Complainant

Respondent

Anonymised Parties

An employee

A contract cleaning company

Representatives

Marius Marosan

A manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00015086-001

17/Oct/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015086-002

17/Oct/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015086-003

17/Oct/2017

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

CA-00015086-005

17/Oct/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015086-006

17/Oct/2017

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

CA-00015086-007

17/Oct/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00015086-008

17/Oct/2017

The Complainant commenced employment with the Respondent on 26/09/2015 and left on 04/05/2017, she was employed as a cleaner. Her working hours were 35.5 hours per week, eight of these hours were spent cleaning the home of the Respondent Managing Director for which she was paid at the rate of €12 per hour.

The Complainant had initially made seven complaints to the Workplace Relations Commission, two complaints were withdrawn at hearing: CA – 00015086 – 003 (paid holiday / annual leave entitlement) and CA – 00015086 – 006 (compensation for working on a Sunday).

The five remaining complaints are as follows:

1.       CA – 00015086 – 001 – Non- compliance with Employment Regulation Order, Contract Cleaning.

2.       CA – 00015086 – 002 – Weekly rest periods – breach of Organisation of Working Time Act, 1997.

3.       CA – 00015086 – 005 – Bullying and Harassment Procedures – S13 Industrial Relations Act, 1969.

4.       CA – 00015086 – 007 – No payment in lieu of notice – referred under the Payment of Wages Act, 1991.

5.       CA – 00015086 – 008 – Unfair Dismissal – referred under s.8 Unfair Dismissals Act, 1977.

The Complainant vis her representative verbally made a complaint as follows:

CA – 00015086 – 001 – Non- compliance with Employment Regulation Order, Contract Cleaning.

As per the WRC complaint form the Complainant states that she will provide more detail in her submission.

CA – 00015086 – 002 – Weekly rest periods – breach of Organisation of Working Time Act, 1997.

It has been accepted by the Respondent that breaches did take place. It is the Complainant’s position that she worked seven days per week for a period of at least one year.

CA – 00015086 – 005 – Bullying and Harassment Procedures – S13 Industrial Relations Act, 1969.

It was alleged by the Complainant that when the new supervisor arrived at the site things changed. The Complainant alleges that she was given more work to do and that she was not given any extra time in which to complete these new tasks. The Complaint alleges this was the cause of stress to her and it was at this time she was involved in a workplace accident, she banged her head and was missing from work for a short time.

CA – 00015086 – 007 – No payment in lieu of notice – referred under the Payment of Wages Act, 1991.

The Complainant alleges that she should have been paid her notice period. When she resigned on 15th May 2017. The p45 issued to the Complainant is dated 04/05/2017.   The notice as per the Complainant is one week which would result in her leaving employment on 22nd May 2017.

CA – 00015086 – 008 – Unfair Dismissal – referred under s.8 Unfair Dismissals Act, 1977.

By the p45 issued containing the cessation date of 04th May 2017 the Complainant is alleging that she was dismissed as she did not tender her resignation until 17th May 2017.

CA – 00015086 – 003 – Paid Holiday / Annual Leave entitlement.

Complaint withdrawn.

CA – 00015086 – 006 – Sunday premiums.

This complaint was withdrawn.

CA – 00015086 – 001 – Non- compliance with Employment Regulation Order, Contract Cleaning.

The Complainant commenced employment on 26th September 2016 and the Respondent feels that it is noteworthy at the time the employee commenced employment there was no Employment Regulation Order (ERO) in place at that point. The employee was initially issued a casual contract of employment on commencement. The Respondent company commissioned a HR Company to draft and issue new contracts based on best practice and these were issued to all employees in March 2017, the Complainant received and signed a copy of her contract and a copy of this is attached to the Respondent’s submission.

CA – 00015086 – 002 – Failure to provide weekly rest periods.

The Complainant is arguing that she did not get her 24-hour weekly rest period for the final year of her employment and although it is regrettable that this is true, the Supervisor at the time was under the impression that the Complainant wanted to work as many hours as she could and she often took on extra work when it was available. Unfortunately, in order to give the Complainant, the most amount of hours that was available to her, her schedule did not allow for a 24-hour rest period in a seven day reference period.

CA – 00015086 – 003 – Paid Holiday / Annual Leave entitlement.

Complaint withdrawn.

CA – 00015086 – 005 – Bullying and Harassment.

The Complainant is alleging that she was being bullied by her supervisor (name supplied).

The Respondent strongly argues on the strongest possible grounds that at no time during the Complainant’s employment was she subjected to bullying from her supervisor. In October 2016 the Complainant’s original supervisor resigned from the Respondent business and was replaced by the present incumbent, who is being accused of bullying and harassment. Following a decline in standards the supervisor was tasked with the responsibility of boosting standards in line with the Company’s reputation. The Respondent feels it noteworthy that the Complainant did not outline a comprehensive statement with specific dates and instances of bullying. The Respondent denies any allegations of bullying leading to work related stress.

At no point since she commenced employment until the date of her resignation did the Complainant raise any issues or allegations of being bullied.

The definition of bullying, which is outlined in the Company’s robust and comprehensive dignity at work policy in the Company’s employee handbook is as follows: “Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work”. This definition was adapted from the Supreme Court case of Ruffley v Board of Management of St Anne’s School.

The new employee handbook was rolled out to all staff via email on April 10th 2017 after the Company instructed a HR Consultancy firm to create one in line with best practice and procedures. The Supreme Court judgement found that in order to constitute bullying the behaviour of an individual “must be outrageous, unacceptable, and exceeding all bounds tolerated by decent society”. It is the Company’s stance that her Supervisor’s behaviour towards the complainant does not fit the definition of bullying as outlined above as all communication made between the complainant and her Supervisor was courteous. If there were ever any issues, they were objective issues relating to the standard of cleaning and not directed only at the complainant but at the cleaning team as a whole. The court also found that instruction, direction and even, on occasion, robust management, are all necessary in a workplace to ensure efficiency, that the work gets done, and health and safety in the workplace is maintained.

The Company would further argue that the complainant was fully aware of the grievance procedures and bullying and harassment policy, not only because the employee handbook was issued to all staff as outlined, but also because the procedures were outlined in her Contract of Employment which she was issued in March 2017.   The Company argues further that the employee did read the contract of employment in April 2017 as a text was sent to her Supervisor from the complainant pointing to a clause relating to public holiday pay. If the employee was aware of the public holiday clause in the contract, it is therefore reasonable to assume that she was aware of the grievance procedure and bullying and harassment rules and procedures.

The Complainant states that the alleged bullying at the hands of her supervisor led to illness caused by stress. The Respondent again reiterates that at no point was the Respondent made aware of any issues or complaints of bullying and was never furnished with any medical certificates outlining any illness because of work related stress.

CA – 00015086 – 006 – Sunday premiums.

This complaint was withdrawn.

CA – 00015086 – 007 – Payment in lieu of notice.

It is the Respondent’s position that the Complainant was not dismissed but rather resigned from her position in the Respondent company as per her letter of resignation. There is no legal requirement for a Company to pay notice to an employee when the employee has resigned. It is also the Company’s stance that the resignation did not amount to constructive dismissal.

CA – 00015086 – 008 – Unfair Dismissal.

The Respondent company vehemently denies that the Complainant was dismissed from the services of the Respondent company. It is the Respondent’s position that the Complainant decided to leave the job. If the Complainant is claiming that the acceptance of the resignation amounts to constructive dismissal, it is noteworthy that no formal statement was submitted by the Complainant outlining her case with proof.

Conclusion

In a case where the employee refuses to fully engage with the Company’s internal grievance procedures and bullying and harassment policies, the burden of proof falls on that employee to prove that the employer acted so unreasonably that it left the employee no choice but to resign. It is clear however that the complainant did not exhaust all internal avenues available to her to help resolve either the bullying or constructive dismissal complaints. At all times, the Company denies that the complainant was dismissed and therefore was not entitled to payment in lieu of notice.

With regards to the payment of annual leave and Sunday premiums, the Company has acknowledged its breaches here and has proactively taken steps to resolve the issues by arranging arrears payments, which was facilitated through the WRC.

In relation to the complainant not receiving a 24-hour rest break per week, the Company again acknowledges the breach of the Organisation of Working Time Act, 1997 but strongly argues that the employees wish to work the most number of hours available to her was the reasoning behind her work schedule and in the absence of a complaint, believed that the employee did not have an issue with the arrangement.

CA – 00015086 – 001 – Non- compliance with Employment Regulation Order, Contract Cleaning.

No evidence was presented at the hearing that would substantiate that the Respondent is in breach of the terms of the Contract Cleaning Employment Regulation Order. This complaint therefore fails.

CA – 00015086 – 002 – Weekly rest periods – breach of Organisation of Working Time Act, 1997.

Section 13 (2) of the Act reads as follows:

Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that the period is immediately preceded by a daily rest period.

Section 27 (3) states:

A decision of a Rights Commissioner under subsection (2) shall do one or more of the following:

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the of the employee’s employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

CA – 00015086 – 005 – Bullying and Harassment Procedures – S13 Industrial Relations Act, 1969.

Having considered everything said at the hearing I would have to accept the version of events presented by the Respondent.

This part of the complaint fails.

I do not like the wording of the supervisor’s text dated Wednesday 12th April that reads as follows:

“Hi girls, this will be the last time when I will tell you that first time when you arrive you need to do little picking around the building. Chris was very angry today as the place is not looking good. The toilets are not good again, so I see that the standards are dropped and I won’t accept this. If you don’t keep up the standards you will be moved. Take this as a last warning. Thanks Anca”.

In light of the above I would recommend that the Respondent arranges a training programme for all supervisory staff on the subject of good management practice that would include the basics of employment legislation.

CA – 00015086 – 007 – No payment in lieu of notice – referred under the Payment of Wages Act, 1991.

The Respondent’s position on this is correct. There is no legal requirement on any company to pay a notice period where the employee has tendered his / her resignation. In this instant case the Complainant tendered her resignation on 15th May 2017 and such notice expired on 17th May 2017, on both dates the Complainant was on annual leave. This part of the complaint fails.

CA – 00015086 – 008 – Unfair Dismissal – referred under s.8 Unfair Dismissals Act, 1977.

The Complainant was not dismissed, she tendered her resignation on 15th May 2017.

A P45 was issued with an incorrect cessation date. As the Respondent has explained this was an administrative error and I accept this explanation. This part of the complaint fails.

CA – 00015086 – 002 – Weekly rest periods – breach of Organisation of Working Time Act, 1997.

The Complainant was working 7 days per week for a period of one year. This is a blatant breach of Section 13 of the Act and accordingly the complaint is well found.

I award the Complainant compensation of €2,000.

OWT – Weekly rest periods.