Representatives

In person

Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00007523-002

10/10/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00007523-003

10/10/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00007523-004

10/10/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00007523-005

10/10/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00007523-006

10/10/2016

The respondent employs the complainant as a legal executive/office manager since 19th of June 2007. She is paid €500 and works 30 hours per week. The parties made written and oral submission to the hearing.

CA-00007523-002: The complainant submits that she did not receive written terms and conditions of employment in breach of s. 3 of the Act.

CA-00007523-003: The complainant submits that the respondent unilaterally changed her terms and conditions of employment (daily start and finishing times, provision of mobile phone for work purposes and attendance at prison visits) without her agreement. She was verbally informed that the changes were mandatory but no written notification was received in accordance with the provisions of s. 5 of the Act.

CA-00007523-004: The complainant submits that she has been subjected to unreasonable treatment on the part of the respondent to the extent that she has been accused of causing delay in respect of the installation of telecommunications lines in the office as retaliation for her dissatisfaction wih the respondent’s insistence that she revert to a previous work pattern and treating her current absence due to illness as if it were a termination of the employment.

CA-00007523-005: The complainant submits that she had always been paid sick pay, but that the respondent unilaterally withdrew this payment when she became unfit to work after the 25th of July 2016. Insofar as payment while out sick was an implied term of contract the current failure amounts to a breach of s. 5 of the Act.

CA-00007523-006: The complainant submits that the respondent has deliberately thwarted her in her application for a medical card, withholding a personal injuries settlement, demanding the return of her personal and work phone despite pressing circumstances, providing a substantially changed contract of employment and accusing her of taking an old laptop which was previously gifted to her.

CA-00007523-002: The respondent submits that the terms and conditions of employment were discussed and agreed at the commencement of the employment. Written terms and conditions were furnished on the 17th of February 2017. Accordingly, it is submitted that the provisions of the Act have been met.

CA-00007523-003: The respondent submits that having furnished written terms and conditions of employment on the 17th of February 2017 it received correspondence from the complainant stating that there had been variation thereto. It invited queries and requested a meeting in the matter. The complainant has refused to engage since.

CA-00007523-004: The respondent refutes the assertion that it blamed the respondent for the technical issues arising from its dealings with the telecommunications provider, rather it expressed surprise at her refusal to deal with the matter which she felt was not within her remit. It strongly submits that it has always regarded the complainant as an employee.

CA-00007523-005: The respondent submits that the complainant has no automatic right to payment while absent due to illness. She has been absent sporadically since the commencement of the employment and has been paid for the occasional day of illness. She has never been paid in the past for extensive period of absence due to illness.

CA-00007523-006: The respondent submits that it provided a letter to the complainant on the 12th of October 2016 in response to a letter she had received from the HSE dated 22nd of September 2016.

In arriving at decision and recommendation as it relates to the various complaints herein I am conscious of the fact that the parties had a good relationship prior to July 2016. The complainant remains incapacitated presently with no immediate prospect of returning to work.

The cognisable period of complaint in respect of statutory entitlement dates backwards from 10th of October 2016. The complaint numbered CA-00007523-003 must fail where no written statement has been provided in accordance with s. 3 of the Act at the date of receipt of complaint by the WRC.

It would appear, that the respondent has exercised a certain degree of discretion in the past as it relates to payment while on certified sick leave despite its assertion that it has a non-payment policy. Consequently, it is reasonable to conclude that an implied term of contract for the payment of short term sick pay applies in circumstances where it would be unreasonable to imply that an open ended one existed. In recognition of that fact I will conclude that the complainant is entitled to payment for short term sick pay on completion of the normal protocols in the amount of 10 days per annum.

CA-00007523-002: The complaint is well founded and I hereby require that the respondent pay the complainant €1,000 (say one thousand euro) for breach of s. 3 of the Act.

CA-00007523-003: The complaint is not well founded.

CA-00007523-004: I recommend that the parties engage with a mediation provider when the complainant returns to work with the objective of restoring the working relationship if possible or alternatively to assist the parties in the severance of the contract.

CA-00007523-005: The complaint is well founded and I hereby require that the respondent pay the complainant €1,000 (say one thousand euro) net for breach of the Act.

CA-00007523-006: I recommend that the parties engage with a mediation provider when the complainant returns to work with the objective of restoring the working relationship if possible or alternatively to assist the parties in the severance of the contract.