the making of a complaint in good faith. Therefore, in order to make out a complaint of penalisation it is necessary for the Complainant to establish a causal link between the claims he made under the Act, which are the subject of an appeal to the High Court and the detriment which he suffered in his employment.

In such circumstances, the Court must decide whether or not the adverse treatment complained of is a reaction to the earlier proceedings taken under the Act. In his evidence to the Court the Complainant seemed confused as to whether his demotion was due to the complaints he made about the condition of his truck or whether it related to the complaints he made under the Act.

The Court notes the following facts, firstly the 30^thJanuary 2015 letter from the Respondent to the Complainant refers to the Complainant having taken“an industrial case against the company”,secondly, contrary to the Respondent’s procedures, no disciplinary meeting or hearing was held with the Complainant about his performance and behaviour prior to the letter of 30^thJanuary 2015 imposing a disciplinary sanction on him. The Court accepts that if there were issues of concern regarding the Complainant’s behaviour, then the Respondent was entitled to address those issues. However, based on the facts outlined to the Court, it has come to the conclusion, as a matter of probability, that the proceedings taken by the Complainant under the Act were an influencing factor in his demotion from driving duties. Accordingly, the Complainant is entitled to succeed in his appeal.

Redress

The Court notes that the Complainant is no longer employed by the Respondent therefore the option to revert him to driving duties is not open to the Court. On that basis, the Court has concluded that the appropriate redress in this case is an award of compensation. In deciding on the appropriate redress to award, the Court is of the view there are a number of mitigating factors which need to be taken into account:-

(i)the letter dated 30^thJanuary 2015 from the Respondent included an offer to the Complainant, which provided him with an opportunity to avoid demotion if he agreed to give a commitment to conduct himself in a professional manner and adhere to proper behaviour. It stated that he was been given“one last opportunity to do so”;
(ii)by letter dated 2^ndFebruary 2015 from the Respondent to the Complainant, it is clear that the Complainant failed to avail of this opportunity having consulted with his solicitor, and
(iii)the Complainant did not appeal the disciplinary sanction imposed to demote him, instead he submitted proceedings alleging penalisation under both the Organisation of Working Time Act, 1997 and under the Safety Health and Welfare Act, 2005 (the latter proceedings were subsequently withdrawn).

Determination

For the reasons set out herein the Court finds that the Complainant’s complaints alleging a contravention of Section 26 of the Act is well-founded and awards the Complainant the sum of €750.00 in compensation. Accordingly, the Complainant’s appeal is allowed and the decision of the Adjudication Officer is overturned.

Signed on behalf of the Labour Court

Caroline Jenkinson
LS______________________
20 June 2016Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.