Complainant

Respondent

Anonymised Parties

A Service Person

A Food Equipment Supplier

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-00015140-001

19/10/2017

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

CA-00015140-002

19/10/2017

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

CA-00015140-003

19/10/2017

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

CA-00015140-004

19/10/2017

The Complainant submitted four claims to do with the change in overtime pay, his statement of terms and changes thereto and a claim he was bullied and harassed.

The Complainant is employed as a Service Person from 1995 and continues to be employed by the Respondent.

He stated he did not receive a written statement of terms and conditions of employment as per Section 3.1. of the Act within two months of commencing employment in 1995. He also stated that he was not notified in writing in March 2009 within one month after a change took effect to his terms of employment in accordance with Section 5.1. (a) to do with a change in how overtime was to be paid. He stated there was a meeting of staff but that he was not invited and he never accepted the change. He made a claim under the Payment of Wages Act for non payment of overtime differential as a result of the change to overtime rates and finally he made a number of claims which he said constituted bullying and harassment.

The Respondent accepted that the Complainant had not received a written statement of terms within two months of him commencing employment as stipulated by the Act and it was not in a position to supply the Hearing with any evidence that it had notified the Complainant in writing of the change to overtime calculations but stated all staff present accepted the change at a general meeting due to a downturn in business due to the financial crash.

The Respondent stated that the Complainant was given a written statement of his terms and conditions of employment in January 2018.

The Respondent maintained that the Complainant had suffered no detriment due to this situation.

The Respondnet stated that, due to the financial crisis, all staff had accepted at a meeting in March 2009 to change the overtime rate to flat rate and that this was reinstated to time and a half by email (a copy was supplied) on December 1st 2015.

The Respondent denied any bullying and harassment took place.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/ dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

With regard to Claim reference no 00015140-001 under Section 6 of the Payment of Wages Act 1991it transpired that the claim was submitted on October 19th 2017 and the issue referred to was reinstated in December 2015. The claim was withdrawn at the Hearing.

With regard to Claim reference no 00015140-002 under Section 7 of the Terms of Employment (Information) Act 1994 the Respondent has accepted that it was in breach of the Act (which was brought in in 1994 a year prior to the Complainant commencing employment) by not providing the Complainant with a written statement of his terms of employment within two months of his commencement date. The Act allows an Adjudicator consider four remedies for this breach and the Adjudicator is cognisant that the Complainant did not make his complaint until over 20 years after his employment commenced and nearly ten years after the major disputed issue arose. The Respondent provided the Complainant with a statement of his terms in January 2018, albeit one he has issues with as outlined in another   claim in these decisions. Therefore overall, I find that while the Act has been breached, due to the length of time involved in the employment relationship prior to the claim being made and the fact that the Complainant has been supplied with his written terms, any award should be on the medium side of the options available to me and I award the Complainant 1,000 Euros for breach of Section 3.1 of the Act.

With regard to Claim reference no 00015140-003 under Section 7 of the Terms of Employment (Information) Act 1994 there was no evidence provided that the change to the oral or implied contract was notified in writing by the Respondent and this was a breach of 5.1. of the Act. However given that this breach took place nearly ten years ago and the breach was rectified by an email to the Complainant (and others) on December 4th 2015 I confirm that the complaint is well founded but see no need to add any further recommendation on this issue other than the amended term is to be included (if not already included ) in the Complainants Statement of Terms.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

With regard to Claim reference no 00015140-004 under Section 13 of the Industrial Relations Act 1969 I recommend that the Complainant set out, in as much detail as possible, the exact details of the alleged bullying and harassment and by whom and when. Once this document is received by the Respondent it should draw up Terms of Reference for an Independent Investigation into to allegations, to be agreed with the Complainant and his Representative, by a mutually agreed Third Party Investigator. Given the long standing nature of the issues the parties should consider in the Terms of Reference, although not a requirement of this Recommendation, to be bound by the findings of the mutually agreed Third Party investigation as this claim has been brought under the Industrial Relations Act and the parties need to find a solution to what appears to be an ongoing issue and given the very different positions of the parties a binding outcome may assist both parties.