ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006957
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00009494-001 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00009494-002 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 |
CA-00009494-003 | 01/02/2017 |
Date of Adjudication Hearing: 29/09/2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other act as may be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
The Complainant herein has referred a matter for dispute resolution under Section 8 Unfair Dismissals Acts, 1977, Section 6 Payment of Wages Act, 1991 and Section 13 Industrial Relation , Act, 196 and the referral has been made within six months of the initial circumstances of the relevant dispute/contravention.
Withdrawal:
The complainant withdrew her complaint CA- 9494-02 Section 7 Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
The complainant has worked at the respondent school, as a cleaner, for 25 years. In September, 2012 she went out on sick leave. She remained out on leave until January, 2014. The respondent accommodated a staggered return to work schedule for the complainant. The complainant requested that she be allowed to return to her five days a week schedule however at that juncture, the respondent had somebody covering for the complainant on Tuesdays. The complainant requested that she be allowed to return to her pre- sick leave five days a week. A meeting was held in October, 2014 with the chairperson of the Board of Management and with the Principal. At this meeting she requested that she be allowed to work on Tuesday’s. She was told that somebody else was covering her Tuesday shift. She was made feel terrible. She continued to do the four days a week until the Summer of 2016. She made arrangements to visit her daughter on Tuesdays from then on. During the Summer of 2016 things started to change. She was asked to give her keys back. Her hours were reduced to 2 hours per day from 2.5 hours per day. The lady who was doing the Tuesday work started to do five days a week. In September, 2016 when the school re-opened the complainant continued to do fours days a week, two hours a day. However, she was paid for 10 hours. That stopped in January. Thereafter she was only paid for the work she did. It is the complainant’s hope that she will be allowed to work 2.5 hours per day four days a week. In relation to the complainant’s bonus, she accepts that she was paid a bonus of €200 for Christmas 2016 and €400 for summer, 2017. |
Summary of Respondent’s Case:
The respondent accepts that the complainant has been cleaning the school, without issue for over 25 years. She is a good employee. However, a Health and Safety concern emerged in relation to staff being on the premises alone after school hours. The new Chairperson of the Board of Management stated that she had grave concerns about the complainant working alone in the school. If anything happened to her she might not be found until the following day. She also had concerns about the number of people who had keys to the school. She stated that there was people coming and going at all hours of the day and night. She wanted to put a stop to that and to put some procedures in place where everyone’s access and egress to and from the premises could be monitor. This was for security and health and safety reasons. Furthermore, she noted that the complainant did not have a contract of employment. She gave the complainant a contract and asked her to get advice on it and to come back to her with any questions /alterations she wanted to make. The complainant works 40 weeks per annum. She is paid for 52. There was a custom and practice in that regard and the Board of Management are happy to honour that. When the complainant was out sick the caretaker carried out some of her cleaning duties. When she returned she refused to work with him. She said she was afraid of him because he carried a knife. The caretaker does carry a small knife, which he uses as part of his role as caretaker. He is an ex- garda, with an impeccable employment history. In September , 2016 when the complainant returned after the summer vacation she was asked to work five days a week, two hours per day. There was a contract cleaner in the school also who was also asked to work five days a week, two hours per day. The respondent, for the aforementioned health and safety reasons wanted the two cleaners working together in the school. That way neither of them would have to be on the premises alone. The complainant, having previously requested a five days a week schedule, refused to work on Tuesdays. She said she had made alternative arrangements for the Tuesday. The caretaker carried out the complainant’s role on Tuesdays. That way the complainant’s portion of the school was being cleaned and the contract cleaner was not left on the premises alone. However, it did mean that the caretaker was unable to carry out his duties. The respondent pays for the three ancillary workers, two cleaners and one caretaker and one secretary, from a department ancillary grant. There is a very specific sum available to pay for the ancillary work. The chairperson of the Board wrote the complainant in December, 2016 requesting that she work five days a week, two hours per day. She was informed that from January, 2017 she would only be paid for the hours she worked. The complainant continues to work only four days a week. |
Findings and Conclusions:
The complainant is hopeful that following this hearing, she will be allowed to return to her fours days a week, 2.5 hours per day schedule. I accept the respondent’s reasoning for the change in the working practice. It is not recommended from a health and safety or from a security prospective that the complainant be allowed to work on the premises alone. If the complainant were to fall ill or were to injure herself during the course of her work, or if there was a break in whilst she was there alone, the respondent could find themselves legally liable for complainant. Not alone are they entitled to protect themselves from any such situation but it is their legal duty to protect the complainant. It is for that reason that I recommend that the complainant should return to work five days a week, two hours per day and be available to work with the other contract cleaner. I am satisfied that the complainant was paid her bonus in December, 2016 and June, 2017. Therefore, I dismiss her claim pursuant to Section 6 Payment of Wages Act 1991.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint/dispute in accordance with the relevant redress provisions under Schedule 6 of that Act. And Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
CA- 9494- 003 I recommend that the complainant return to a five days a week, two hours per day ( 2.30pm – 4.30pm)working schedule. CA- 9494-001 I dismiss the claim. |
Dated: 16/11/2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly