ADJUDICATION OFFICER DECISION and RECOMMENDATION
Adjudication Reference: ADJ-00006541
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaner | A Cleaning Company |
Representatives | Daniel Snihur Independent Workers Union | No Appearance by or on behalf of the Respondent |
Complaints:
|
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-00008663-001 | 08/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00008663-002 | 08/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 |
CA-00008663-003 | 08/12/2016 |
Date of Adjudication Hearing: 18/07/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the payment of wages Act, 1991, section 7 of the Terms of Employment (Information) Act,1994 and Section 13 of the Industrial Relations Acts 1969, following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.
Background:
The Complainant is a Cleaner who commenced work at a Large Cleaning Company on 4 April, 2007. He worked a 39-hour week and his pay was detailed at €9.75 per hour on 8 December 2016. The Complainant was represented by his Trade Union, who outlined the case on his behalf. He stated that he did not have a contract of employment . |
Summary of Complainant’s Case:
The Complainants Representative outlined that he had worked full time hours each week at the rate of €11.29 per hour up until the end of April, 2016 at a base location .The Complainant submitted that he had faced retaliation from the site manager in respect his organising a group of colleagues into the Union to oppose discrimination and the ban on the utilisation of the Polish language at work This occurred between February and April 2016. The complainant submitted that the group grievance worked but he was thrown off the site ,suspended , disciplined and ultimately dismissed .He appealed this which resulted in him being relocated to another site . He submitted that his wages were reduced to €9.75 an hour and his hours were reduced. He submitted that he was promised full hours in the other base location but this did not transpire. Instead the company accommodated another employee who had previously resigned and had since returned to work. CA-00008663-001 Payment of Wages As result of the complainant being transferred to the GE site, he lost may hours of work and his rate of pay was unfairly reduced from €11.29 to €9.75 per hour. He valued his loss as €5,788.78 payable on December 2016. During the hearing, the complainant confirmed that the date of contravention was May 1, 2016.Prior to this he had been on four week paid suspension from April 4. He sought an extension of time limits on reasonable cause as he had sought to advance his case through the grievance procedure in August 2016. CA-00008663-002 Terms of Employment Contrary to his written terms and conditions of employment, the complainants rate of pay and hours of work were reduced and he was removed from his position and transferred to another site where his hours of work also changed. CA-00008663-003 Industrial Relations The Claimant submitted that he organised of a group of Polish cleaners into a Union to secure representation in the face of bullying, harassment and discriminatory treatment by site management. He was one of a group of 6 employees threatened with relocation from his base location. The Management refused to deal with the Union as it recognised a different Union. An issue had arisen regarding being denied permission to speak Polish at work and a group grievance was lodged and was somewhat successful. Very soon afterwards, the claimant submitted that he was thrown off shift, suspended and dismissed. This was overturned on appeal and involved a relocation to another base location. Whilst suspended the complainant had got some part time work at this new base location but that also ceased. He was denied any hours of work in June 2016 and his pay was reduced by €1.54 per hour. He also works an evening shift 2.30 pm to 11 pm which has had a significant negative impact on his family life as he had worked a day shift of 08.00hrs to 4.30 pm in his previous base location. The Claimant submitted that his wishes to relocate back to day shift have been ignored by management. The Union pointed to an advertisement concurrent with the claimant’s disciplinary procedures, which saw the Respondent advertising for cleaning operatives and argued that it was clear that the company was intent on replacing him because of the site manager’s disapproval of him. The Claimant also submitted a plea to the company head of Hr on 27 August 2016 in the aftermath of his disciplinary sanction, which went unanswered. The Union also pointed to a letter from the Respondent payroll which described the complainant as a relief worker from 13 June 2016 at the second base location, despite his long tenure with the company going back to 2007. The Union sought compensation for the claimant being forced out of his job at the first base location through unfair disciplinary proceedings where he was denied representation of his choice. On 31 July, 2017, I sought a copy of certain documentation in support of the claims. 1 The Complainants contract of employment 2 Record of hours worked at both base locations 3 Copies of Pay Slips covering both sites. I received a statement of terms of employment and some pay slips governing the second base site which covered the period 14 May 2017 to 9 July 2017, which referred to an hourly rate of €10.05 per hour. The Complainant requested a further two-week extension to explore an opportunity to resolve the issues and I agreed to this. However, I did not receive a further update from the Complainant prior to submitting this decision. As it is now 3.5 months from date of hearing, I thought it best to move to submit my decision to the parties. |
Summary of Respondent’s Case:
The Respondent has not lodged a response to the complaints. At the hearing, there was no appearance by or on behalf of the respondent. The Complainants representative mentioned that he understood that the company had relocated back to Dublin and were no longer at the address mentioned on the complaint form. On 31 July, 2017, I wrote to the Respondent at the Dublin address given to me and offered to resume the hearing or to permit the respondent an opportunity to respond to the complaints. I did not receive a response. In the intervening period, the Complainant has appraised the WRC that the Respondent had reviewed the complaints and sought a further two weeks’ extension in early September, 2017. I heard nothing further from the respondent in this case. |
Findings and Conclusions:
I have considered the oral and written submissions lodged by the complainant. I have also considered the supplementary documentation received. I have found considerable overlap in the content of all three claims in this case.
CA-00008663-001 Payment of Wages
The Complainants Representative advanced the case for reasonable cause to extend the statutory time limits in this case. My attention was drawn to a letter sent by the complainant to the company human resource dept. on 27 August ,2016. This was four months after the alleged deduction in pay. I also noted that I did not receive any pay slips from the first base location to assist in my inquiries into the claim.
I reviewed the 10th June letter which confirmed the complainant’s re-assignment. This letter set out that the complainant had worked during his suspension at the second base location and a period of pay adjustment was to follow. This was not disputed by the complainant. I noted that the complainant had recorded a 306.5 hr work pattern at €10.05 per hour during the weeks of May and June 2017.I deduced this information from the pay slips forwarded after the hearing.
I can find no grounds to apply a reasonable cause delay in accordance with 41(8) of the Workplace Relations Act, 2015. I find against the complainant.
CA-00008663-002 Terms of Employment
I noted that the contracts I received had mobility clauses inserted. I reviewed both statements of terms and conditions dated July 2007 and May 2009. The first contract outlined a flexibility in pay and I interpreted it as a zero hours’ contract. The second contract outlined a €11.29 per hour for a five-day week. The complainant did not submit evidence of a pay slip to corroborate the second contract.
I have found that this complaint is out of time. The Complainant confirmed that he was notified of the proposed changes to his terms of employment in May 2016 and lodged his claim before the WRC on 8 December 2016. I have not established any grounds to apply a reasonable cause for the delay in accordance with Section 41(8) of the Workplace Relations Act, 2015.
CA-00008663-003 Industrial Relations
I have considered the submissions both oral and written offered by the claimant in this matter. It would have helped me to have heard from the Employer in this case. It was not to be.
I found some inconsistency in the claimant’s version of events. The claimants case led me to believe that his dismissal was directly attributable to his central role in Organising workers in his work place. However, a letter from the Employer presented at the hearing, dated June 10, 2016 outlining the claimants successful appeal of his dismissal referred to a myriad of reasons separate to this version. I have difficulty with this variance.
Statutory Instrument 146/2000 provides a comprehensive road map to the processing of both grievance and disciplinary matters. For the code, an employee representative includes a colleague of the employee’s choice and a registered trade union, but not any other person or body unconnected with the enterprise.
This has taken on a special significance following the findings of Eagar J in a judicial review in Lyons V Longford and Westmeath ETB [2017] IEHC 272. This case involved a refusal to allow legal representation in the context of a workplace investigation of an allegation of bullying and favoured the applicant.
The claimant was offered the right to representation by a recognised Trade Union representative. However, this is not in line with the wording in SI 146/2000 where the provision refers to “registered Trade Union “. I am satisfied that the claimant was a member of a registered Trade Union and had a right to be afforded advocacy on an individual basis in something as grave as a potential dismissal. It is entirely a personal matter whether he chooses to take up the offer. The mechanism of representation can be of mutual benefit to the parties in a challenging employment situation. It can facilitate enhanced objectivity and focus.
In Panagopoulou and The West Cork Hotel, UD 1480/2009, the complainant was found to have been unfairly dismissed as a Solicitor was denied access to the hearings.
I have found that the claimant was not afforded an appropriate opportunity for representation at this key juncture of his working life.
I did not receive any details of the agreement made between the parties following the successful appeal in June 2016. I have not received sufficient details of the pay slips or any other validating document to allow me to confirm that a reduction in pay and hours took place. I am conscious that an overlap of hours occurred when the claimant chose to work during the prohibited period of his suspension and reference was made to a “ balancing exercise “.This seems to be still unfinished business. The pay slips submitted refer to the 2017 time line which post date the claim .
I note that the claimant lodged a letter to the company in August 2016 and this was not addressed by the company. This incorporated most of the body of this claim.
I find that this letter should be considered by the company and representation permitted on an Individual basis to address the dispute between the parties within a four-week period of this recommendation.
Decision:Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints and dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have found the complaint to be out of time.
I have found the complaint to be out of time. Recommendation CA-00008663-003 Industrial Relations Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. I recommend that both parties prioritise a direct engagement on the August 27 ,2016 letter to the Employer Human resource Dept within four weeks of this recommendation to seek to reach a mutually acceptable settlement of the issues of base location, pay and hours of work. Representation by the claimants Trade Union Official on an Individual basis should be permitted. I am not satisfied that the Employer complied with SI 146/2000 . Individual representation was denied at a key time in the employees working life, which constituted a detriment . I find some merit in this aspect of the Dispute and award €1,500 in compensation for the omission. |
Dated: 15th November 2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Pay, Hours and Base of Work. Individual representation. |