ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001410

Complaints for Resolution:

Background

The Complainant has been employed as a Junior Trainee Manager since 30^th August 2010. He is paid €22,000 per annum. He has claimed that he was penalised under the Safety, Health & Welfare at Work Act and Organisation of Working Time Act and also he did not get his entitlements to Public Holidays and he should have been paid 25 % of his wages when he was not allowed to return to work.

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

Date of Adjudication Hearing: 18/04/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under Section 28 of the Safety, Health & Welfare at Work Act, 2005 and under section 27 of the Organisation of Working Time Act, 1997 and 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 has been employed as a Junior Trainee Manager since 30^th August 2010. He is paid €22,000 per annum. He has claimed that he was penalised under the Safety Health & Welfare at Work Act and Organisation of Working Time Act and also he did not get his entitlements to Public Holidays and he should have been paid 25% of his wages when he was not allowed to return to work.

Complainant’s Submission and Presentation:

Complaints against Respondent (1)CA-1997 001/002/003/004

The Complainant stated that he had an accident on 3^rd May 2015. On 12^th October 2015 his GP certified him fit for work but this was not sent in to the company. On 14^th October 2015 he contacted the Respondent about returning to work. On 10^th November 2015 he was assessed by Occupational Health and certified as unfit for 4/6 weeks. On 24^th December he phoned the Respondent asking when he could return to work. On 20^th January Occupational Health certified him fit to return to work on a phased basis. On 24^th February 2016 he returned to work on a 3 days per week basis. This then increased to 4 days per week and as from 18^th April 2016 he returned full time.

CA 1997 - 001, Penalisation under Safety Health & Welfare at Work Act

He has claimed that he was penalised under this Act because he had an accident at work and was not allowed to return to work. He has sought compensation.

CA 1997 – 002, Penalisation under the Organisation of Working Time Act

He has claimed penalisation under this Act because he made a complaint in respect of Public Holidays. He has sought compensation.

CA 1997 – 003, Breach of Sec 18 Zero Hours under the Organisation of Working Time Act

He has claimed that he should have received 25% of his wages amounting to 12 hours pay per week when the Respondent didn’t let him return to work for the period 24^th December 2015 to 12^th January 2016 based on his salary of €22,000 per annum.

CA 1997 004, Breach of Sec 21 Public Holidays under the Organisation of Working Time Act

He has claimed that he was not properly compensated for the Public Holidays while he was out on sick leave.

Respondent’s Submission and Presentation:

The Respondent stated that on 14^th October 2015 the Complainant phoned work and advised that he was fit to return to work. The Respondent arranged for a medical assessment by the company doctor. This assessment took place on 10^th November 2015 and he was certified unfit for work. On 24^th December 2015 the Complainant sent an e-mail to Head Office instead of his place of work site requesting to return to work. The e-mail did not provide a fitness to work certificate. As he had not supplied a fitness to work certificate as requested the Respondent arranged for another assessment by the company doctor on 26^th January 2016.The report was issued on 5^th February 2016 which provided for a return to work on a phased basis. This was then implemented.

CA 1997 - 001 Penalisation under Safety, Health & Welfare at Work Act

He was not penalised under this Act by not permitting him to return to work. They waited for him to be medically certified fit for work. This claim is rejected.

CA 1997 – 002, Penalisation under the Organisation of Working Time Act

He was not penalised by the Respondent for bringing a claim under this Act. He was only allowed to return to work when he was certified fit to return. This claim is rejected.

CA 1997 – 003, Breach of Sec 18 Zero Hours under the Organisation of Working Time Act

They stated that the Complainant has failed to particularise this complaint. The Complainant must adduce evidence to support a stateable case of non-compliance with sufficient particularity to ensure that the Respondent knows the nature of the complaint.

He has never been on a zero hours’ contract. He holds a full time contract. He was not given work because he was medically certified as unfit to work. The claim is rejected.

CA 1997 004, Breach of Sec 21 Public Holidays under the Organisation of Working Time Act

They stated that the Complainant has failed to particularise this complaint. The Complainant must adduce evidence to support a stateable case of non-compliance with sufficient particularity to ensure that the Respondent knows the nature of the complaint.

Notwithstanding this the Respondent states that he received compensation for 8 Public Holidays instead of 5 that he was due. A detailed payslip showing a payment of 64 hours (8 X 8 hours) was provided at the hearing. The claim is rejected.

Findings

CA 1997 - 001 Penalisation under Safety, Health & Welfare at Work Act

I find that the Complainant was not allowed to return because he was medically certified as being unfit for work.

Sec 27 of this Act states, “In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. (2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

Therefore I find that penalisation can only be established if conduct or omissions which are included in the statutory meaning of the term penalisation arise and as a consequence of an act protected in subsection 3 and but for the protected acts of subsection 3 the complainant would not have suffered the detriment complained of.

There is no evidence of any kind to establish any causal connection between the alleged omissions relied upon and any act on the part of the Complainant of a type referred to at subsection (3). The Complainant ignores the plain meaning of Sec 27 when read as a whole.

I find that this complaint is entirely misconceived.

CA 1997 - 002 Penalisation under the Organisation of Working Time Act

I find that the Complainant was not allowed to return because he was medically certified as being unfit for work.

There was an onus upon the Complainant to show that having made a complaint regarding Public Holidays the Respondent retaliated by refusing him to return to work.

No evidence has been submitted to support the complaint that he was refused work because he submitted a complaint concerning Public Holidays. He was not allowed to return to work until he was medically certified to do so.

I find that this complaint is entirely misconceived.

CA 1997 – 003, Breach of Sec 18 Zero Hours under the Organisation of Working Time Act

I find that the Complaint was employed on a full time contract as a Junior Trainee Manager.

I find that he was not on a zero hours’ contract. He was not on an “if and when” availability.

I find that this complaint is entirely misconceived.

CA 1997 004, Breach of Sec 21 Public Holidays under the Organisation of Working Time Act

I note the Respondent’s evidence that he received compensation for 8 Public Holidays.

Therefore I find that this complaint fails.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and under Section 28 of the Safety, Health & Welfare at Work Act, 2005 and under section 27 of the Organisation of Working Time Act, 1997 requires that I make decisions in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the above complaints were without merit, are not well founded and so they all fail.

Complaints against Respondent (2) CA 2001 – 001 / 002 / 003 / 004

Jurisdictional Point

The Respondent advised the hearing that the Complainant was employed by Respondent (2) until 31^st January 2015 when the business transferred under a transfer of undertakings to Respondent (1). Respondent (2) is not the employer.

Therefore this claim is misconceived and should be struck out.

The Complainant’s representative stated that due to the lack of clarity and using any and all information available her client was of the view that Respondent (2) was his employer.

Findings

I note the evidence before this hearing.

I find that the Complainant was employed by Respondent (2) until 31st January 2015 when the business transferred under a transfer of undertakings to Respondent (1).

Therefore in respect of these current claims I find that Respondent (2) is not the employer.

Therefore I must find that this claim is misconceived.

Decision

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act and under section 27 of the Organisation of Working Time Act, 1997 and under Section 28 of the Safety, Health & Welfare at Work Act, 2005.

I have decided that I do not have the jurisdiction to strike out the claim.

Therefore I have decided that this claim is misconceived.

I declare that the complaint is not well founded.

Complaints against (Respondent 3) CA 2097 -001

Jurisdictional Point

The Respondent’s Representative advised the hearing that the Complainant was never employed by Respondent (3). Respondent (3) is employed as the Manager. His employer was Respondent (2) until 31^st January 2015 and then it was Respondent (1).

Therefore this claim is misconceived and should be struck out.

The Complainant’s representative stated that due to the lack of clarity and using any and all information available her client was of the view that Respondent (3) was his employer.

Findings

I note the evidence before this hearing.

I find that the Complainant was employed by Respondent (2) until 31st January 2015 when the business transferred under a transfer of undertakings to Respondent (1).

Therefore in respect of these current claims I find that Respondent (3) is not the employer.

Therefore I must find that this claim is misconceived.

Decision

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act and under section 27 of the Organisation of Working Time Act, 1997 and under Section 28 of the Safety, Health & Welfare at Work Act, 2005.

I have decided that I do not have the jurisdiction to strike out the claim.

Therefore I have decided that this claim is misconceived.

I declare that the complaint is not well founded.

Dated:   28^th September 2016