ADJ-00003008

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00003008

Parties:

Complaint(s):

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

CA; 00004126-004 was withdrawn at the hearing.

CA-00004126-005 File was closed prior to the hearing.

Terms of Employment (Information) Act 1994

CA-00004126-001

Background

The respondent provides a range of facility services to clients on a contract basis. In this case the claimant commenced working for the respondent in 2006 and had, since joining the respondent, been assigned to a number of sites where the respondent has cleaning contracts. The contract of employment stated “you will be based at the cork Office. However, owing to the nature of its business, the respondent reserves the right to transfer you to other locations in Ireland in accordance with business requirements"

The claimant was working at a site in September 2015 on a temporary assignment at a client’s location as Site Manager. Unfortunately, due to ill health the claimant ceased working on the 19th October 2016 and remained absent from work until the 14th March 2017

The claimant maintaining that moving her off her site was a change in her terms and conditions of employment

Findings

I find that having examined the claimant's contract of employment the respondent had a right to transfer the client to various locations.

Decision

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.

I find that the complaint is not well-founded and falls

Payment of Wages Act 1991

CA-00004126-002

The claimant was fit to return to work and she was referred to the respondents Occupational Doctor for a return to work examination. On the 24th March 2017, the respondent received the medical report which provides no accommodation in the workplace or restrictions of her duties as necessary at this stage. The report hoped that the claimant could be supported in working as per her own tolerance in the early stages.

The respondent submitted that the claimant was not willing to make herself available to work on the sites she was offered and the site the claimant worked prior to going on sick leave.

The claimant is seeking payment for the period after she was declared fit to return to work.

Findings

I find that the claimant was deemed fit to resume work on the 14th to the March 2017. I find the respondent referred the claimant to their Occupational Doctor for a return work examination. A Report was issued on the 24th March 2016. I find that a meeting was arranged on the 29th March 2016 between the claimant and a respondent representative however the claimant cancelled the meeting.

I find that the claimant was afforded the opportunity to work on locations as per her contract of employment.

Decision

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.

Based on the evidence as I find that the claimant is entitled to be paid from the 14th to the 29 March 2016 a period of 2 weeks while the respondent was waiting on a report from the respondent’s doctor.

Safety, Health & Welfare Act 2005

CA-00004126-003

Background

The claimant went on sick leave in September 2005 subsequent to her diagnosis in June 2015. It was submitted that the claimant refused a return to work on the terms and conditions which existed when she went on sick leave. It was further added that she (claimant) has not been her contractual remuneration as current employee of the respondent despite being found capable of returning to work by the respondent’s independent assessor and the claimants expressed willingness to return to work. It was stated that the claimant was being punished for becoming sick and for taking the necessary action to preserve her own health and safety.

The respondent submitted that Section27(1) of the Safety, Health and Work Act refers to penalisation as including any “Act or omission by an employer or a person action on behalf of an employer that affects, to his/her detriment, an employee The respondent submitted that the claimant was not willing to make herself available to work on the sites she was offered and in particular, the site the claimant worked prior to going on sick leave with respect to any terms and conditions of employment”

It was submitted for there to be penalisation there are specific ingredients that have to exist, these being;

1. An act or omission by an employer or a person acting on behalf of an employer
2. These acts affect the employee to his/her detriment
3. It effects the employee with respect to any term or condition of his/her employment

The respondent submitted the case of O’Neill v Toni and Guy Blackrock Limited {2010}E.L.R 21, the court found that it was clear from the language of Section 27, of the 2005 Act that in order to make out a complaint of penalisation, it is necessary for the claimant to establish that the detriment of which he or she complaints was imposed “for” having committed one of the acts protected by Section 27(3) 2005 Act

The respondent submitted the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a Protected Act.

The respondent submitted in the first instance would maintain that being off sick is not a Protected Act in accordance with Section 27(3) as defined and in this case is accepted then the claimant cannot argue that any action by the respondent cannot be a penalisation under the act

It was further submitted that had the claimant taken up one of the positions offered, even if it had been under protest, she would have been paid

The respondent stated there has to be a very clear connection between the acts which the claimant maintains she is being penalised for and the penalisation. A combination of events is not sufficient in itself

Findings

Both parties made written and verbal submissions at the hearing.

Section 27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

 (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

 (b) demotion or loss of opportunity for promotion,

 (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

 (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

 (e) coercion or intimidation.

 (3) An employer shall not penalise or threaten penalisation against an employee for—

 (a) acting in compliance with the relevant statutory provisions,

 (b) performing any duty or exercising any right under the relevant statutory provisions,

 (c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

 (d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

 (e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

 (f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

 I find   that having examined all evidence as presented the claimant has failed to establish that she was penalised as a result of her being out sick or for refusing to attend one of the options as offered by the respondent

 Decision

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.

Based on the evidence as presented I find the claim is not well founded and falls.

 Date of Adjudication Hearing: 08/11/2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Dated:   21 February 2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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