ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00002728
Parties:14.06.16
| Complainant | Respondent |
Anonymised Parties | Part Time Fire Fighter | Local Authority |
Adjudication Reference: ADJ-00002728
Parties:2.11.16
Parties:6.04.17
| Complainant | Respondent |
Anonymised Parties | Part Time Fire Fighter | Local Authority |
Complaints:
|
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 |
CA-00006091-001 | 20/07/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 |
CA-00006091-002 | 20/07/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts |
CA-00003745-002 | 08/04/2016 |
Date of Adjudication Hearing: 06/04/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Location of Hearing: The Clayton Hotel Sligo
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015 and the Industrial Relations Acts 1969 -2015following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
At the final hearing the respondent took issue with the delay on the part of the claimant in meeting agreed time limits with respect to written submissions and submitted that there were no exceptional circumstances advanced for the delay in furnishing the most recent submission some 3 months after the agreed time frame.
A final submission was received from the respondent on the 6th.May 2017 .The claimant’s representative responded to same in August 2017.In this submission , the respondent replied to the allegation made by the claimant that he had been promised by a colleague that an additional uniform would be provided at the end of the training day on the 25th.Feb.2016.The claimant’s colleague, relied upon by the claimant, denied that he gave any such commitment and asserted that he was aware of the respondent’s policy which provides for the second uniform being presented on completion of the breathing apparatus wearer’s course. In Sept. 2017, the respondent took issue with the claimant’s assertions relating to the provision of a second set of uniform/equipment and denied that the claimant had been treated in any way less favourably to his colleagues
Safety Health & Welfare at Work Act, 2005 CA-00006091-001
Summary of Complainant’s Case:
The claimant was employed as a Part Time Fire Fighter with the respondent from the 16th.Nov. 2015 to the 25th.March 2016.In his complaint form he submitted that he made” numerous verbal complaints about breaches of the Act including failure to provide” Personal Protection Equipment , absence of arrangements for monitoring working time, rest periods , fatigue monitoring , work fitness, rostering , failure to designate safety officer , absence of remedy for bullying which I encountered and numerous other breaches .I was penalised and victimised by being told I didn’t fit in and forced out of the job. I was told the job was more suited to someone on the dole”. It was submitted that the claimant was penalised by being taken out of the fire tender – amounting to demotion and being denied PPE. It was advanced that he was further penalised and given the message he was unwelcome by being continuously rostered without a break from Dec. 2015- Feb. 2016.The non-refund of expenses in respect of a driving licence was also presented as an example of penalisation. It was submitted that the penalisation was such that the claimant felt he had no option but to resign. It was submitted that the penalisation was directly related to health & safety concerns expressed by the claimant on numerous occasions and it was submitted that there was no requirement under the Act to make such complaints in writing. |
Summary of Respondent’s Case:
The respondent vehemently refuted that the claimant had been penalised. It was advanced that there was no record of any such complaints or any evidence of written complaints. It was submitted that the role of Fire Fighter was specifically recognised under SI 21/1998 and SI 52/1998 which specifically provide for exemptions of retained fire fighters under the Organisation of Working Time Act, 1997. It was submitted that the claimant had to meet the test set out by the Labour Court in HSDO95- he provided no detail in relation to any alleged detriment other than alleging he was forced out of his job. It was contended that there was no basis for an allegation that “but for” making his alleged complaint, the claimant would have remained in the employment of the fire service. In tendering his resignation, the claimant advised he was resigning because he was unable to provide the necessary attendance and made no reference to the fore mentioned reasons now being advanced. A number of authorities were invoked in support of the respondent’s assertion that an unjustified sense of grievance does not amount to detriment. It was submitted that while the claimant was not satisfied with his PPE, this did not constitute detriment or penalisation. The claimants reference to the hand torch had been responded to comprehensively and the matter of ill-fitting boots was being addressed at the time the claimant resigned. It was submitted that the claimant was treated fairly and in accordance with the prevailing practise within the local authority and in many other local authorities with respect to attendance times and rostered time off. The respondent rejected the allegation of being removed from the tender as an example of penalisation – it was submitted that this had not being raised at previous hearings. On the day in question, a call concerning an industrial/commercial fire was received and the substation officer decided that the most experienced and qualified crew would be required – specifically those who had been trained in Breathing Apparatus. At this time, the claimant was a probationary firefighter and had not undertaken the appropriate training. It was submitted that the claimant was not included on the run in the interests of Health & Safety. It was submitted that the refund of the driving license issue had already been explained to the claimant on numerous occasions. He was treated no differently to his other colleagues – “Of the 13 fire fighters who joined the service since the end of 2013, 4 already had the Category BE license and 7 undertook it after commencement and no payment was made to them”. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
In his direct evidence the claimant articulated a deep sense of grievance regarding the attendance requirement for his grade –he asserted that he had made complaints about PPE and the attendance requirement to the Chief Fire Officer and the 2 Asst. Chief Fire Officers. He asserted that he asked on a weekly basis for a second uniform. The claimant had difficulty in articulating the circumstances of these complaints and did not document the complaints at any point. He alleged that he had sought cover for time off via 10 separate text messages but got no response. It is clear that he raised his grievance regarding the attendance issue at his probationary review on the 10th.Feb. 2016 and was advised at the meeting and in subsequent correspondence from the respondent that the conditions relating to availability are the same for all retained fire fighters in the employment. I note from the respondent’s submission that the claimant was furnished with all particulars relating to the position of a retained fire fighter and the attendance requirement and grievance procedure was clearly set out. The claimant submitted no compelling evidence to support his complaint of bullying and I note that in the claimant’s letter of resignation that his grounds for resigning were “I am not in a position to be on call 7 days a week 24 hours a day". The respondent asserted that the claimant was well aware of the attendance requirement when he joined the service and no one created any expectation that there would be a roster in place. To succeed in a complaint of victimisation, the claimant is required to demonstrate a causal link between the complaint made in the context of health and safety and the detriment suffered. On the basis of the evidence presented by both parties and in particular the fact that no complaints were documented to the respondent ; the fact that the only grounds advanced for the claimant’s resignation were the attendance requirement and the failure on the part of the claimant to present compelling evidence of detriment, I find against the claimant and do not uphold the complaint. |
Protection of Employees Part Time Work Act ,2001 CA-00006091-002
Summary of Claimant’s Position
In his complaint form the claimant asserted “I was a retained fire fighter but given lesser conditions than the full time staff. My comparator is Station Officer Mr. S who was given better terms including rostered work periods and Personal Protective Equipment”.
It was submitted that the status of retained Fire Fighters have been the subject of a considerable amount of litigation in the Irish Courts and that the House of Lords had found that retained fire fighters were entitled to equal employment conditions as full time Fire Fighters – Matthews-v-Kent [2006]I.R.L.R. 367.
It was contended that retained fire fighters have similar status as employees and it was argued that the respondent was attempting to import the Framework Agreement rather than the provisions of the Irish Act. It was submitted that direct applicability only arises when the Irish authorities have not legislated on foot of a framework agreement.
It was submitted that the claimant was treated less favourably in relation to PPE when compared with a full-time Station Officer. It was advanced that the provision of PPE is an implied condition of employment. It was asserted that the fact of the matter was that the claimant was treated less favourably than a full-time worker. In a post hearing submission, the claimant referred to documents issued to new recruits by the respondent which made reference to “ 2 complete sets of fire kit “ and set out the details of uniform , boots etc.
Summary of Respondent’s Position
The respondent submitted that they employed 120 retained fire fighters and 2 full time station officers. The station officers are employed in a 39-hour week contract – retained fire fighters are employed on a “retainer” basis, their main employment generally being in other occupations. The retained fire fighters are effectively on call and turn up if alerted to an incident- they are all employed on the same terms and conditions, are paid a retainer fee and further fees for attendance at fire calls. It was submitted that the employment relationship enjoyed by the full-time station officer differs significantly from that of a retained fire fighter. The provisions of Wippel v. Peek & Clappenburg GmbH & Co.KG (Case C313/02) was invoked in support of the respondent’s contention that the claimant’s employment was of a different type to the full time station officer. While it was acknowledged that the definition of a comparable full time worker in the Irish Act differs substantially from the Framework Agreement it was submitted that national courts are required to give immediate effect to the provisions of directly effective EC law in cases which arise before them, and to ignore or set aside any national law which could impede the application of EC law. This it was contended was supported by the Labour Court in FTC/05/12 UCHG & Masud Awan.
It was submitted that the claimant was not engaged in the same work, under the same or similar conditions or interchangeable with the station officer. The comparator is a full-time station officer with significant supervisory responsibilities while the claimant is a retained fire fighter and could not be considered to be interchangeable. It was submitted that the work of the claimant was not similar in nature to that of a station officer who carries a significantly broader range of duties than retained fire fighters. It was submitted that like work does not apply and accordingly the claimant’s comparator was inappropriate.
The provisions of Section 9 were invoked with respect to the objective justification defence – it was submitted that the discretion to attend at incidents outside of a 39-hour week commitment between the claimant and his comparator is justified on an objective ground unrelated to his status as a part time employee. It was suggested that what was being sought was that a part time worker would have full discretion to attend at any or all calls at his choosing.
It was submitted that PPE is not a condition of employment and that consequently this was not a valid complaint under the law. It was advanced that there was no obligation on the Council under the conditions of employment to provide the same PPE to all staff.
In a later submission, the respondent asserted that the claimant appeared to be confining his complaint under the Act to the provision of PPE – it was submitted that the claimant was issued with the appropriate PPE on joining in Nov. 2015 along with his 4 colleagues; the second set of PPE is issued following completion of the BA Wearers Course – this course commenced after the claimant resigned. It was submitted that the same arrangement applied to the Station Officer when he joined the service – hence there was no difference in treatment.
DECISION
Having reviewed the evidence presented at the hearing, I have concluded that the comparator is not an appropriate comparator as defined under Section 7(3) of the Act as the claimant does not perform the same work as a Station Officer, is not interchangeable with a Station Officer and is not performing work equal or greater in value than the claimant. Accordingly, I do not uphold the complaint.
Industrial Relations Acts
Section 13 of the Industrial Relations Acts
Summary of Claimant’s Position
It was submitted that it was clear from the circumstances of the case that the claimant was constructively dismissed by virtue of having been treated unfavourably, penalised and victimised once he made complaints under Health & Safety legislation and his complaints were ignored. The claimant sought reinstatement under fair and equal conditions.
Summary of Respondent’s Position
It was submitted that the single issue which the claimant had raised while in the employment of the respondent was the difficulties he was experiencing in meeting the attendance requirements of his role. It was submitted that this in fact was the reason for his resignation. Documentation charting the exchanges between the claimant and his supervisors on this matter was presented. In his letter of resignation, the claimant stated that he was “ not in a position to be on call 7 days a week , 24hours a day”. It was submitted that the claimant had described the attendance requirements as “extremely demanding” in the context of the demands associated with his own private business interests and social life.
It was submitted that the claimant had not made any complaint of bullying under the respondent’s dignity at work policy.
Section 13 of the Industrial Relations Act requires that I make a Recommendation on CA-00003745-002
Having reviewed the evidence presented at the hearing I find the claimant was unable to present compelling grounds for his failure to invoke the respondent’s grievance procedure. I found no evidence of the respondent having breached the claimant’s contract or indeed of having acted so unreasonably that the claimant had no option but to resign. Consequently, the claimant has failed to discharge the burden required to support a complaint of constructive dismissal and accordingly I recommend against the claimant.
Dated: 06/12/2017
Emer O Shea Adjudicator