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-00013793-001

06/09/2017

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

CA-00013793-002

06/09/2017

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

CA-00013793-003

06/09/2017

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

CA-00013793-004

06/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00013793-005

06/09/2017

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

CA-00013793-006

06/09/2017

The complainant is a Polish national and the respondent is a chain of grocery shops catering mainly for the Polish community.

Four of the complaints are made under the Organisation of Working Time Act; complaints CA-00013793-001 relates to failure to provide breaks, 002, public holidays, 003, relates to her rosters and 006 to penalisation under that Act.

CA-00013793-005 is a complaint that she was unfairly dismissed but is taken under the Industrial Relations Act and CA-00013793-004 is that she was not provided with a statement under the Terms of Employment (Information) Act.

The complainant says that she had to leave her employment because the conditions imposed by the respondent made it impossible for her to work. Her hours were cut and she was required to work while she was sick.

She submitted her letter of resignation because she was suffering from stress.

She was not given breaks even when she worked very long twelve-hour shifts. She would be told that there was no replacement available.

The complainant responded to timesheets produced by the respondent which shows her having signed to indicate that she had been given breaks that these ticks were added after she signed them.

She says that she did not get payment for public holidays in respect of December 25th and 26th, January 1st and May 1st.

The respondent says that it did not dismiss the complainant but that she resigned from its employment.

On July 20th 2017 the complainant was spoken to by a manager about the use of her mobile phone at work. It was explained to her that this was contrary to Shop Rules which were clearly displayed on the premises and which also form part of the contract of employment.

She was given an oral warning but responded that it was a breach of her rights not t be able to use the phone.

She finished her shift that day but did not attend for work the following day and told the respondent she was sick.

She did not attend the following day either without any explanation but called to the premises that evening to hand in her resignation.

Therefore, no dismissal took place.

Regarding the complaint under the Terms of Employment (Information) Act, these were due to have been given to her but when they were observed to be missing from her file seven months into her employment they were provided at that stage. A signed copy was submitted in evidence.

Regarding rest breaks the respondent says that this is a matter left to the employees to work out between themselves, subject only to there being sufficient cover to meet business needs. This means that only one employee at a time can take a break.

The cognisable period for the complaint is March 7th to September 6th. The respondent produced evidence of Time sheets for the period which bore the complainant’s signature and which include a ‘tick’ to indicate that the complainant got her break.

At no stage did the complainant ever raise a complaint about her breaks and her submission that the ‘ticks’ were added subsequently lacks credibility.

Regarding the notice of working arrangements rosters were posted on a Saturday for the following week commencing Monday. Twenty-four hours’ notice was always given. Again, the complainant never complained about any aspect of her roster while an employee.

It is true that occasionally the complainant would be required to work extra hours at short notice to deal with deliveries of stock and unloading where delivery truck travelling from Poland was delayed. However, such unforeseen circumstances are provided for by Section 17 (4) of the organisation of Working Time Act.

Direct evidence was given by the complainant’s manager contradicting her assertion that the record of her having taken breaks was added after the complainant signed them.

In relation to the complaint of penalisation the respondent submits that the complainant never made any original complaint, in response to which the respondent’s actions might be seen as retaliation.

She complains now that her working hours were cut but the records of the business confirm that her hours were cut other than by a small amount in June but only by a few hours.

The complainant submitted at the hearing that she had to leave her employment because her working conditions ‘did not allow her to work’. She gives as examples failure to provide breaks, having to work long hours without sufficient notice, inadequate notice of rosters.

She adds a complaint of penalisation in respect of having made, (according to the complaint form) verbal and written complaints about breaches of the organisation of Working Time Act.

The respondent offers a quite different narrative in relation to an oral warning which was given two days before the complainant resigned, and which it says was the decisive reason for her departure from its employment.

Towards the end of the hearing an objection was made on the complainant’s behalf (by her husband who was in attendance) about the quality of the translation service, and she made a subsequent complaint in writing. In that she stated that she ‘could not understand at least half the conversation’.

She also complained, oddly, about the interpreter not being in attendance. In fact, he was but was unsure at the commencement of the hearing about where he should locate himself and was initially sitting with the respondent. At the Adjudicator’s request, he moved initially to sit with the Adjudicator and then by the complainant to assist her not just with oral translation but with documentation.

Nonetheless, such an objection needs to be considered seriously and I have done so in the context of the overall proceedings at the hearing.

Tellingly, at no stage during the hearing did the complainant herself ask for clarification on any point in the discussion or give any indication she was experiencing difficulty in understanding the proceedings. Although the translator did need some assistance with a number of technical terms, the complainant raised no issue about her comprehension of the evidence in the course of the hearing or seek additional assistance.

She responded on one occasion in English to a question. (Her complaint to the WRC after the hearing was in English).

Accordingly, I am of the view that the complainant was sufficiently aware of the respondent’s case that her rights to a fair hearing were not affected. In my opinion, she had a very clear understanding of the respondent’s case, which turned on a few relatively simple facts. There was no complicated legal argument and the complainant was, as might be expected, fully familiar with the key events in the case.

This is borne out by some of what follows below.

Much of the complainant’s evidence was not credible; (exceptions are the complaint under the Terms of Employment (Information) Act and her claim for public holidays.

The circumstances of her resignation do not remotely ground a case of constructive dismissal and it is vexatious. The direct and proximate connection to the disciplinary action, albeit a first level, oral warning directly triggered her resignation. It is impossible to conclude otherwise.

She made no complaint under the Act which would activate the penalisation provisions of the Act.

Her failure to ever raise any of the matters of which she now complains, taken with her allegations that the respondent altered the time sheets she signed all combine to undermine the credibility of her complaints.

She could offer no evidence (in response to a direct question) to explain how her hours had been cut and the evidence provided by the respondent persuasively contradicted the claim. Even if, as she asserted, the breaks were ticked as having been given after she had signed the time sheet, (which I do not accept) there was no evidence that she even raised the absence of breaks when she was signing them; surely the obvious opportunity to do so.

I accept her complaint that the respondent did not provide her with the statutory statement under the Terms of Employment (Information) Act, 1994 within the required time limits and that she did not receive compensation for four public holidays.

(The complainant’s hours varied considerably. For the purposes of my awards below I have assumed a thirty-five hour week and a wage of €10 per hour.)

The following complaints under the Organisation of Working Time Act; CA-00013793-001, 003 and 006 are not upheld.

Complaint CA-00013793-002 is upheld in relation to her Public Holiday entitlement and I award her four days’ pay in the amount of €280.

CA-00013793-005 under the Industrial Relations Act is not upheld.

I uphold CA-00013793-004 that she was not provided with a statement under the Terms of Employment (Information) Act and award her one week’s pay in the amount of €350.