ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008309
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 |
CA-00011063-001 | 01/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 |
CA-00011063-002 | 01/05/2017 |
Date of Adjudication Hearing: 02/08/2017
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Acts 1969 and following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.
Background:
The Complainant commenced working with the Respondent in October 2014. He initially worked in the role of General Operative. In January 2015 the Respondent registered the Complainant on a SOLAS apprenticeship program.
On 23 November 2016, both the Complainant and the Respondent received correspondence from the Education and Training Board who were managing the apprenticeship program. This letter stated that the Complainant has failed to successfully complete, after three attempts, Phase 2 of his apprenticeship program. The correspondence further advised that, in accordance with SOLAS procedures, the Complainant’s apprenticeship was terminated.
The correspondence further set out that the Complainant had the option to appeal the termination of his apprenticeship and that the appeal would be heard by the SOLAS National Appeals Committee.
Following representations made to the Respondent and their discussions with the Complainant and his family, the Respondent wrote to the Complainant on 2 December 2016. In this correspondence the Respondent pointed out that in an effort to allow the Complainant the opportunity to appeal the termination of his apprenticeship by SOLAS, he (the Complainant) would be suspended from duty, without pay, pending the outcome of his appeal.
On 31 March 2017, the Complainant and the Respondent were both advised that the former's appeal of the termination of his apprenticeship had been successful and he had been granted a fourth and final attempt to complete the outstanding assessments. This correspondence further advised that the Complainant was required to contact the relevant ETB in order to make arrangements for resetting the assessments.
In early April 2017, the Complainant contacted the ETB in relation to resetting the assessments and was informed that he could sit them any time he felt comfortable enough to do so.
On 21 April 2017, the Respondent wrote to the Complainant requesting a progress update including a timeline in relation to the re-sitting of the assessment. Having received no response to this correspondence, the Respondent sent further correspondence to the Complainant on 9 May 2017 requesting a further update on the situation.
The Complainant responded to this correspondence, on the same date, advising the Respondent that he was resigning his position and was submitting a claim to the Workplace Relations Commission. |
Summary of Complainant’s Case:
The Complainant stated in evidence that by placing him on suspension without pay, the Respondent took away his right to work and earn a living. The Complainant further contended that all his attempts to work something out with the Respondent were rejected.
In addition, the Complainant stated that the Respondent put him under additional pressure by stipulating, in March 2017, that, if he didn't pass his exams within a two-month period, they would terminate his apprenticeship. The Complainant contended that this was unreasonable in a context where they were aware that it could take up to six months to get a decision on his appeal and, if successful, resit his assessments.
In conclusion, the Complainant stated that he had spent almost 26 weeks on suspension without pay and this resulted in a loss of income, based on first-year apprenticeship rates, of €6,682 .00. |
Summary of Respondent’s Case:
In response to the claim, the Respondent stated that the Complainant had originally commenced work with them in October 2014. Having been impressed by the Complainant's work the Respondent decided to employ him on an apprenticeship contract in February 2015, despite the fact that he did not meet the educational qualifications required for same.
The Respondent stated that once the Complainant's apprenticeship was terminated in November 2016 by SOLAS, they (the Respondent) were not in the position to continue to employ the Complainant. However, following representation from the Complainant and his family and in an effort to support his appeal of the decision to terminate his apprenticeship, the Respondent decided to retain the Complainant as an employee pending the outcome of his appeal.
The Respondent stated in evidence that it was not in a position to pay the Complainant while he awaited the outcome of his appeal. Consequently, the Respondent stated that it agreed to place him on suspension without pay as the best means of retaining him on their books without incurring cost for the respondent. In correspondence to the Complainant on 2 December 2016, in which the detail of this arrangement was set out, the Respondent clearly stated that the suspension from duty was not a disciplinary sanction but was merely a holding measure pending the outcome of his appeal to SOLAS.
The Respondent stated that in the period following notification, in March 2017, from SOLAS that the Complainant's appeal had been successful, they sought clarification from the Complainant in relation to a situation. The Respondent stated in evidence that the only response they got to these queries was a notification from the Complainant on 9 May 2017 that he was resigning his position with the Respondent and with lodging a claim with the WRC.
In conclusion of their submission, the Respondent stated that they had been extremely supportive of the Complaint from the commencement of his employment right through to the appeal of the termination of his apprenticeship.
The Respondent contends that the Complainant's claim must fail on the basis that there is no trade dispute between the parties, which is a requirement for a claim being taken under the Industrial Relations Act 1969. The Respondent also referred to the fact that the Complainant had resigned rather than being dismissed. |
Findings and Conclusions:
CA-00011063-001 ( Industrial Relations Act, 1969) Having carefully reviewed the evidence submitted in relation to this claim, I am satisfied that the dispute centres on the period between December 2016, when the Complainant's apprenticeship was terminated by SOLAS and May 2017 when he tendered his resignation to the Respondent.
In particular, the Complainant's claim relates to his contention that the Respondent was responsible for the fact that he (the Complainant) was not in a position to claim Social Welfare benefit during this period. This view is based on the contention that his employment status with the Respondent - "suspended without pay" - prevented him from claiming benefit.
The evidence adduced at the Hearing highlighted two conflicting views of the situation as provided by the Department of Social Protection (DPS) to the respective parties. The Complainant submitted evidence of correspondence from DPS which indicated that, as he was not effectively available for work, he did not qualify for Jobseekers Benefit.
On the other hand, the Respondent presented oral evidence of a telephone conversation with DPS where they (DPS) were satisfied as to the Complainant's eligibility for benefit, based on the Respondent's explanation of the rationale for the status of suspension. According to the Respondent's evidence, DSP advised that all they needed to do was liaise with the Complainant to confirm the situation.
The Respondent also provided documentary evidence from the DSP website in relation to the impact of "Suspension from employment Without Pay". This evidence indicates that a person who is suspended without pay is not considered to be in employment and is, therefore, regarded as unemployed for social welfare purposes.
It would appear from the above that the Respondent may well have been entitled to some benefit during the period from December 2016 and May 2017. I am of the view that, had the Complainant engaged in more collaborative contact with the Respondent, the matter may have been resolved to the Complainant's benefit.
However, not withstanding this, I am satisfied that it was the Complainant's responsibility to sort out his own situation with the Social Welfare. It is clear that the Respondent was, in effect, accommodating/supporting the Complainant in the pursuit of his appeal of the termination of his apprenticeship. It is also clear that in doing so, it was never intended that the Complainant would be in receipt of pay or that there would be a cost to the Respondent.
Consequently, taking all of the above into consideration, I am satisfied that it would be unreasonable and unfair to have a retrospective cost applied to the Respondent when it was the Complainant's responsibility to sort out his social welfare situation.
CA-00011063-002 ( National Minimum Act, 2000)
Preliminary Issue: The Complainant raised a preliminary issue in relation to his complaint under the National Minimum Wage Act.
The Complainant stated that he had filed this element of his complaint under the Minimum Wage Act in error. He cited his lack of experience in dealing with IR matters and the fact that, at the time he made his complaint, he did so without the any assistance or union representation.
In his written submission to the Hearing, the Complainant sought that I would exercise the authority set out in Section 39 of the Organisation of Working Time Act, 1997 and allow his complaint, in this instance, to be heard under the Payment of Wages Act..
With regard to this preliminary issue, Section 39 of the Organisation of Working Time Act relates to errors in a “decision” by a relevant authority. It does not, in my view, confer authority on that relevant authority to correct errors other than those contained in their decisions.
Consequently, I find that the Complainant’s error of filing his complaint under the incorrect Act, does not fall within the provisions of Section 39 of the Organisation of Working Time Act and, therefore, his complaint must be considered under the National Minimum Wage Act, 2000, as originally submitted.
Substitutive Issue: Section 5 (b) of the National Minimum Wage Act, 2000, states that the Act does not apply to an apprentice. As the Complainant was employed on a formal apprenticeship scheme under the auspices of SOLAS, I find that he is not covered by the terms of the National Minimum Wage Act. |
Decision and Recommendation:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint under the National Minimum Wage Act, 2000 and Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the IR dispute.
Recommendation: CA-00011063-001 ( Industrial Relations Act, 1969) Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I believe that the Complainant has no claim against the Respondent under the Industrial Relations Act, 1969. Consequently, I am not in a position to make a recommendation.
Decision: CA-00011063-002 ( National Minimum Act, 2000) Based on the considerations/findings as detailed above, I find that the Complainant’s complaint under the National Minimum Wage Act, 2000, is not upheld.
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Dated: 10/11/2017
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Key Words:
Apprenticeships Minimum Wage
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