Complainant

Respondent

Anonymised Parties

A Cleaner

A Government Department

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-00014617-002

28/09/2017

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

CA-00014617-004

28/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00014617-005

28/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00014617-006

28/09/2017

The Complainant worked as a cleaner for the Respondent since December 1992. She complains that she was subjected to bullying and contends that the Respondents breached her employment rights under Terms and Conditions of Employment Act 1994, the Employment Equality Act 1998 and the Protection of Employees (Fixed-Term Work) Act, 2003 as cited in the heading to these proceedings.

The Respondent denies all complaints and submits that they are out of time.

1.       The present complaint was instituted on 28 September 2017.

2.       Complainant contends that she did not receive a contract or a statement in writing of her terms and conditions of employment from the start of her employment in 1992 until October 2012

3.       The Complainant contends that she was not given paid holidays between 1991-1997 and brings this complaint under the Terms and Conditions of Employment Act 1994

4.       The Complainant contends that the Respondent discriminated against her on grounds of her civil status by allowing clerical officers with whom she worked to be transferred to Dundalk automatically but not her. This occurred in 2009. She also contends that the Respondent allowed her to be subjected to a bullying environment where her co-worker was afforded more favourable terms and conditions although this is not on grounds of civil status. The Complainant believes that the reasons that her co-worker was treated more favourably than she was, was because the co-worker had a friendship with their line manager and also because the co-worker’s husband had an ongoing dispute with the revenue.

5.       The Complainant contends that the Respondent penalised her because when she sought a contract of indefinite duration she was subjected to sanction. However, at the hearing this complaint was amended to be that a dispute arose between the Complainant and her co-worker whereby she believed that the co-worker had misappropriated eleven pay sips from a locked drawer, that they shared. Following which the Respondent failed to deal adequately with the complaint that she made, her work became impossible because even though her co-worker did a 22-hour shift and the Complainant only did a 10 hour shift, the co-worker would not work unless the Complainant was also working which meant that they shared the work load on a 50%/50% basis even though the Complainant was working less than half the hours that her co-worker was working.

In respect of each of the complaints the Respondent contends as follows:

1.       Terms and Conditions of Employment Act 1994

At the time of the commencement of her employment in 1992 the 1994 Act was not in force. A written contract was issued to the Complainant in October 2012 therefore since that time it cannot be argued that there has been a breach under this Act. The complaint must be brought within 6 months of the contravention and consequently the complaint is out of time.

2.       Terms and Conditions of Employment Act 1994

In relation to holiday claims from 1991-1997, the complaint is not well founded under the Terms and Conditions of Employment Act 1994. Despite this, attempts have been made to remedy historic breaches in relation to public holiday entitlements which occurred in the 1990s. The complaint is out of time.

3.       The Employment Equality Act 1998

The substance of the complaint is not one based on any allegation of a breach under the Equality legislation. This complaint is misconceived and no evidence has been led to show that there was discriminatory treatment of her based on her civil status. The events complained of relate to issues of bullying which were raised by the Complainant in May 2012 and therefore this complaint too is out of time.

4.       Protection of Employees (Fixed-Term Work) Act, 2003

The complaint form states that because the Complainant sought a contract of indefinite duration she was penalised. At the adjudication hearing this complaint was amended to be a different complaint (also raised under the equality complaint) namely that she was bullied by a co-worker, that she was stolen from by this co-worker, she was forced to work equal amounts of work even though her hours were less than half of that of her co-worker and despite bringing these complaints to the Respondent’s attention, the response was inadequate.

5.       In relation to the complaint of penalisation on the complaint form, the Respondent says that at all times the Complainant was on a contract of indefinite duration and that consequently this complaint is not well founded. In relation to the amended complaint aired at the hearing the Respondent contends that these are not a matters which are subject to the remedial provisions of the Protection of Employees (Fixed-Term Work) Act, 2003

At the outset I should state that this complaint originally included a complaint under section 13 of the Industrial Relations Act 1969 however as the Respondent objected to this complaint on the basis that the Complainant is not a worker within the meaning of section 23 (1) being a person “employed by or under the State” this complaint was closed and the complaint continued under three enactments namely:

The Terms and Conditions of Employment Act 1994; the Employment Equality Act 1998 and the Protection of Employees (Fixed-Term Work) Act, 2003. I propose to deal with each of these complaints in turn.

Terms and Conditions of Employment Act 1994

The first complaint under this act is that from December 1992 until October 2012 the complainant did not receive a written statement of her terms and conditions of employment. This complaint was brought in September 2017. In the six months prior to September 2017 there was no breach under this Act, nor had there been since October 2012. Consequently, this complaint fails for being out of time

Terms and Conditions of Employment Act 1994

This relates to a claim for holiday pay and relates to a period of time between 1991-1997 when the Complainant contends she did not receive holiday pay. This complaint is not properly brought under the correct Act, the Organisation of Working Time Act 1997. This complaint is also out of time as it relates to a period of time in the 1990s. Therefore, this complaint is out of time.

Employment Equality Act 1998

The Complainant’s complaints are primarily bullying complaints which do not arise under the Equality legislation, unless they attach to bullying which occurred in the context of a prohibited discrimination. The reason cited by the Complainant for the more favourable treatment meted out to her co-worker as compared to herself does not ground a charge of discrimination based on civil status. The reasons that the Complainant believed that her co-worker was treated better was because she had a close friendship with their line manager and also because her co-worker’s husband had an ongoing revenue investigation. Neither of these reasons ground a claim for discrimination and I therefore find that no prima facie case of discrimination has been proven. Furthermore, this complaint is out of time as it relates to events outside the six months immediately preceding the bringing of this complaint. I therefore find this complaint to be not well founded.

Protection of Employees (Fixed-Term Work) Act, 2003

The basis of this complaint was abandoned at the adjudication hearing and an alternative complaint was made under this Act. This relates to bullying complaints and the alleged failures of the Respondent to adequately investigate these.   I do not find any evidence to support the claim either that she was penalised for requesting a contract of indefinite duration (because she was always a permanent employee) or that by their failure to deal with her bullying complaint, she was penalised within the meaning of Protection of Employees (Fixed-Term Work) Act, 2003. Consequently, I find this complaint to be not well founded.

It is regrettable that the Complainant did not have access to advice on these complaints prior to instituting these proceedings.