ADJ-00003839

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003839

Complaints for Resolution:  

Date of Adjudication Hearing: 22/09/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin 

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, 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 with the Respondent since 11^th August 2008. She is paid €13.18 an hour when she is employed as a Chef and paid €11.29 when she works as a catering assistant.

The Complainant referred the following complaints to the Workplace Relations Commission – 

10^th February 2016 – A complaint under the Employment Equality Act, 1998 that the Respondent had discriminated against her on the basis of her gender and race.

17^th February 2016 – A complaint under the Employment Equality Act, 1998 that the Respondent had discriminated against her on the basis of her Gender and Race.

24^th March 2016 – a complaint that the Respondent had breached Sections 20, 21 and 22 of the Organisation of Working Time Act, 1997. A complaint that the Respondent had breached Section 5 of the Terms of Employment (Information) Act, 1994.

15^th June 2016. – A complaint under the Organisation of Working Time Act, 1997 that the Respondent had breached Section 26 of the Act. A complaint under the Industrial Relations Act, 1969.

8^th June 2016 – a complaint under the Organisation of Working Time Act, 1997 that the Respondent had breached Sections 19, 20, 21 and 22 of the Act – a complaint under the Payment of Wages Act, 1991 that the Respondent had breached Section 5 of the Act – a complaint under the Terms of Employment (Information) Act, 1994 that the Respondent had breached Sections 3 and 5 of the Act

16^th June 2016 – A complaint under the Industrial Relations Act, 1969

27^th June 2016. – A complaint under the Terms of Employment (Information) Act, 1994 that the Respondent had breached Section 5 of the Act. A complaint under the Payment of Wages Act, 1991 that the Respondent had breached Section 5 of the Act. A complaint under the Organisation of Working Time Act, 1997 that the Respondent had breached Sections 19, 21 and 22 of the Act.

28^th June 2016 – A complaint under the Payment of Wages Act, 1991 that the Respondent had breached Section 5 of the Act – A complaint under the Organisation of Working Time Act, 1997 that the Respondent had breached Sections 21 and 22 the Act. 

The following complaints were withdrawn at the Hearing 

Terms of Employment (Information) Act 1994. The complaints submitted on 24^th March 2016 and the complaint submitted on 8^th June 2016 alleging the Respondent had breached Section 5 of the Act.

The complaints submitted on 8^th June 2016 and 27^th June 2016 in relation to an alleged breach of Section 5 of the Act in 2012 were withdrawn. 

Payment of Wages Act, 1991. The complaints submitted on 8^th June 2016 and 27^th June 2016 were withdrawn 

Organisation of Working Time Act, 1997. The complaints submitted on 24^th March 2016, 8^th June 2016, 27^th June 2016 in relation to an alleged breach of Sections 21 and 22 of the Act were withdrawn. The complaint alleging a breach of Section 19 of the Act dated 8^th June 2016 and 27^th June 2016 were both withdrawn 

Industrial Relations Act, 1969. The complaint dated 16^th June 2016 was withdrawn. 

Terms of Employment (Information) Act, 1991

Summary of Complainant's Position. 

Complaint dated 27^th June 2016. The Complainant stated that there had been a recent change in the Complainant’s Contract of Employment and she was not notified of a change to the registered address of the Respondent Company. The Complainant’s place of employment was not changed. 

Complaint dated 28^th June 2016. The Complainant stated there was a Transfer of Undertaking in 2012 and she was not notified within the specified period of the Act of the name of the new Employer. 

Summary of Respondent’s Position.

The Complainant was informed by letter dated 10^th October 2012 that following a restructuring within her place of employment her role was confirmed as being twofold that of Catering Assistant and secondly as a Chef. She was informed of her rate of pay as a Catering Assistant and as a Chef 

The Complainant was provided with a written statement of her Terms and Conditions of Employment following the Transfer of Undertaking in 2012 which was issued to the Complainant dated 9^th July 2012 and signed by the Complainant on 15^th July 2012 – copy provided of both the letter and the Terms and Conditions. 

Findings

On the basis of the evidence from both Parties I find there was no evidence presented to support the complaints lodged by the Complainant. Neither did the Complainant or her Representative dispute the evidence of the Respondent. The Complainant was provided with a Contract of Employment dated 9^th July 2012 following the Transfer of Undertaking which the Complainant signed on 15^th July 2012. This specifies the name of the Transferee. 

Decision

CA-00005073-018. In accordance with Section 41 of the Workplace Relations Act 2015 and in view of my findings above I declare the complaint is not well founded. 

CA-00005073-023. In accordance with Section 41 of the Workplace Relations Act and in view of my findings above I declare the complaint is not well founded. 

Payment of Wages Act, 1991

Summary of Complainant’s position.

Complaint of 28^th June 2016. The Complainant stated that the Respondent had made an unlawful deduction from the Complainant’s wages over the last 6 months. 

Summary of Respondent’s Position.

The position of the Respondent was set out in a decision of the Rights Commissioner in r-157170-pw-15 and r-157171-pw-15 and by the Adjudication Officer in ADJ 483 where the Rights Commissioner and the Adjudication Officer found that the reduction in wages resulted from a ballot of both SIPTU and INMO members following a Recommendation from the Labour Court CD/14/363 issued on 6^th January 2015 and accepted following a ballot of the members of both Unions. The Complainant confirmed that she was a member of SIPTU and had voted in the ballot. 
Decision. CA-00005073-021

The reduction in wages resulted from a Collective Agreement between SIPTU, the INMO and the Respondent.

In accordance with Section 41 (4) of the Workplace Relations Act, 2015 I declare the complaint is not well founded. 

Organisation of Working Time Act, 1997

Summary of Complainant’s Position.

Complaint of 14^th March 2016. The Complaint stated she had not received her annual leave entitlements under Section 20 of the Act. 

Complaint dated 28^th June 2016. The Complainant stated she did not receive her Public Holiday entitlements and is claiming a breach of Sections 21 and 22 of the Act. 

Complaint dated 15^th June 2016. The Complainant stated that she was disciplined by the Respondent following a complaint she made in respect of an alleged breach of the Organisation of Working Time Act when she lodged complaints with the WRC in June and July 2015. She alleged this was penalisation under Section 26 of the Act. 

Summary of Respondent’s Position.

Complaint dated 14^th March 2016. The Respondent provided a breakdown of paid annual leave taken by the Complainant in 2015 and 2016. The latest annual leave taken by the Complainant shows she was paid for 30 hours annual leave on 10^th March 2016. Copies of payslips provided. 

Complaint dated 28^th June 2016. The Complainant received all her Public Holiday entitlements under the Organisation of Working Time Act. Evidence provided. 

Complaint dated 15^th June 2016. The Respondent stated that following a complaint by the Complainant in June 2015 an Independent Mediator was appointed to mediate between the Complainant and her Manager. These meetings were held over one month for the purpose of dealing both with the Complainant’s issues and with performance issues raised by her Manager and in an attempt to create a more positive working environment. This is in line with the Harassment and Workplace Bullying Policy of the Respondent.

The Head Chef filed a number of complaints over December 2015 and January 2016 against the Complainant in relation to her failure to take direction from her line manager – Hygiene issues in the kitchen and the preparation of patient food. There followed an investigation, and disciplinary sanction against the Complainant in relation to these complaints, conducted in accordance with the Disciplinary Procedures of the Respondent. 

Findings

Complaint dated 24^th March 2016. This complaint relates to the reduction in pay following the Collective Agreement agreed between SIPTU, the INMO and the Respondent following a ballot of Labour Court Recommendation CD/14/ 363 issued by the Court on 6^th January 2015. 

Complaint dated 28^th June 2016. This complaint relates to the payment received by the Complainant in relation to Public Holidays and also refers to the reduction in wages following the decision of SIPTU and the INMO and the Respondent to accept Labour Court Recommendation CD/14/363 issued on 6^th January 2015 and accepted by both Unions following a ballot of their members. 

Complainant dated 15^th June 2016 alleging a breach of Section 26 of the Act. There was no evidence presented by the Complainant to support an alleged breach of Section 26 of the Act. The Complainant did not provide any evidence to the Hearing as to how and when she had been penalised by the Respondent. The evidence was that the Complainant was the subject of an investigation and a disciplinary sanction following complaints lodged with the Respondent. The evidence presented at the Hearing by the Respondent shows that the investigation and Disciplinary process was conducted in accordance with the internal Disciplinary Procedures of the Company.

Decision

CA-00005073-006. Complaint dated 24^th March 2016. On the basis of the evidence I declare the complaint there was a breach of Section 20 of the Act not well founded. The reduction in payment for annual leave resulted from the acceptance by SIPTU, the INMO and the Respondent to Labour Court Recommendation CD/14/363 issued 6^th January 2015

In accordance with Section 41 (4) of the Workplace Relations Act, 2015 I declare the complaint is not well founded.

CA-00005073-007. Complaint dated 28^th June 2016. This complaint relates to an alleged breach of Sections 21 and 22 of the Act and relates to the payment to the Complainant following the reduction in wages resulting from the application of Labour Court Recommendation CD/14/363 issued by the Court on 6^th January 2015. In accordance with Section 41 (4) of the Workplace Relations Act, 2015 I declare the complaint is not well founded.

CA-00005073-008. Complaint dated 15^th June 2016. This concerns an alleged breach of Section 26 of the Act. The Complainant lodged a complaint against her Manager in June 2015 which was investigated in line with the Harassment and Bullying Policy of the Respondent. The Complainant’s Line Manager made a number of complaints to the Respondent in December 2015 and January 2016 in relation to the Complainants failure to carry out instructions of her Line Manager, Hygiene in the Kitchen and the preparation of Patients food. These complaints were investigated resulting in Disciplinary sanction in line with the agreed Disciplinary Procedures of the Respondent.

In accordance with Section 41 (4) of the Workplace Relations Act, 2015 I declare there is no breach of Section 26 of the Act. The Respondent did not penalise the Complainant when they investigated complaints from the Respondent’s Manager in December 2015 and January 2016 in line with the agreed procedures of the SIPTU/Company Agreement.

Industrial Relations Act, 1969

Summary of Complainant’s Position. The Complainant stated that she was subjected to disciplinary sanction which breached fair procedures.

Summary of Respondent’s Position.

There was an incident on 18^th December 2015 when the Head Chef and another Employee found the Complainant sitting outside the house of the Head Chef in a car. The Employees were concerned and had informed the Gardai of the incident.

Following a conversation with the Complainant she attended at a meeting where the issue was discussed. Both the Complainant and the Head Chef agreed to maintain a professional working relationship in the interests of the patients of the Nursing Home.

The Head Chef filed a complaint against the Complainant on 18^th December 2015 in relation to bones being left in a patient’s meal. This item was withdrawn from lunch and inspected and bones some 4 inches long were found in the prepared dish. This dish had been prepared by the Complainant.

The Head Chef filed a complaint on 19^th December 2015 in relation to an incident in the Kitchen where the Complainant failed to follow an instruction resulting in the Head Chef having to hit the emergency button.

The Head Chef filed a complaint on 11^th January 2016 in relation to a kitchen instrument not working which should have been lodged by the Complainant and wasn’t. A second complaint was lodged on the same day in relation to the oven which could have resulted in an accident. The Complainant had been instructed on numerous occasions how to reassemble the oven following cleaning.

Following an investigation a Disciplinary Hearing took place on 2^nd March 2016 following which the Complainant was issued with a verbal warning to remain for a period of 3 months. The Complainant was afforded a right of appeal which she did on 10^th March 2016 and the Appeal Hearing took place on 28^th April 2016 which upheld the verbal warning. A further meeting took place on 4^th July 2016 with the Complainant in relation to the Complainant’s request to have all correspondence sent to her named legal representative. She was issued with a letter dated 4^th July 2016 following this meeting at which the Disciplinary procedures were explained to the Complainant. 

Findings

Following a question at the Hearing in relation to this complaint the Representative of the Complainant stated that the alleged absence of fair procedures related to the refusal of the Respondent to have a 97 year old resident of the Nursing Home called as a witness. 

Recommendation. CA-00000599-015

In accordance with Section 13 of the Industrial Relations Act, 1969 I declare the Complainant was afforded all fair procedures and natural justice in relation to both the Disciplinary and Appeal Hearings and in line with the agreed Disciplinary Procedures of the Company and in accordance with S.I. 146/2000. I declare the complaint is not well founded. 

Employment Equality Act, 1998.

Summary of Complainant’s Position. 

The complaint was filed on 10^th February 2016 alleging discrimination on both Gender and Race Grounds. The complaint on the Gender ground was withdrawn at the Hearing.

The Complainant stated that her Comparators were Irish Nationals. She stated there are four Polish employees working in the Nursing Home. She alleged that she was not allowed speak her native language, Polish in the Workplace. The Complainant was the subject of a complaint in relation to speaking Polish while at work and a meeting was held in December 2015 in relation to this issue. 

Summary of Respondent’s Position.

The Respondent stated there were 15 different nationalities working in the Nursing Home. There is a policy which is known to all the employees that they are not allowed to speak in their own language in front of patients. There is no problem in employees speaking with colleagues in a language other than English on either breaks or when taking smoke breaks.

Findings

On the basis of the evidence I find that it is reasonable that all employees while working and especially in front of residents of the nursing home that all employees should speak in English. I note there is a policy to this effect in the workplace. I note that the employees are free to speak in their own language while on breaks from work. 

Decision CA-00000599-015In accordance with Section 79(6) of the Employment Equality Act, 1998 I declare the complaint is not well founded. The Complainant has failed to establish a prima facie case under Section 85 (A) (1) of the Act. The Complainant was not discriminated against on the basis of her race. 

Employment Equality Act, 1998.

This complaint was lodged on 17^th February 2016 and alleges discrimination on the Gender Ground.

Summary of Complainant’s Position.

The Complainant stated that she was discriminated against on the Gender Ground in that in December 2015 and February 2016 she was required to attend meetings at work but was not paid. The Complainant stated that when the Head Chef who is Male, attended a meeting in February 2016 he was paid. 

Summary of Respondent’s Position.

The Respondent stated the policy is if an employee is not rostered to work on a particular day they are not paid even though they may attend at the Premises. The Respondent stated that the previous week there was a HIQA Inspection and all employees not rostered to work did attend for the inspection but were not paid.

The Respondent stated that the Head Chef was invited to attend a meeting on 23^rd March 2016, however he was rostered for work on that particular day. 

Findings

The Complainant did not dispute the evidence presented at the Hearing by the Respondent in relation to attendance at meetings when not rostered to work.

Section 85 (A) (1) of the Act provides as follows: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary”.

The Complainant has failed to produce any facts at the Hearing from which it could be presumed there was discrimination on the basis of her gender. The Complainant did not dispute the evidence from the Respondent that when employees attend at work when they are not rostered to do so, they are not paid. 

Decision CA-00002816-002

In accordance with Section 79(6) of the Employment Equality Act, 1998 I declare the complaint of discrimination on the Gender ground is not well founded as the Complainant has failed to produce any facts from which it could be presumed the Complainant had been discriminated against. 

Dated                    11 April 2017