ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009455
Complaint(s):
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-00011626-006 | 29/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00011626-007 | 29/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00011626-009 | 29/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00011626-010 | 29/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 | CA-00011626-011 | 29/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00011626-012 | 29/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00011626-013 | 29/05/2017 |
Date of Adjudication Hearing: 13/12/2017
Workplace Relations Commission Adjudication Officer: Gerry McMahon
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 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 complainant's employment as a part time employee as a sales advisor with the retail outlet commenced on 25 July 2016. From 23 October 2016 the complainant's contracted hours increased from 8 to 12 per week. On occasion during the complainant's employment, issues regarding her performance were raised. A decision was made to terminate the complainant's employment following a meeting on 17 January 2017. The complainant was provided with one week's notice and worked her last day on 23 January 2017.The complainant alleges that she was treated inappropriately and (as listed above CA-00011626-006-7 and 9 to 13) submitted 7 complaints (see below). |
Summary of Complainant’s Case:
The complainant’s application listed 7 areas of complaint under relevant legislation (see above - CA-00011626-006-7 and 9 to 13). The first pertained to the respondent’s failure to furnish a new contract when her hours were changed (seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994). The second pertained to an allegation of unfair dismissal (seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts). The third pertained to an allegation of bullying (seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts). The fifth pertained to an allegation that it was easier for her colleagues to swop shifts (seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001). In the course of the hearing the complainant stated that she did not know what the fourth, sixth and seventh complaints referred to. |
Summary of Respondent’s Case:
Complaint 1 (CA-00011626-006 - see Summary of Complainant’s Case above): The complainant was initially employed on an 8 hour contract, but regularly worked in excess of this. From 8 August to 20 October 2016 she worked on average 16 hours per week. On some weeks she worked up to 17 hours. She did not raise any grievance or concerns in relation to the additional hours. The complainant was verbally informed by her line manager in October 2016 that her contractual hours of work would be increasing from 8 to 12 per week effective from 23 October 2016. This was a reflection of the reality of the complainant's working hours which, from the commencement of her employment, regularly exceeded 8 hours per week. It is submitted that there was no changeto the complainant's working hours which from the outset were regularly in excess of 8 hours per week. Furthermore, the complainant was not only informed of the increase verbally (in advance of the increase), but also in writing by the deputy manager. It is common case that the complainant was informed of the increase by a Whatsapp message. This was acknowledged by the complainant in two of her supplemental letters to the Commission. It is submitted that this notice complies with the requirement for written notice under section 5 of the Terms of Employment (Information) Act 1994. It is also noteworthy that the complainant's contract of employment contains a clause entitled ‘Variations in Terms and Conditions’ which was adhered to. It was at all times open to the Complainant to raise an issue about the increase either informally or through the Company's grievance policy. Complaint 2 (CA-00011626-007 - see Summary of Complainant’s Case above): With regard to the allegation of an unfair dismissal, a number of issues arose regarding the complainant's performance during her employment that were addressed appropriately through informal one-to-one conversations with her line manager and she was issued with a number of ‘Record of Conversation’ documents in respect of some such discussions. As a result of the unsatisfactory performance and failure to improve, the respondent invited the complainant to a formal meeting by letter dated 9 January 2017. She was informed that a possible outcome of the meeting was the termination of her contract. The complainant was provided with advance notice of the meeting, which was scheduled for 17 January 2017 and took place on that date. The complainant was afforded the right to representation which she declined. During the meeting she confirmed that she understood the purpose of the meeting and was happy to proceed without a representative. The complainant was afforded a full opportunity to respond to the concerns regarding her performance. The complainant did not dispute the issues raised. As a result of the uncontested issues, a decision was made to terminate her temporary contract of employment with notice, effective from 24 January 2017. Complaint 3 (CA-00011626-009 - see Summary of Complainant’s Case above): With regard to the allegation of bullying, the complainant was not bullied as alleged in the course of her employment. She was treated fairly at all times. During her employment it became necessary to address various performance issues. These were addressed and regrettably there was no improvement. Meetings with her line manager were necessitated by the issues that arose during the complainant's employment and the line manager behaved appropriately at all times during these discussions. In line with relevant Codes of Practice, the respondent has a comprehensive ‘Dignity at Work’ policy which is contained in the Employee Handbook. The complainant received this at the commencement of her employment and a copy of the acceptance note that she signed upon receipt of the handbook has been included in the submission. It is the respondent's position that the complainant's line manager was required to repeatedly, but justly, inform the complainant of the issues regarding her performance.
Furthermore, at no time during the complainant's employment with the respondent did she raise a bullying complaint. The respondent respectfully suggests that it would have been appropriate for the complainant to engage with the appropriate procedures, exhausting all such internal mechanisms in respect of the subject matter of this complaint. The complainant has in fact acknowledged on various occasions that she was not bullied. The respondent is committed to thoroughly and fairly investigating any bullying allegations in accordance with its legal obligations and the obligations of any responsible employer and would have done so if the complainant had made allegations against any of its employees, including the complainant's line manager.
In the course of the hearing the complainant stated that she did not know what the fourth complaint (CA-00011626-010) referred to.
Complaint No. 5 (CA-00011626-011 - see Summary of Complainant’s Case above): With regard to the allegation that it was easier for her colleagues to swop shifts (seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001), and was treated less favourably than a comparable full time employee, the respondent denies this and noted that the complainant failed to set out the details of the alleged less favourable treatment. There were no such details. With regard to any allegation that the respondent failed to inform the complainant (a fixed-term employee) of opportunities for (a) permanent employment or (b) appropriate training opportunities, it should be noted that the complainant had access to information regarding vacancies within the company which were published as part of a newsletter, copies of which were kept at the tills and employees were encouraged to read the newsletters. She was also offered and provided with any training she requested throughout her employment. Section 10(2) of the Protection of Employees (Fixed-Term Work) Act 2003 provides that information provided by means of a general announcement at a suitable place in the undertaking or establishment is sufficient. It is submitted that the respondent discharged its obligation to inform the complainant of opportunities. Complaints Nos. 6 (see above CA-00011626-012) and 7 (CA-00011626-013) – not applicable (see Summary of Complainant’s Case above). |
Findings and Conclusions:
The complainant’s application listed 7 areas of complaint under relevant legislation (see above). The first (CA-00011626-06) pertained to the respondent’s failure to furnish a new contract when her hours were changed (seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994). It is common case that the complainant was informed of the increase. The second (CA-00011626-07) pertained to an allegation of unfair dismissal (seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts). With regard to the allegation of an unfair dismissal, a number of issues arose regarding the complainant's performance during her employment that were addressed. As a result of this unsatisfactory performance and failure to improve, the respondent invited the complainant to a formal meeting (by letter). She was informed that a possible outcome of the meeting was the termination of her contract. The complainant was provided with advance notice of the meeting and was afforded the right to representation. As a result of the uncontested issues, a decision was made to terminate her temporary contract of employment with notice. The third (CA-00011626-09) pertained to an allegation of bullying (seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts). In line with relevant Codes of Practice, the respondent has a comprehensive ‘Dignity at Work’ policy which is contained in the Employee Handbook. The complainant received this at the commencement of her employment and a copy of the acceptance note that she signed upon receipt of the handbook was submitted to the Commission. Notably, at no time during the complainant's employment with the respondent did she raise a bullying complaint or engage with the appropriate procedures\internal mechanisms on this mattter. The fifth (CA-00011626-011)) pertained to an allegation that it was easier for her colleagues to swop shifts (seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001). With regard to this allegation, the complainant failed to set out the details of the alleged (or any) less favourable treatment than comparable full-time employees. With regard to any allegation that the respondent failed to inform the complainant of opportunities for (a) permanent employment or (b) appropriate training opportunities, it should be noted that the complainant had access to relevant information. In the course of the hearing the complainant stated that she did not know what the fourth (see above CA-00011626-10), sixth (see above CA-00011626-12) and seventh (see above CA-00011626-13) complaints referred to. |
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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
CA-00011626-006 Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint. It is held that the complaint is not well founded. CA-00011626-007 Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint. It is held that the complaint is not well founded. CA-00011626-009 Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint. It is held that the complaint is not well founded. CA-00011626-010 Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s). It is held that the complaint is not well founded. CA-00011626-011 Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 requires that I make a decision in relation to the complaint(s). It is held that the complaint is not well founded. CA-00011626-012 Section 14 of the Protection of Employees (Fixed-Term Work) Act requires that I make a decision in relation to the complaint(s). It is held that the complaint is not well founded. CA-00011626-013 Section 14 of the Protection of Employees (Fixed-Term Work) Act requires that I make a decision in relation to the complaint(s). It is held that the complaint is not well founded. |
Dated: 22/03/2018
Workplace Relations Commission Adjudication Officer: Gerry McMahon
Key Words:
Probation; Dismissal; Bullying. |