Complainant

Respondent

Anonymised Parties

A Former Employee

A Former Employer

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00007402-001

29/09/2016

The complainant agrees with the general facts as outlined in the respondent’s submission. The complainant argues that the WRC does have jurisdiction to hear this complaint pursuant to Section 26 of The Organisation of Working Time Act, 1997.

Section 2 of The Act defines an employee as “employee means a person of any age who has entered into or works under ( or where the employment has ceased entered into or worked under)a contract of employment”

The complainant argues that the penalisation must not necessarily occur during the employment.

The legislation includes an employee who worked under it contract of employment. The complainant does not accept the argument that the employee must suffer a detriment during the employment. If an employee was restricted to claims that only occur during the employment then once employment was finished the employer could penalise the employee to their hearts content. This is not the basis of the legislation. An employee is entitled to pursue the case and the very fact of the correspondence which was sent by the respondent on the 31st of August is sufficient to bring her within the issue of penalisation.

The complainant was employed by the respondent as a waitress/ hostess/ secretary from 16th of September 2013 to the 21st of August 2015. On the 20th of October,2015 the complainant instituted a complaint under the Unfair Dismissal Acts, The Payment of Wages Act and The Organisation of Working Time Act. The complaint under the Organisation of Working Time Act was in relation to the respondents alleged failure to pay the complainant holiday pay and annual leave. On the 4th of March, 2015 those complaints were heard by the WRC. On the 18th of May 2016 a decision issued which upheld each of the complaints and ordered the respondent to pay the sum of €4,369.52 therein in respect of all three breaches. The respondent appealed the decision of the Adjudication Officer to the Labour Court on the 30th of August 2016. On the 31st of August 2016 the respondent wrote to the complainant informing her that he intended to make a complaint to an Garda Siochana about her behaviour whilst at work, if she did not abandon her complaints.

The respondent has since paid the to the complainant € 4.369.52 and that decision forms no part of the current complaint before the WRC.

On the 29th of September, 2016, over 12 months after the complainant’s employment had been terminated she filed a separate complaint pursuant to section 26 of The Organisation of Working Time, Act claiming penalisation.

The respondent argues that Section 26 effectively provides that if an employee refuses to cooperate with an employer in breaching the act he or she shall not be penalised by the employer. In Wicklow recreational Services Ltd V Mariniuk the Labour Court noted that penalisation was not defined in the act but added that the word was “generally accepted as meaning the imposition on an employee of some detriment in respect of his or her conditions of Employment for having asserted a legal right including the making of a complaint in good faith.” The court went on to observe that this involved in consideration of two questions:

First the employee must establish that he or she suffered a detriment to his or her conditions of Employment and secondly an Adjudication Officer or The Court of Appeal must be satisfied that the complaint was an operative reason for the imposition of the detriment.

The labour Court has ruled that in order to make out a complaint of penalisation under subsection (1) it is necessary for a complainant to establish a casual link between her activities in seeking to have section 19 of the Act applied by the respondent and some detriment which she suffered in her employment. Moreover the activities alleged to have given rise to the detriment suffered must relate to the complainant having opposed an act which was unlawful under the act.

In addition to the above argument it is submitted that the WRC has no jurisdiction to entertain this complaint because at the time of the alleged penalisation the complainant was not employed by the respondent. Under section 26 Olney an employer can penalize an employee. The employment relationship is a crucial ingredient in a penalization complaint.in August 2016 the complainant was not employed by the respondent and there are for the WRC has no jurisdiction to embark on an investigation or hearing of this matter.

Furthermore, the complainant must demonstrate that she has an employee has suffered a detriment in the context of her employment in order to demonstrate penalization.in the circumstances of this case the complainant did not suffer any detriment to her terms and conditions of employment by virtue of the alleged penalization given that he was not employed by the respondent at that time.

Finally it is submitted that the making of a complaint to an Garda Siochana is not rendered unlawful by the 1997 act and therefore section 26 one does not apply.

The parties requested that I determine this matter based on their submissions and correspondence. I have carefully considered the submissions lodged together with the correspondence before making a decision on the matter.

Section 26 (1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act.

(2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts

The activities alleged to have given rise to the detriment suffered must relate to the complainant having opposed an act which was unlawful under the Act. The activity alleged to have given rise to the detriment in this case is the sending of the letter dated the 31st August, 2016 wherein it states,” I would like to give you this final opportunity to withdraw your claim in writing to us and also through the channels of the Labour Court. If you still decided to continue with your claim, please note that we will unfortunately be forced to raise a Garda prosecution against you ……”

I note that the complainant was not the appellant in the appeal. The respondent has a right in law to appeal the decision of the WRC to the Labour Court. Furthermore, the Respondent has a right to make a complaint to the Gardai and thereafter it is up to the Gardai or the DPP whether to progress the matter further and ultimately is for the Courts to decide the matter. In those circumstances there is no unlawful act which the complainant could have opposed.   It is for that reason I find that the complaint fails.