ADJUDICATION OFFICER DECISION and RECOMMENDATION

 Adjudication Reference: ADJ-00007990

Parties:

Complaints and Dispute:

Date of Adjudication Hearing: 10/08/2017

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 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.

The Complainant was employed from 20^th December 2010 as a Chef with the Respondent Company. The Complainant is paid €543.75 gross per week and he works 37.5 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment when he commenced employment in 2010 and this includes the Grievance and Disciplinary Procedures of the Company. The Complainant referred a complaint to the Workplace Relations Commission (WRC) on 20^th March 2017 alleging a breach of Section 5 of the Act – a complaint under the Organisation of Working Time Act, 1997 – 2015 in relation to his annual leave entitlements for 2013/2014 and a dispute under the Industrial Relations Act, 1969 in relation to Bullying and Harassment.

SUMMARY OF COMPLAINANT’S POSITION.

Terms of Employment (Information) Act, 1994 – 2015. The Complainant stated that he was not informed in writing of a change to his Contract of Employment when his work location was changed

Organisation of Working Time Act, 1997 – 2015. The Complainant stated that he only received 15 days annual leave in 2013 and 2014 and he stated that while some money was eventually given to him he believes that he is still owed some 8 days annual leave.

Industrial Relations Act, 1969. The Complainant stated that the Respondent had informed him of customer complaints but he had not been provided with details. Likewise he has not been promoted of received a pay rise unlike less qualified employee. He stated that he was photographed drinking a can of coke and was accused of stealing it and he has not received adequate training for his position. He had to seek a transfer because of the stress he was experiencing at work.

SUMMARY OF RESPONDENT’S POSITION.

Terms of Employment (Information) Act, 1994 – 2015. The Complainant was issued with a Contract of Employment when he commenced employment in 2010 – copy provided to the Hearing. It was the Complainant who requested a transfer from his then specified location to another,location and he was informed in writing, by letter dated 14^th September 2016 of this agreed transfer and confirming his hours and wages. There was no other change to the Complainant’s Terms and Conditions of Employment as set out in 2010. Likewise the Employee Handbook provides for a mobility clause. The Respondent has complied fully with Section 5 of the Act. The Complainant transferred to this new location, at his request effective from 12^th September 2016 and this complaint was lodged on 20^th March 2017.

Organisation of Working Time Act, 1997 – 2015. The Respondent raised a preliminary issue in relation to Time Limits.

Industrial Relations Act, 1969. The Complainant has not raised any issues internally through the agreed Collective Agreements on Grievance and Disciplinary Procedures. The Complainant has not raised any issue with the Respondent since his transfer in September 2016.

The Respondent also confirmed that the Complainant was the subject of investigation in March 2014 when he attended a meeting in relation to smoking in a non-designated area, in his uniform and also drinking a can of coke. The Complainant according to the minutes of this meeting on 20^th March 2014 confirmed that he was aware of the smoking policy. He also confirmed that he was not allowed to smoke in full uniform and he confirmed that he was aware he was not allowed to bring his own food or drink into the restaurant. He was issued with an outcome letter undated which confirmed that the issues would not proceed to a formal disciplinary process but that he was being issued with an informal warning. The Respondent stated that these incidents were in breach of HACCP Regulations

The Respondent has a very detailed policy on Grievance Process which has been supplied to the Complainant and they also have a detailed policy in relation to Bullying and Harassment.

FINDINGS AND CONCLUSIONS.

Terms of Employment (Information) Act, 1994 – 2015 CA-00010315-001

Section 5 provides as follows – whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than – (a) one month after the change takes effect. The evidence was that the Complainant sought a transfer and was accommodated with this transfer in September 2016 and was notified of this by letter dated 14^th September 2016.

I find the Respondent has complied fully with Section 5 of the Act

Organisation of Working Time Act, 1997 – 2015 CA-00010315-002

Preliminary Issue. – Time Limits. This complaint was lodged with the WRC on 20^th March 2017. The complaint relates to annual leave for the years 2013/2014. Section 41(6) of the Workplace Relations Act, 2015 provides that a complaint must be lodged with the WRC within the period of 6 months of the alleged contravention to which the complaint relates. Section 41(8) does allow for an extension of time by a further 6 months due to reasonable cause. However this would not benefit the Complainant.

I find I do not have jurisdiction to hear this complaint as it does not comply with Section 41(6) or 41(8) of the Act.

Industrial Relations Act, 1969 CA-00010315-003.

I note that the Complainant has been provided with the Grievance and Disciplinary Procedures and also the Bullying and Harassment Policy of the Respondent Company but has failed to utilise these. I further note that the Complainant has failed to utilise the internal procedures to lodge any complaints or grievances he may have with the Respondent.

The Complainant should therefore utilise the internal procedures to lodge any complaints or grievances he may have prior to referring a dispute to the WRC.

DECISIONS AND RECOMMENDATION.

Terms of Employment (Information) Act 1994 – 2015 CA-00010315-001

In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded. The Respondent has complied with Section 5 of the Act by letter dated 14^th September 2016 in relation to a transfer to another requested location on 12^th September 2016

Organisation of Working Time Act, 1997 – 2015 CA-00010315-002

I declare I do not have jurisdiction to hear this complaint as it does not comply with Section 41(6) or Section 41(8) of the Workplace Relations Act, 2015.

Industrial Relations Act, 1969 CA-00010315-003

In accordance with Section 13 of the Act I recommend that if the Complainant has any grievance then he should utilise the agreed internal Grievance procedure prior to lodging a dispute with the WRC.

Dated:   26 October 2017

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