ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00008398

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 CA-00011375-001 17/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00011375-002 17/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00011375-003 17/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00011375-004 17/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00011375-005 17/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00011375-006 17/05/2017  

Date of Adjudication Hearing: 06/09/2017

Workplace Relations Commission Adjudication Officer: John Tierney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Protected Disclosure Act 2014, and/or section 28 of the Safety, Health & Welfare at Work Act 2005, and/or Organisation of Working Time Act 1997, and/or Payment of Wages act 1991, and/or Terms of Employment (Information) Act 1994] 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).  

Background:

The Claimant has made multiple claims against the Respondent (see above).

Summary of Complainant’s Case:

The claimant stated that she was dismissed on 8 December 2016 by letter without notice. The reason cited was ‘refusal to attend training’. The letter claimed that training was scheduled for three times. The dismissal is unfair because the Respondent did not use any disciplinary procedure or gave any opportunity to rebut the alleged offence. On 28 August, the Claimant made a Protected Disclose concerning a client and a fellow employee. She outlined in detail the background to this issue and the subsequent harassment she incurred. The Claimant also claimed penalisation under the Safety, Health & Welfare at Work Act for communicating concerns to the Respondent regarding the safety and welfare of individuals including clients and herself. Details of these events were presented in detail to the Hearing. When her employment was terminated, she was owed €1,159.49 for holiday pay. She received a pay slip for this amount but only €500.00 went into her bank account. She did not receive payment of notice when her employment was terminated. She did not receive a proper contract of employment as the wrong employer’s name was on the one she received and she was given the wrong handbook.  

Summary of Respondent’s Case:

The Claimant was employed by the Respondent on 15 July 2015 working on a variable contract. She was issued with an employee handbook, carer manual and completed a two-day training course for which she signed off on. In regard to the claim of penalisation, the Respondent denied the allegations. At no time was the word protected disclosure used until after her disciplinary hearing which was on 4 October. Each and every correspondence from her was checked with the client and next of kin. In a letter of 26 October 2016 regarding her disciplinary she named no individuals of wrong doing. This letter was not sent under Protected Disclosure but again all issues were reviewed by the service team with the clients. With regard to the unfair dismissal claim this is null and void as she originally submitted this prior to the termination of her contract on 14 November 2016. She was still an employee at this time. In November 2016, she made a complaint of unfair dismissal (ref. CA 8035) as she was still an employee at this time and was due to attend training, the Respondent believed she had no intention of returning to work and deliberately mislead they of her intentions. She refused to attend training several times. She was advised as an employee she would have to attend and would be paid. She did not attend and did not contract anyone to advise otherwise. At this point it was believed that she was deliberately making herself unemployed. She was advised by letter that due to failure to attend training her employment was terminated. The Respondent denies the Health & Safety allegations. The Claimant was invited to discuss her concerns to see if they could be resolved locally but she declined to attend such a meeting. In regard to her claim for holiday pay. Her employment was terminated on 8 December. She had an entitlement of 93.43 hours’ annual leave. She was issued with a payslip on 9 Dec showing a net payment of €1,199.49 for this entitlement. Equally so in the matter of notice she was requested to send her bank details but declined preferring to wait for this Hearing The Claimant was provided with written terms of employment on 20 August 2015 and acknowledged receipt on 24 August. The Respondent stated that the Claimant did allow them the opportunity to resolve any concerns with her. She believed her actions were beyond question. She went above and beyond her remit in caring for client and against all protocols. The Respondent followed their disciplinary process at all times.

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. [Protected Disclose Act 2014, Safety, Health & Welfare at Work Act 2005, Organisation of Working Time Act 1997, Payment of Wages Act 1991 Terms of Employment (Information) Act 1994 Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. Terms of Employment (Information Act 1994 Payment of Wages Act 1991 Organisation of Working Time Act 1997 Safety, Health & Welfare at Work Act 2005] I have considered the submissions made by both parties. There is a complete conflict of evidence in this case. I therefore have decided on the balance of probability that I prefer the evidence presented by the Respondent. I also, accept that the Claimant did not allow the Respondent the opportunity to resolve any concerns the Claimant had. I further accept that the Claimant went above and beyond her remit in her job and against all the protocols required in her day to day work. I do not find her claims well founded and they fail. The following decisions are made on each of the claims; CA 11375-001 Claim fails CA11375-002 Claim fails CA11375-003 Claim fails CA11375-004 Claim fails CA11375-005 Claim fails CA11375-006 Claim fails

  Dated:   23.01.2018

Workplace Relations Commission Adjudication Officer: John Tierney