ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006147
Parties:
| Complainant | Respondent |
Parties | An Officer Administrator | Services |
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-00008239-001 | 17/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00008239-002 | 17/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00008239-003 | 17/11/2016 |
Date of Adjudication Hearing: 18/05/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and Section 79 of the Employment Equality Acts, 1998 - 2015, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant has been employed as Office Administrator since 1st August 1989 and following a Transfer of Undertaking on 4th April 2016 the Complainant transferred to the named Respondent. The Complainant is paid €1012.00 gross per week and she works 40 hours a week. The Complainant was issued with a written statement of her Terms and Conditions of Employment by the Transferor in October 2015. The Complainant was also issued with a further Contract of Employment by the Transferee dated 5th April 2016 signed and dated by the Parties. The Complainant referred a complaint to the Workplace Relations Commission on 17th November 2016 alleging she had been discriminated against on grounds of her age. She referred a complaint to the WRC on 17th November 2016 alleging the Respondent had breached the Payment of Wages Act, 1991 in relation to payment while on sick leave and a further complaint under the Protection of Employees on Transfer of Undertakings Regulations The Complainant has been on certified sick leave from August 2016 to date. |
Summary of Complainant’s Case:
Payment of Wages Act, 1991. The Complainant went on certified sick leave from 29th August 2016 and the Respondent has refused to pay her the 3 months sick pay to which she is entitled. In support of this claim it was stated that on the few occasions on which the Complainant had taken sick leave when employed with the Transferor she was always paid while on sick leave. The Complainant was provided with a written statement of her Terms and Conditions of employment by the Transferor on 31st October 2015 and as no line was drawn through the section on Incapacity it is logical to conclude that de facto this is an acknowledgement of her entitlement to sick pay. As the Transferee did not query this then again de facto the Transferee accepted her entitlement to sick pay. When the Complainant sought payment of her sick pay in the new contract issued to her by the Transferee the Respondent then repudiated this contract and claimed to have issued her with a different contract on 1st March 2016. On 1st March 2016 the Complainant was still employed by the Transferor. The Complainant is claiming payment of 3 months sick pay. |
Summary of Respondent’s Case:
Payment of Wages Act, 1991 The Complainant was issued with a written statement of her Terms and Conditions of Employment by the Transferor on 31st October 2015 signed and dated by the Transferor. This Contract makes no provision for the payment of wages while on sick leave. The Transferee wrote to the Complainant by letter dated 1st March 2016 under the TUPE Regulations in which it states “The transfer of your employment will be on the existing terms and conditions of employment with full continuity of service”. All enclosed with this letter was the Transferor’s policies and procedures which were to form part of her contract of employment with the Transferee. This Contract of Employment from the Transferee, signed and dated on 5th April 2016 provides as follows “You will be entitled to three days paid sick leave in one calendar year”. |
Findings and Conclusions:
Payment of Wages Act, 1991. On the basis of the evidence from both Parties I find that the complaint is not well founded. The Complainant was issued with a Contract of Employment by the Transferor dated 31st October 2015. This makes no provision for the payment of wages for three months while on sick leave. The Complainant’s employment transferred to the Transferee on 4th April 2016 under the TUPE Regulations and the letter dated 1st March 2016 from the Transferee clearly states that her existing terms and conditions of employment will transfer. This contract signed and dated by the Parties on 5th April 2016 clearly provides for the payment of three days paid sick leave in any one calendar year. The Policies and Procedures of the Transferee also provided to the Complainant does also provide for the payment of three days paid sick leave in each calendar year. |
Decision: CA-00008239-001
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and in view of my findings above I declare this complaint is not well founded.
European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 – S.I. 131 of 2003
Preliminary Issue – Time Limits
The Complainant lodged a complaint with the WRC on 17th November 2016 stating as follows: Both the previous employer and the new employer ignored my entitlements under TUPE”. The Transfer of Undertaking took place on 4th April 2016, therefore in accordance with Section 41(6) of the Workplace Relations Act, 2015 this complaint should have been lodged with the WRC by 5th October 2016. By email the Solicitor for the Complainant sought an extension of time under Section 41 (8) of the Act of 2015 and argued that the Complainant was on sick leave and therefore the delay was due to “reasonable cause”.
I note the exchange of correspondence between the parties commencing on 26th September 2016 up to 1st November 2016. I further note that in the letter dated 26th September 2016 from the Complainant to the Respondent she suggests “there are several claims that I could lodge against the business……Ideally I would like you or someone on your behalf to meet with my (named) representative, for an off the record discussion about the issues”. The Complainant attaches an email from her named Legal Representative in relation to such claims. I find that the Complainant engaged fully both with the Respondent in an exchange of correspondence and also with her Legal Representative form September 2016. On this basis I find that the Complainant has not shown “reasonable cause” for an extension of time under Section 41(8) of the Act of 2015
Decision CA-00008239-003
In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare I do not have jurisdiction to hear this complaint as the complaint does not comply with Section 41(6) of the 2015 Act.
Employment Equality Act, 1998 – 2015 CA-00008239-002
Summary of Complainant’s Position.
The Respondent kept changing her duties following the Transfer of Undertaking on 4th April 2016. She was also required to learn new skills. In a conversation with the Named Manager, relating to her training, he made a statement to the effect that he appreciated that at your age you may not pick up things as quickly as named junior employees of the Respondent Company. The Complainant was totally shocked by this statement. The Complainant stated that the latest incident occurred on 29th August 2016.
Summary of Respondent’s Position.
The named Manager of the Respondent Company had notes of each meeting held with the Complainant effective from April 2016 up to 25th August 2016. These were provided to the Complainant and to the Adjudication Officer. These record meetings held in April 2016 after TUPE in relation to new procedures in the Company in relation to timesheets, holidays and public holidays etc. The Complainant had indicated at a meeting held on 12th April with both the Transferor and the Transferee that the transfer was a big upheaval and she cited her age profile. She identified a number of changes of procedures which were different but there would be a transition period.
A meeting took place with the Complainant on 22nd July 2016 concerning her integration and the necessity for the Complainant to comply with the new procedures. The Complainant identified a number of issues and she was requested to identify anything that would assist with the integration. The Complainant indicated she would consider the issue and revert.
Another meeting took place with the Complainant on 25th August 2016 concerning the integration of her role into the Company further. The Complainant had not yet completed tasks as requested from the July meeting. The Complainant indicated that she did not consider her previous role remained with the Respondent Company following the transfer. The Respondent indicated to her that there was no change in her role with the exception of a reduction in administration time. She was informed that she would be taking on new roles in line with her ability. She was informed that if she had a difficulty with any issue assistance would be provided.
Findings and Conclusions.
Section 85A of the 1998 Act as amended provides as follows- “(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”. The Labour Court in Southern Health Board v Mitchell (2001) held as follows in relation to the evidential proof required as follows –“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if the primary facts are established to the satisfaction of the court, and they are regarded as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.
I find that the Complainant has not satisfied Section 85A of the Act in that the Complainant has not established any facts for which it may be presumed that that the Complainant has been discriminated against on grounds of her age. There was no evidence presented to me that the Complainant had been discriminated against on grounds of her age in relation to “training” “victimising her” “conditions of employment” as specified on the complaint form.
The Complainant also on the Complaint Form stated that she had been discriminated against in relation to harassing her. Section 14A of the 1998 Act as amended sets down a definition of “Harassment”. However the Complainant made no submission to the Hearing on 18th May 2017 as to how the Complainant had been discriminated against under this Section of the Act. I find that the Complainant has not satisfied Section 85A of the Act in that the Complainant has not established any facts in relation to this alleged Harassment from which it may be presumed that the Complainant had been discriminated against
DecisionCA-00008239-002
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
In accordance with Section 79 (6) of the Act I declare this complaint is not well founded as the Complainant has failed to satisfy Section 85A of the Act
Dated: 22nd August 2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Payment of Wages – Payment for Sick Leave TUPE – Time Limits Equality – Section 85A |