ADJ-00010976

Complainant

Respondent

Anonymised Parties

An Employee

A Retail Company

Representatives

Lorraine Lally Lawlibrary Dublin

Noreen Coyne People Matters

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00014539-001

27/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00014539-002

27/09/2017

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

CA-00014539-003

27/09/2017

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

CA-00014539-004

27/09/2017

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

CA-00014539-005

27/09/2017

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

CA-00014539-006

27/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00014539-007

27/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00014539-010

27/09/2017

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

CA-00014539-011

27/09/2017

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

CA-00014539-013

27/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00014539-014

27/09/2017

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

CA-00014539-015

27/09/2017

The Complainant commenced employment, as a shop assistant, with the Respondent on 1 April 2011. Her working week consisted of an average 10-39 hours per week.

Background:

According to the Complainant, in April 2014 she made a complaint regarding the way she was being treated in the workplace. The Complainant states that, while management claim to have no records of this complaint, she was informed by the Manager, at the time, that the employees she complained about were issued with warnings, which would stay on their personnel files for six months.

The Complainant stated that she received a pay increase in October 2016, which was accompanied by a letter advising that the Respondent was very pleased with her work ethic and commitment.

Incident - 7 November 2016:

According to the Complainant, on 7 November 2016, there was a staff meeting in the workplace. The Complainant states that during this meeting the Shop Manager advised that even for a period of one hour she (the Complainant) was required to be flexible and have a childminder available in order to be in a position to provide cover in the shop at short notice. The Complainant further stated that she was advised that she would face disciplinary action and be fired if she was not able to come to work during her days off.

The Complainant stated that she was very upset with this situation as she felt it was interference with her family and private life. She further stated that the Shop Manager and another employee started listing out people who could mind her (the Complainant's) children if she needed to come to work at short notice. The Complainant stated that she was very upset and wanted to leave the meeting. However, she stated that the Shop Manager blocked the exit and did not allow her to leave. According to the Complainant, the other employee grabbed her by the shoulders and was screaming at her.

According to the Complainant, she was upset, shocked and humiliated by what happened. She also stated that, as a result of what had happened, she felt she was not safe at work anymore and reported the incident to the Gardaí. The Complainant further stated that she attended her GP the following day and was on certified sick leave, being treated with antidepressants, from 8 November to 13 December 2016.

The Complainant stated that a colleague, who spoke up for and tried to defend her (the Complainant) at the meeting on 7 November 2016, began to receive adverse treatment from the Shop Manager and the other employee involved. The Complainant stated that as a result of this her colleague made a complaint.

Complaint of Bullying and Arrestment:

According to the Complainant's evidence, as a result of the meeting on 7 November 2016, she sought external representation in relation to her situation. The Complainant further stated that, on 5 December 2016, her representative submitted, to the Respondent, a complaint of bullying and harassment, against the then Shop Manager. According to the Complainant, a Data Protection Access Request and a statement of physical assault were also submitted.

The Complainant stated that she received a letter from the Respondent, on 20 December 2016, stating that they had no record of her first complaint and that the most recent complaint would be investigated in the New Year (2017).

Return to work following Sick Leave:

According to the Complainant, she was certified fit to return to work from 14 December 2016. The Complainant further stated that she should have been allowed back to work, as usual on Thursday 15 December and have been provided with 19 hours work in that week. However, the Complainant stated that she only works 4.5 hours in that week.

The Complainant further stated that after her return to work following her sick leave, she was rostered to work every Saturday and Sunday, with the Sunday work comprising of a two-hour shift to cover her colleague’s breaks.

Display of Avon catalogues in the shop:

The Complainant stated that, on 3 January 2017, while she was on a day off, a colleague of hers was instructed to remove Avon catalogues which she (the Complainant) had left in the shop. The Complainant stated that her colleague was further instructed to advise her that she was banned from displaying these catalogues in the shop in the future. However, the Complainant stated that she never received this instruction in writing.

The Complainant explained that staff and customers were always allowed to leave various advertising material in the shop. She further stated that, since the beginning of 2015, she had permission, from management, to display Avon catalogues in the shop. According to the Complainant, these catalogues were displayed in the shop for only 3/4 days per month.

The Complainant stated that, on 5 January 2017, as a result of her being banned from displaying the catalogues in the shop, she placed a post on her private Facebook page, which had been set up for her Avon clients, informing them that, from now on, the catalogues would not be available in the shop.

According to the Complainant, on the evening of 5 January 2017, she received a call from a member of management demanding that she remove the Facebook post and advising her that if she did not do so, she would face disciplinary action.

Investigation of bullying complaint and Respondent's first allegation of Gross Misconduct:

The Complainant stated that, four days after she had placed the Facebook post, she received a letter from the Respondent inviting her to an investigation meeting on 18 January 2017. According to the Complainant, the purpose of the meeting was to investigate her allegations of bullying, as submitted by her on 5 December 2016 and the possible gross misconduct as evidenced by the Facebook postings of 5 January 2017.

The Complainant stated that she attended the meeting on 18 January 2017, in the company of her representative. The meeting was also attended by an external HR Consultant, who was conducting the investigation, and by the Respondent's CEO.

According to the Complainant, during the meeting, her representative issued two letters to the Respondent. The Complainant stated that the first of these letters indicated that while her original complaint of bullying was made on 5 December 2016, additional issues had arisen subsequent to that date and that they were requesting to have these issues included in the investigation. According to the Complainant, the additional issue consisted of a reduction in her working hours and adverse treatment by a colleague.

The Complainant stated that the second letter issued on her behalf, by her representative, requested that the matter relating to the Facebook post be treated separately to the investigation of the Complainant's complaints. The Complainant further pointed out that the procedures and natural justice require the details of the allegations being made against her to be put to her in writing before the investigation commenced. However, Complainant stated that the investigation into the gross misconduct proceeded.

The Complainant stated that she received the final report of the investigation into her bullying complaint on 27 April 2017. According to the Complainant, her complaints against her manager and colleague were upheld in relation to social exclusion and isolation, humiliation and excessive monitoring of work. However, the Complainant stated that she did not receive any response from Management after this report issued.

Staff Meeting 3 February 2017:

The Complainant stated that one of the Respondent’s Managers (Mr S) called a staff meeting on 3 February 2017, at 11:00 am. According to the Complainant, she attended this meeting despite the fact that it was her day off. The Complainant stated that, at this meeting, staff were informed that a new rule would apply, whereby they were not allowed to shop for themselves during working hours and were not allowed to serve themselves all family members at the till.

According to the Complainant's evidence, after the meeting, she and a colleague (Ms T), were called to another meeting with the Manager and the Shop manager. The Complainant stated that, at this meeting, she and her colleague were accused of bad work on 23 January 2017. However, the Complainant stated that the allegation was dropped when she requested CCTV recording of the day in question.

Second disciplinary action – Allegations of theft:

The Complaint stated that, on 14 February 2017 she received a call from the Manager (Mr S) to attend a meeting. According to the Complainant she was not informed what the meeting was about and received nothing in writing in advance. The Manager then asked another employee to attend the meeting as a witness. The Complainant further stated that she was not advised to bring a witness/representative with her to the meeting despite the fact that the Respondent was aware that her representative was dealing with issues on her behalf.

According to the Complainant, during the meeting on 14 February 2017, the Manager made allegations of theft, which allegedly took place three weeks earlier, on 28 January 2017. The Complainant stated that the Manager showed her CCTV footage of the incident. She further stated that the Manager had a receipt relating to the incident, which she had not seen before and which he did not give to her on the day.

The Complainant stated that she requested to have the meeting recorded, which the Manager allowed. The Complainant stated that the Manager then asked her why she had printed the label before finishing slicing the ham. According to the Complainant, she felt that, at that moment, the meeting turned into a disciplinary hearing and that she was expected to defend herself.

The Complainant stated that, after about 15 minutes, the Manager showed her the CCTV footage of the incident. According the Complainant, at that point, the Manager asked to turn off her mobile phone, requested the witness to leave and indicated to the Complainant to follow him to a different part of the shop where there was no witness. The Complainant stated that the Manager then made an offer to her, on behalf of the company, that she could either admit to the theft and leave with a good reference or, if she didn't admit to the test, there would be a disciplinary process, from which she would be fired for theft and would get a bad reference. According to the Complainant, the Manager had documentation with him for her to sign. However, the Complainant stated that she refused to sign anything, as she did not believe she had done anything wrong.

According to the Complainant, when she refused to sign the documentation he had brought with him, the Manager then requested her to follow him to the shop where he proceeded to get another employee to demonstrate the cutting of ham. The Complainant stated that she requested to be allowed to cut the ham, as it is possible to regulate the thickness on the machine. However, the Complainant stated that the Manager refused to allow her to cut it.

The Complainant stated that she was very upset after the meeting and was not able to work. She stated that, the following day, she was certified unfit to work due to acute stress and was treated with antidepressants.

The Complainant further stated that she later found out the allegations in relation to the cutting of the ham were made by the colleague against whom she had already made a complaint. According to the Complainant, the colleague in question had been interviewed, on 25 January 2017, by the investigator, who was conducting the investigation into the bullying complaints. The Complainant further stated that the colleague’s allegations, in relation to the cutting of the ham, were contained in a letter dated 29 January 2017.

The Complainant pointed out that despite being made aware of the incident in relation to the cutting of the ham, on the day on which it happened, 28 January 2017, the Manager waited three weeks before speaking with the Complainant on the matter. The Complainant stated that this delay was never explained to her.

In addition, the Complainant stated that at the meeting with the Manager on 14 February 2017, the issue of her serving her husband was never raised. According to the Complainant the first time she heard about this was at the second investigation meeting in April, almost 3 months later.

The Complainant stated that immediately after the meeting with the Manager on 14 February 2017, she received a letter from the company stating that she was suspended from work with immediate effect, while an investigation was being carried out. According to the Complainant only the CCTV footage from 28 January 2017 was attached to the letter and no specific allegation was made and, as a result, she was unaware of what was being investigated and who was carrying out investigation.

According to the Complainant, she was invited to a meeting at the company headquarters on 17 February 2017. However, the Complaint stated that, as she was not certified medically fit to return to work until 5 April 2017, the investigation meeting did not take place until 11 April 2017. According to the Complainant, despite the fact that she and her representative have refused to sign the minutes of the 11 April meeting, due to discrepancies between the English and Polish version of same, the Respondent proceeded with the disciplinary meeting on to May 2017.

The Complainant stated that, as her representative was out of the country at that time, she attended the meeting on her own. The Complainant further stated that she felt that the decision to dismiss had already been made. According to the Complainant whatever she signed at the meeting on that day was without advice and under duress.

The Complainant stated that, by way of letter dated 5 May 201, she was summarily dismissed for gross misconduct. The Complainant stated that she did not appeal this decision as she considered it was pointless exercise. In this regard she stated that the Company Handbook indicated that the appeal will be made to the CEO, who according to her was the person who investigated her bullying complaint and then twice initiated disciplinary action against her for gross misconduct.

In addition, the Complainant stated that the letter of dismissal was vague in that it did not set out the exact complaint but merely referred to vague suggestions of misconduct. She also stated that the findings were based on the CCTV evidence which was clearly selective and incomplete. She further stated that the findings did not refer to the earlier investigations and the suggestion that she should resign.

According to the Complainant, the fact that she received her P45 just two working days from the date of dismissal clearly indicated that the decision had already been made to dismiss her. In addition, the Complainant stated that she felt that it was the Respondent's intention to dismiss her from once she had made her bullying complaint.

Based on the above incidents and background, the Complainant made the following specific complaints in her WRC claim:

CA-00014539-001 – Unfair Dismissal Act, 1977

In her Complaint Form, the Complainant alleged that she was dismissed from her employment as a result of making a complaint of bullying and harassment.

The Complainant also alleges that there was a clear lack of fair procedure with regard to the manner in which the Respondent dealt with the situation. The Complainant further believes that the Respondent was in breach of Irish law and did not deal appropriately with her complaints when she made them.

CA-00014539-002 – Minimum Notice & Terms of Employment Act, 1973

The Complainant stated that, as an employee with six years’ service, the Respondent failed to provide her with the required period of notice as set out in legislation.

CA-00014539-003 – Industrial Relations Act 1969

The Complainant states that she was unfairly dismissed as a result of the disciplinary sanctions which were unfairly imposed on her by the Respondent, when there was no evidence to support the allegations made against her within the workplace.

CA-00014539-004 – Industrial Relations Act 1969

The Complainant alleges that there are no bullying and harassment procedures or policies in place within the Respondent Company. She further states that there was a failure to comply with the existing health and safety legislation.

The Complainant further contends that the Respondent was not acting in line with the WRC Code of Practice in relation to bullying and harassment within the workplace.

CA-00014539-005 – Organisation of Working Time Act, 1997

The Complainant claims that she did not receive her annual leave entitlements, as set out in legislation.

CA-00014539-006 – Terms of Employment (Information) Act, 1994

The Complainant alleges that the Respondent amended the terms and conditions of employment without informing her in writing. She alleges that there was a change to her hours and the roster time periods.

The Complainant claims that this is a breach of contract which had a negative impact on her.

CA-00014539-007 – Protection of Employees (Part-time Work) Act, 2001

The claims that she was treated less favourably than a full-time employee as a result of making complaint under the grievance procedure against a full-time employee.

According to the Complainant, there were amendments to her working conditions, in that the hours being worked and the rostered hours provided were changed during an internal investigation and that the Respondent did so without any written notification or engagement.

CA-00014539-009 – Employment Equality Act, 1998

The Complainant stated that she was discriminated against by the Respondent on the grounds of her Family Status. The Complainant based her complaint on the allegation that the Respondent treated her unlawfully by discriminating against her in dismissing her for discriminatory reasons, dismissing her because she paused discrimination and discriminating against her in the form of harassment.

In addition, the Complainant stated that, in February 2017, the Respondent refused an application for the Family Income Supplement (FIS), when presented for signing by the Complainant's husband. In this regard, it is alleged that, in the section on the FIS application form, where the employer is required to indicate whether or not they intend to employ the person for at least three months, the Respondent inserted the words "not guaranteed".

The Complainant alleges that this statement was provided three months before she was dismissed for gross misconduct.

CA-00014539-010 – Regulation 18 of European Communities (Road Transport) 2012

The Complainant claims that the Respondent failed to provide and maintain a full file in relation to her employment. The Complaint further alleges that the Respondent failed to give her a full copy of the file under the Data Protection legislation, as required under Irish and EU law.

According to the Complainant, the Respondent also failed to maintain correct Revenue records of her employment, as her P60 did not reflect the complete period for which she worked for the Respondent.

CA-00014539-011 - Organisation of Working Time Act, 1997

The Complainant alleges that there were amendments to her working conditions after complaints were made by her. The Complainant contends that the reduction in her hours amount to serious financial penalisation.

According to the Complainant, as a direct result of her lodging her complaint, she was discriminated against when the company cut her working hours. The Complainant stated that this reduction in hours led to a loss of income and, as a result, she eventually lost the financial benefit of statutory entitlements to Family Income Supplement (FIS).

The Complainant further stated that she made additional complaints of victimisation/penalisation and informed management of certain grievances she had with a colleague with regard to the locking of the premises at close of business.

CA-00014539-013 - Organisation of Working Time Act, 1997

The Complainant contends that, as a result of a change to her terms and conditions of employment, she did not receive the appropriate public holiday entitlement.

CA-00014539-014 – Payment of Wages Act, 1991

The Complainant alleges that the Respondent failed to provide the required notice period with regard to the termination of her employment and never provided her with the appropriate wages in lieu of notice.

The Complainant claims that, as she has six years’ service, she should have been entitled to 4 weeks’ notice under Irish law.

CA-00014539-015 - Organisation of Working Time Act, 1997

The Complainant contends that she did not receive her appropriate holiday leave entitlement.

Background:

The Respondent stated that, on commencement of employment, the Complainant received a Contract of Employment, stating hours of work of between 10 and 39 hours per week, as rostered, Sunday to Saturday. It was also stated that the Complainant was given a Company Handbook, which was signed as accepted on 28 June 2012. The Respondent further stated that an updated version of the Company Handbook was issued to the Complainant, in September 2016, via email, in Polish, (as the Complainant is a Polish national).

The Respondent stated that in December 2016, they received correspondence from a representative of the Complainant making a claim of Bullying and Harassment at work. According to the Respondent, the letter also requested a copy of all CCTV footage relating to the Complainant, pertaining to an incident which happened at the Respondent's premises on 7 November 2016.

The Respondent further stated that this correspondence alleged that there had been a previous complaint in 2014. However, the Respondent stated that the complaint contained the correspondence of December 2016, was the first complaint of this nature that had been received from the Complainant. The Respondent stated that they replied, on 8 December 2016, referring to specific company policies and requesting details of the incident, as this was the first notice they had of same. The Respondent also indicated that bullying complaints were taken very seriously and an independent investigation was to be arranged.

According to the Respondent, details of the complaints were received on 17 December 2016. It was stated, in evidence, that a letter was sent to the Complainant advising that, due to the timing of the situation, they would not be in a position to facilitate an independent investigation into the bullying allegations and the incident of 7 November 2016 until after Christmas.

The Respondent stated that the Investigation was carried out through January and February 2017. Statements were taken from the Complainant and a number of witnesses. It was stated that the Final Investigation Report, which issued on 27 February 2017, did not uphold the allegation of bullying.

The Respondent stated that on 28 January 2017, their Manager was alerted to the fact that the Complainant had left her workstation at the deli counter and proceeded to serve her husband at the cash till, which was not normal practice. On reviewing the CCTV footage, the Respondent stated that the Manager noticed a prior incident at the deli counter, involving the Complainant, where the rules regarding unauthorised discounting and serving of a family member were breached.

According to the Respondent, an informal meeting took place on 14 February 2017 which was attended by the Shop Manager, the Complainant and a witness. The Respondent stated that during this meeting, the Complainant was shown the CCTV footage from 28 January 2017 which allegedly showed her slicing 10 slices of ham, then printing the label, then slicing 12 more slices of ham and adding them to the package, then placing the label printed earlier on the outside of the package. The Respondent stated that the Complainant was also shown the receipt which contains the incorrect weight and price associated with the transaction.

The Respondent stated that the Complainant went on sick leave from 15 February to 5 April 2017, citing stress.

According to the Respondent, a formal investigation meeting took place on 11 April 2017 and, while this investigation was being finalised, the Complainant was suspended on full pay. The Respondent stated that a disciplinary meeting took place on 2 May 2017, at which the claim of gross misconduct was considered and upheld. Consequently, the Complainant’s contract of employment was terminated on 6 May 2017.

Having set out the above background, the Respondent proceeded to reply to the individual elements of the Complainant’s claims, as follows:

CA-00014539-001 – Unfair Dismissal Act, 1977

The Respondent stated that the Complainant was dismissed for unauthorised discounting, which is listed as Gross Misconduct in the Company Handbook, the Respondent stated that they followed the disciplinary procedures laid out in the Company handbook and ensured that natural justice was followed throughout.

The Respondent further stated that they had not received any complaints of bullying prior to receipt of the complaint relating to the incident of 7 November 2016. The Respondent stated that a thorough and independent investigation was carried out into these complaints in January 2017.

CA-00014539-002 – Minimum Notice & Terms of Employment Act, 1973

The Respondent stated that the Complainant was summarily dismissed for Gross Misconduct involving a breach of Company procedures by unauthorised discounting of a product. Consequently, the Respondent stated that minimum notice did not apply as specified in the Company Handbook.

CA-00014539-003 – Industrial Relations Act 1969

In response to this element of the Complainant's complaint, the Respondent stated that she was dismissed due to gross misconduct, following an investigation carried out in line with the Disciplinary Procedure contained in the Company Handbook.

The Respondent further stated that during the disciplinary investigation, the Complaint was shown CCTV footage depicting the discounting of food at the shop and she was also shown the receipt associated with this incident. The Respondent stated that, during an informal disciplinary hearing, the Complainant was given opportunities to explain the actions shown on CCTV and presenter side of the story. However, the Respondent stated that the Complainant did not dispute the evidence and the claim was upheld.

The Respondent stated that, as both a copy of the CCTV footage and the receipt were given to the Complainant, the principles of natural justice had been adhered to throughout the process.

CA-00014539-004 – Industrial Relations Act 1969

In response to this element of the Complainant's complaint, the Respondent stated that the Bullying and Harassment Procedures are outlined in the Company Handbook which had been provided to and signed by the Complaint in 2012.

The Respondent stated that the Company Handbook was provided to the Complainant in Polish in order to ensure a thorough understanding of the rules and regulations of the Company.

CA-00014539-005 – Organisation of Working Time Act, 1997

The Respondent stated that the Complainant's final payslip contained payment for 102 hours of annual leave. The Respondent stated that this amount was made up of the unused leave entitlement from 2016, totalling 88.08 hours and leave entitlement pertaining to 2017 of 14 hours.

The Respondent provided evidence, to the Hearing, supporting the above calculations, which were based on the 8% of hours worked in the leave year method of calculation, as per the Organisation of Working Time Act, 1997.

CA-00014539-006 – Terms of Employment (Information) Act, 1994

The Respondent stated that the Complainant returned to work from sick leave without giving notice of her return to the Company. The Respondent stated that, as rosters are scheduled to weeks in advance, the Complainant was unavoidably not included in the roster for that week or the following week. However, the Respondent stated that they managed to give her two days’ work in the following week. The Respondent further stated that following this, the Complainant returned to her normal working week.

According to the Respondent, the Complainant received an explanation for the above in a letter sent to her in reply to a query in January 2017.

CA-00014539-007 – Protection of Employees (Part-time Work) Act, 2001

In response to this element of the complaint, the Respondent stated that, once the Complainant was placed back on the roster, her working hours return to normal. The Respondent stated that the Complainant worked days between Sunday and Saturday and that these days changed over the course of her employment and not just at one time.

The Respondent stated that there is no evidence to suggest that the Complainant was treated any differently to any other employee. The Respondent stated that all part-time employees were in contracts stating working hours between 10 and 39 hours over a seven-day period.

CA-00014539-009 – Employment Equality Act, 1998

The Respondent stated that all employees are treated fairly under the company has a Equality Policy outlined in the Company Handbook. According to the Respondent, they queried with the Department of Social Protection how it should respond to the question, [on FIS forms], as to whether employees would be still employed in three months and were advised to put, on all such forms, the comment "not guaranteed".

The Respondent stated that this was the standard policy for all employees, when FIS forms well presented. They further claimed that the Complainant was not treated any differently in this regard.

CA-00014539-010 – Regulation 18 of European Communities (Road Transport) 2012

In response to this element of the Complainant's complaint, the Respondent stated that the request for the employment file was received on 5 December 2016 and the file was sent via email on 23 January 2017. The Respondent stated that delays, in this regard, were unavoidable due to the Christmas period.

The Respondent stated that once they had been informed that the Complainant did not receive the file, their resent via email and also sent a courier to deliver it directly to the Complainant.

According to the Respondent, the P60 is generated using information provided to the Revenue and reflects the hours worked by the Complainant.

CA-00014539-011 - Organisation of Working Time Act, 1997

The Respondent stated that when the Complainant returned to work following her sick leave, she gave no notice of her return and, as a result, rosters had already been completed for the following weeks. The Respondent further stated that the Complainant had not worked the 40 hours required to give her an entitlement to the Public Holiday.

The Respondent further stated that the Complainant hours following a return to work were lower but that they stabilised again to an average of 21 hours per week thereafter. The Respondent also stated that the Complainant always worked between 19 and 21 hours per week and worked days during a Sunday to Saturday roster.

CA-00014539-013 - Organisation of Working Time Act, 1997

The Respondent stated that Public Holiday entitlements were paid, in accordance with the Organisation of Working Time Act, 1997, which stipulates that the employee must have worked 40 hours in the previous five weeks, to establish an entitlement.

According to the Respondent, in the Complainant's case, she had just come back to work from unpaid sick leave and did not have the relevant hours worked up to warrant payment for the Public Holidays in question. The Respondent further stated that this was explained in a letter to the Complainant.

CA-00014539-014 – Payment of Wages Act, 1991

In response to this element of the Complainant's complaint, the Respondent stated that her employment ended following a disciplinary investigation in which the allegation of Gross Misconduct was upheld. The Respondent further stated that, as a result of this, the Complainant was similarly dismissed and, in accordance with the Company Handbook, notice periods do not therefore apply.

CA-00014539-015 - Organisation of Working Time Act, 1997

The Respondent stated that the Annual Leave entitlement for the Complainant was calculated, on the basis of 8% of working hours within the leave year, as per the Organisation of Working Time Act, 1997.

According to the Respondent, the Complainant carried over annual leave from 2016 to 2017 and this, along with her annual leave entitlement for 2017, was paid to her in her final pay check, a copy of which was provided in evidence at the Hearing.

Summary:

In summation, the Respondent refuted all of the claims made by the Complainant. The Respondent stated the policies and expected standards of behaviours were in place and issued to all employees. They further stated that allegations of bullying are treated very seriously and a full independent investigation was carried out once the Respondent was made aware of the Complainant's allegations in December 2016.

The Respondent stated that the nature of any position in retail is based on trust and honesty and that the importance of this policy is clearly explained to all employees. The Respondent further stated that the culture was clear that any form of unauthorised discounting was deemed as gross misconduct and that this was reflected clearly in the Company Handbook.

With regard to the Complainant's dismissal, the Respondent stated that on 28 January 2017, the Complainant is seen on CCTV, slicing ham, weighing that ham and printing the label before slicing more ham and adding to the scales but not reprinting the label. The Respondent stated that there was a zero-tolerance policy whereby dishonest behaviour had severe consequences resulting in dismissal and that these consequences were well known to all employees.

The Respondent stated that the nature of their business was such that, hours were not guaranteed and employees were on variable hours contracts. However, the Respondent stated that, as far as possible, they attempted to regularise availability of hours for all staff.

The Respondent stated that the Complainant was afforded an investigation and a fair opportunity to defend her position and that natural justice applied throughout Disciplinary Procedure. The Respondent also stated that all employees are treated equally, with part-time and full-time employees having the same rights and entitlements.

The Complainant’s complaint, as submitted to the WRC, consists of 13 separate claims. All of these claims, with the exception of an alleged submission of a complaint in April 2014, related to a series of incidents and issues, which took place, in a reasonably confined timeframe, commencing on 7 November 2016 and concluding on 15 February 2017, when the Complainant was suspended from work, pending the conducting of a disciplinary investigation.

In the submission of her complaint, the Complainant links and cross-references many of these incidents/issues in a manner which appears to suggest they form part of an overall campaign of victimisation and/or penalisation by the Respondent. Consequently, in order to carry out a comprehensive review of the Complainant’s complaint, it was first necessary to separate the various incidents/issues. This would then establish the validity or otherwise of the linking of the various elements and, as a result, would facilitate a more thorough assessment of the Complainant’s complaint.

Having carefully reviewed all of the evidence presented, it was possible to establish the following chronology or sequence of events.

Bullying and Harassment Complaint – 2014:

The Complainant contends that she submitted a bullying complaint in April 2014 relating to the manner in which she was being treated in the workplace. According to the Complainant, she was informed, at the time, by management that the colleagues, referred to in her complaint, had been spoken with and warnings, which would expire after six months, had been placed on their personnel files. In response to this contention, the Respondent stated that they had no record of receiving any complaint from the Complainant in 2014.

Notwithstanding the conflicting evidence presented in relation to the 2014 complaint, the Complainant’s own evidence suggests that, from her perspective, the matter was resolved, as she reports the situation improved “for a short while”. Based on this and the fact that for the following 2.5 years, there is no evidence of the Complainant raising any issue with management, I am satisfied that the events surrounding the alleged complaint in 2014 should be considered as closed and, as a result, do not form part of the 2016/2017 issues.

Bullying and Harassment Complaint – December 2016:

A staff meeting, which took place on 7 November 2016, was the catalyst for the Complainant's 2016 complaint of bullying and harassment.   According to the Complainant’s evidence issues arose during this meeting in relation to her ability to provide flexibility in covering staff absences during her (the Complainant’s) days off. The evidence presented suggests that a verbal altercation, which according to the Complainant escalated into a physical assault, involving the Complainant and the Shop Manager (Ms P) took place.

The Complainant stated that she was very upset by the events which took place at the staff meeting and, as a result, attended her doctor the following day. According to the Complainant’s evidence, her GP prescribed anti-depressants and placed on certified sick leave until 13 December 2016.   While evidence presented at the Hearing, by the Respondent, in relation to the nature/duration of the sick leave and the hours worked by the Complainant casts some doubt on the precise detail pertaining to the Complainant’s sick leave over this period, I am satisfied that nothing turns on this issue in relation to the overall complaint. In this regard, it is clear that the Complainant was certified, by her doctor, as fit to return to work from 14 December 2016.

The Complainant further stated in evidence that she reported the physical assault element of the altercation to the Gardai. The Complainant stated that, as far as she was aware, the Gardai tried a number of occasions to meet with Ms P, however, she was never present when they called. In response, the Respondent stated in evidence that the first they heard that the matter was reported to the Gardai was when the Complainant refer to it at this Hearing.

There is no evidence to suggest that the Gardai made any contact with the Respondent in relation to the alleged reporting of the physical assault. In addition, despite the fact the allegation of physical assault was investigated as one of the elements of the internal investigation conducted into the Complainant’s complaints of 6 December 2016, there is no evidence to suggest that the referral of the incident to the Gardai was brought to the Respondent's attention. Consequently, based on the foregoing, questions arise as to whether or not a complaint physical assault was actually made to the Gardai.

The Hearing also heard evidence, from Ms P, in relation to the staff meeting of 7 November 2016. In her evidence, the witness stated that the meeting in question was her first meeting as Shop Manager. She confirmed that she was seeking more flexibility from staff with regard to cover for sick colleagues. The Witness stated that the Complainant indicated that she could not provide more flexibility due to family reasons. The Witness further stated that the Complainant became very angry during the meeting.

The Witness stated that she approached the Complainant the day after the meeting and informed her that she did not want to fight with her. She further stated that they hugged each other and, as far as she was concerned, that was the end of the matter.

A second witness (Ms D), who had attended the meeting on 7 November 2016, also provided evidence to the Hearing. In her evidence, Ms D corroborated the Complainant’s account of the discussions with regard to flexibility for sick leave cover. This witness also stated that the Complainant became very distressed as the meeting progressed and when she tried to leave, her departure was prevented by Ms P. This witness also confirmed that, on the day following the meeting, Ms P took the Complainant aside into another room and apologised.

In her evidence to the Hearing, the Complainant confirmed that Ms P did apologise to her the following day, but that she did not consider it a real apology. It was in this context that the Complainant submitted a complaint of bullying and harassment.

As a result of the incidents at the staff meeting on 7 November, the Complainant engaged external representation. The Complainant lodged a formal bullying complaint, by way of a letter dated 6 December 2016, from her representative. As well as submitting a formal complaint of bullying and harassment, this letter also contained a Data Protection Access Request, under the relevant Data Protection legislation.

In a letter dated 8 December 2016, the Respondent replied to the Complainant’s representative. This correspondence stated that the Respondent was seeking to commence an independent investigation of the allegations, at the earliest opportunity and, in this regard, sought further details in relation to the complaint. Having received this further detail on 17 December 2016, the Respondent corresponded directly with the Complainant, by way of letter dated 20 December 2016, indicating that while they were not in a position to carry out an investigation of the 2014 complaint, they would commence an investigation into the 2016 complaint in early January 2017.

Evidence presented to the Hearing shows that an internal investigation was carried out during January and February 2017, with the Final Investigation Report issuing on 27 February 2017.   Having carefully reviewed the evidence presented, I am satisfied that the investigation, which was carried out by an external HR Consultant, appeared thorough and comprehensive. Each of the 13 elements of the Complainant's complaint were individually assessed in a process which included the interviewing of all parties present at the staff meeting on 7 November 2016, which was the catalyst for the complaint in the first instance.

In addition to issuing findings on the 13 elements of the Complainant's complaint, three of which were upheld, the Investigation Report sets out seven recommendations aimed at addressing other issues, in relation to the work environment, which came to light during the investigative process.

Taking all of the above into consideration, I am satisfied that the Complainant's complaint of bullying and harassment, as set out in her complaint document 5 December 2016, was dealt with appropriately by the Respondent and, therefore, I find that any concerns held by the Complainant in this regard are not well funded.

Return to work from sick leave – December 2016:

In her evidence, the Complaint stated that she was medically certified fit to return to work on 14 December 2016. However, the Complainant stated that, despite the fact that it was in the very busy pre-Christmas period, she was not put back on the roster as she expected and received reduced hours on her first week's back to work.

In response, the Respondent stated that the Complainant's return to work in the week in question was without notice, as the previous medical certificate expired on 13 December 2016. The Respondent explained, in evidence, that the rosters, which are set out weeks in advance, had already been completed for the weeks leading up to Christmas.

While the Complainant's contention that the rosters are fixed and do not change from week to week, it is reasonable that, in the context of the absence of a staff member, changes will be required in order to fill the roster, particularly in the two-week leading up into Christmas. However, notwithstanding this, the evidence shows that the Respondent did make hours available to the Complainant in the final three weeks of 2016, which averaged approximately nine hours per week. The evidence further shows, that in the first six weeks of 2017, the Complainant’s hours returned to normal.

Therefore, taking all of the above into consideration, I am satisfied that the evidence does not support the Complainant's contention that the reduction in her hours in the final three weeks of 2016 where as a result of her issuing bullying complaint on 5 December 2016. I am further satisfied that the Respondent's position with regard to the rosters for those weeks in question could not be construed as anything but reasonable. The return of the Complainant to normal roster hours in the early weeks of 2017 it is further confirmation that the Respondent’s actions were based on reasonable, practically considerations and were not based out of any animus towards the Complainant.

First Disciplinary Process – Avon/Facebook Incident - January2017:

The Complainant stated that, in addition to her work with the Respondent, she is also an agent for Avon cosmetics. According to the Complainant's evidence, she received a phone call on 3 January 2017, from a colleague who was at work, to the effect that she (the Colleague) had been instructed to remove the Complainant's Avon catalogues from the shop and to advise her (the Complainant) that she was banned from displaying catalogues in the shop in future.

According to the Complainant's evidence, on 5 January 2017, she posted, on closed/private Facebook for her Avon clients, that her catalogues would no longer be available from the Respondent's shop. In further evidence, the Complainant stated that later that evening she received a phone call from a senior member of the Respondent, who demanded that the Facebook post be removed and, if not, she would face disciplinary action.

The Complainant then received a letter, dated 9 January 2017, from the Respondent inviting her to a meeting on 18 January 2017, one of the purposes for which was to investigate possible gross misconduct pertaining to the Facebook posting. The Complainant stated that her representative issued a letter to the Respondent requesting that the issue relating to the Facebook post be treated separately. This letter also pointed out that, in order to comply with the process and procedure, the Complainant should be provided with details of the allegations being made against her.

It is clear, from the evidence presented to the Hearing, that the meeting scheduled for 18 January 2017 was intended to address the potential gross misconduct incident relating to the Facebook posting and also the allegations of bullying and harassment as set out in the letter of complaint dated 15 December 2016. The hearing of both issues at the same meeting was, in my view, ill-advised on the Respondents behalf and lead to unnecessary confusion.

Notwithstanding the above view, it appears from the evidence that the issue relating to the Facebook posting was not pursued through the disciplinary process by the Respondent and there is no evidence of any action having been taken against the Complainant in this regard. The confusion arising in relation to the Facebook posting incident would have been further impacted by the fact that the dropping of this as a disciplinary issue does not appear to have been properly communicated to the Complainant.

With regard to the withdrawal of the facility to display her Avon catalogue in the shop, it appears that this matter was further complicated by difficulties which arose in relation to the paying of a courier driver for a delivery of a consignment of product to the shop, which was destined for one of the Complainant's private Avon clients. Evidence provided by a witness on behalf of the Respondent stated that, as arrangements the not been provided for in advance, the payment to the courier was made from the shop till.

Further evidence from the Respondent stated that the previous Shop Manager had allowed the Complainant to display catalogues in the shop and to have product delivered to the shop, for collection by her private Avon clients.

Taking all of the above into consideration, I am satisfied that the facilitation of the Complainant's Avon business in/through the shop was taking place clearly at the discretion of the Respondent. In addition, given some issues that appeared to be arising in relation to this matter, I cannot find it unreasonable that the Respondent decided to withdraw the facility.

While there does not appear to have been any malice towards her employer in the Complainant' advising her clients, via Facebook, of the change in arrangements, it is understandable that the Respondent may, initially, have considered this a potential disciplinary issue. However, having carefully reviewed all of the evidence in relation to this matter, I am satisfied that the Respondent did not pursue this line and no sanction or detriment to the Complainant ensued as a result.

Second Disciplinary Process – Incident - 28 January 2017:

According to the evidence presented at the hearing, one of the Respondent’s managers (Mr S) received information from an employee to the effect that the Complainant had breached shop rules in the cutting and sale of cold meats for personal use. The evidence suggests that Mr S then held a meeting with the Complainant on 14 February 2017 in an area of the shop where he raised the issue of 28 January 2017 and sought her explanations for the cutting and subsequent sale of the product.

The Manager had requested another member of staff to attend the meeting as a witness. The Complainant sought to record the meeting and was initially allowed to do so by the Manager. During the initial part of the meeting, the Complainant was shown CCTV footage of the incident in question.

The CCTV footage which was made available at the Hearing shows that the meeting then moved to a different part of the premises, at which point the witness was sent back to work. The evidence further shows, that for this part of the meeting, the Complainant was not permitted to record the conversation, as she was for the earlier session.

According to the Complainant's evidence, the Manager suggested that if she was willing to admit to the theft of the meat, she could leave the company and would get a good reference. However, the Complainant stated that the Manager then said that if she was not willing two leave on these terms, she would be fired for theft and would get a bad reference.

Following the Complainant's refusal to sign any admission, she states that she was then brought to the shop where the Manager asked another employee to slice similar quantities of meat as that cut on the date of the original incident, 28 January 2017.

The following day, 15 February 2017, the Respondent wrote to the Complainant inviting her to a disciplinary meeting to be held on 17 February 2017 in relation to the incident which had taken place on 28 January 2017. In addition, the Complainant was advised that she was suspended from work, on full pay, with effect from 15 February 2017, pending the outcome of the investigation. However, as the Complaint was on sick leave from 15 February to 5 April 2017, the formal investigation meeting did not take place until 11 April 2017.

The minutes of the Disciplinary Investigation meeting of 11 April 2017 were forwarded to the Complainant for her signature. As the signed copy of the minutes were not received back, the Respondent wrote to the Complainant on 27 April 2017, advising that they were proceeding with a Disciplinary Hearing on 2 May 2017. Following that meeting, the Respondent wrote to the Complainant, by way of letter dated 5 May 2017 advising that she had been dismissed for Gross Misconduct. This letter also advised the Complainant that she had the right to appeal this decision within five working days. According to her evidence, the Complainant decided not to appeal the decision, as she felt it was a futile exercise.

In summary, it is clear that during the period November 2016 to January 2017 a number of different issues/incidents involving the Complainant took place in her workplace. Having carefully considered all of the evidence adduced in this regard, I am of the view that, while there is overlap in timing in relation to many of these issues/incidents, they are, in effect, a series of separate, parallel occurrences. While the Complainant is clearly of the view that all of these issues/incidents constitute an overall strategy or conspiracy by the Respondent to disadvantage and, ultimately, terminate her employment, the evidence adduced at the Hearing, does not, in my view, support this contention.

There was clearly an issue between the Complainant and some of her colleagues, which resulted in the submission of a bullying complaint on 5 December 2016. This complaint was clearly and appropriately dealt with by the Respondent. The potential disciplinary issue arising out of the Avon/Facebook post in early January 2017, was initially raised with the Complainant but was subsequently not pursued by the Respondent and no action was taken in this regard.

Having reviewed all of the evidence, I am satisfied the termination of the Complainant's contract was solely as a result of the incident relating to the slicing/sale of cold meats which took place on 28 January 2017. I am further satisfied that this evidence also undermines the Complainant's contention that her all grievances arose as a result of the submission of a complaint by her on 5 December 2016.

Clearly, the confluence of so many issues and incidents, within a short timeframe, provided confusion and complexity which might lead the Complainant to perceive the Respondent’s handling of the various issues in a suspicious light. However, the evidence clearly suggests that these were a series of incidents, which were unconnected at their origin, but which may have acquired a perceived association by virtue of the tight timeframe in which they all occurred.

Based on the above analysis and findings in relation to the overall context, I now proceed to assess the individual elements of the complaint.

CA-00014539-001 – Unfair Dismissal Act, 1977

When submitting her complaint under this heading, the Complainant stated that she was dismissed as a result of having made a complaint in relation to bullying and harassment. As clearly set out in the previous section, the evidence does not support this contention, but clearly shows that the termination of the Complainant's contract of employment resulted from the incident which took place in the shop on 28 January 2017.

Consequently, the assessment of the Complainant's complaint relates to her dismissal arising out of the incident on 28 January.

Section 6 (1) of the Unfair Dismissal Act 1977 states that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to the circumstances, there were substantial grounds justifying the dismissal."

Section 6 (4) of the Act further states that:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following…..(b) the conduct of the employee….”

Section 6 (6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal are not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.”

The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds of misconduct, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances. It is not the function of the Adjudicator to establish the guilt or innocence of the employee. On the contrary, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show the fair process and procedures were applied when conducting the disciplinary process.

In cases where the dismissal relates to gross misconduct, the EAT set out the appropriate test to be applied in such circumstances. In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows:

"In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

With regard to the case in hand, the Respondent became aware of the incident when it was brought to local management's attention by a colleague of the Complainant, who had witnessed the incident on the day. In her evidence, the Complainant contended that her colleagues action in reporting the incident was motivated by the fact that she (the colleague) was one of the respondents named in the Complainant's complaint of bullying and harassment, which was submitted on 5 December 2016.

Notwithstanding the motivation of her colleague, in reporting the incident, I am satisfied from the evidence presented, both in documentary and visual (CCTV) form, that there was a case for the Respondent to investigate. The Respondent's investigation commenced with an informal meeting between the Complainant and a Store Manager (Mr S) on 14 February 2017. I am satisfied from the evidence presented that, in the main, this meeting appears to constitute an initial effort by the Respondent to establish the facts surrounding the incident and to ascertain the Complainant's initial response to same.

The only aspect of this meeting which would give rise to some concern, is the section at the end when only the Store Manager and the Complainant were present, the witness who had been attendance at the earlier part of the meeting having instructed to leave. This section of the meeting also differs from the earlier part in that the Store Manager refused to allow the conversation to be recorded, as had happened with the earlier part of the meeting.

According to the Complainant's evidence, the Store Manager presented her with the option of admitting her guilt and being allowed to resign, with a good reference, or been fired as a result the disciplinary process. In some circumstances, such actions by an investigating manager could be viewed as inappropriate and could be seen to be detrimental to the process. However, in this particular case there is a conflict of evidence, to the extent that it is not possible to determine, with any degree of accuracy, what was said during this meeting.

What is clear from the evidence is that, immediately following this meeting, the Complainant was invited into a disciplinary process and was placed on suspension, with full pay, pending conclusion of that process. It is clear from the evidence presented, that the Store Manager was only involved in the subsequent disciplinary process at the first meeting and then only in the role of a witness presenting factual evidence. Consequently, I am satisfied that there is no evidence to suggest that the Store Manager was involved in and/or inappropriately influenced the eventual decision, which was taken by a more senior person.

During submission, it was contended that the Respondent’s reply to a question when filling out a Family Income Supplement (FIS) form for the Complainant indicated pre-judgement of the decision to dismiss. During the period of time when the Complainant was on suspension, pending completion of the disciplinary investigation, her husband brought an FIS application form to the Respondent for completion. In response to a question on the forum which queried the Respondent's intention to employ the person for at least three months, the Respondent replied with the words "not guaranteed". According to the Complainant, this response represented discrimination that lead to dismissal.

In response, the Respondent stated they understood their response was in line with the Department of Social Protection guidelines in this regard. In any event, I find that to respond in the manner in which they did could not be considered as unreasonable in the circumstances. The Complainant's husband had submitted the FIS for completion by the Respondent on 27 February 2017. At this point in time, the Complainant was on suspension, pending completion of a disciplinary investigation into alleged gross misconduct. In such circumstances, I am of the view that the Respondent's reply to the question reflected the reality of the situation and to have done otherwise could be seen to have potentially misled the Department.

With regard to the provision of fair procedure, I am satisfied from the evidence induced, that the Respondent’s process contained all the aspects and ingredients one would expect find in a fair procedure. The process, which was conducted by a senior manager, took place over two separate meetings, the Complainant was allowed representation at all stages and was provided with the opportunity to appeal the termination decision. Translation of documents and minutes was also provided. I note in this latter regard, that there is some dispute over certain elements of translated documents. However, having carefully reviewed these I am of the view that nothing significant turns on these matters.

Consequently, taking all of the above into consideration, I conclude that it was not unreasonable for the Respondent to consider the Complainant's action in relation to the manner in which she sliced the meat and her conducting of the sales interaction with her husband to be an act of gross misconduct.

Based on the above conclusion, I find that the Respondent's decision to dismiss the Complainant was reasonable in all the circumstances.

CA-00014539-002 – Minimum Notice & Terms of Employment Act, 1973

In her complaint under the Minimum Notice & Terms of Employment Act, 1973, the Complainant claimed that the Respondent failed to give the required notice in line with her years of service as provided for under the Act.

Section K of the Respondent’s Disciplinary Rules and Procedures, which form part of the Complaints terms and conditions of employment, states that "Gross Misconduct offences will result in dismissal without notice".

Section 8 of the Act status follows:

"Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party".

The Complainant's contract of employment was terminated on the grounds of gross misconduct. As this termination has already been found to be fair, it follows that the Complainant's claim for payment of notice must also fall.

CA-00014539-003 – Industrial Relations Act 1969

The first element of the Complainant's two claims under the Industrial Relations Act, 1969, relates to alleged unfair dismissal as a result of the disciplinary sanctions that were imposed, when there was no evidence to support the allegations made against her in the workplace.

The findings in relation to the Complainant's dismissal as already been set out above under CA-00014539-001. Consequently, the claim under this Act fails and there is no requirement to issue a recommendation under this reference.

CA-00014539-004 – Industrial Relations Act 1969

The Complainant's second claim under the Industrial Relations Act 1969, referred to the alleged lack of bullying and harassment procedures or policies in the workplace and the Respondent's failure to comply with the existing health and safety legislation and/or the WRC Court of Practice in relation to bullying and harassment.

Having carefully considered the documentary evidence presented, I am satisfied that Section 3 of the Respondents Company Handbook contains policies on (a) Personal Harassment Policy Procedure, the Respondent and (b) Bullying Prevention.

As has already been stated above, I find that the Respondent dealt with the Complainant's complaint of bullying and harassment, of 5 December 2016, in a prompt an appropriate manner.

Consequently, this element of the Complainant's claim is not well founded and is, therefore, not upheld.

CA-00014539-005 – Organisation of Working Time Act, 1997

Documentary evidence provided by the Respondent detailed that, in her final payslip, the Complaint was paid 102 hours annual leave. This was made up of 88 hours of an unused entitlement from 2016 and an entitlement of 14 hours for 2017.

The Respondent stated that annual leave entitlement was determined by calculating a percent of the hours worked in the leave year and that this was consistent with the Organisation of Working Time Act, 1997.

On presentation of the above evidence, the Complainant accepted the Respondent the position and the complaint under this Act was withdrawn.

CA-00014539-006 – Terms of Employment (Information) Act, 1994

Section 5 (1) of the Act states as follows in relation to the notification of changes to the terms of an employee’s contract:

“Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as maybe thereafter, but not later than (a) one month after the change takes effect”

In her complaint, the Complainant alleged that the Respondent amended the terms and condition of employment without informing her in writing. The amendments referred to in this regard by the Complainant related to changes in her hours and roster times following her return from sick leave on 14 December 2016.

As already set out in the Considerations and Findings above, the evidence clearly indicates that the changes to the Complainant's rosters/times in the final three working weeks of 2016, were related specifically to the fact that the rosters had been completed prior to the Respondent becoming aware that the Complainant would be available for work from 14 December.

The Complainant's Contract of Employment states that she will normally work between 10 and 29 hours per week. The evidence presented the Hearing, clearly shows that in the three weeks following her return from sick leave, the Complainant worked 4.5, 14.75 and 8.75 hours respectively. This represents an average of 9.33 hours per week.

In circumstances where the Respondent was unaware that the Complainant would be in a position to return for these weeks and where the period in question included the Christmas period, I am satisfied that this does not represent an amendment to the Complainant's Terms of Employment, to the extent that they would require written notification.

In any event, the restoration of the Complainant’s hours/rosters to a more normal pattern in the early weeks of 2017, clearly demonstrates that any change in terms were temporary and, further, were within the one month timeframe stipulated in the Act for notification of changes.

Consequently, taking all of the above into consideration I find that the Complainant's claim in this regard is not well founded as no breach of the Act has taken place.

CA-00014539-007 – Protection of Employees (Part-time Work) Act, 2001

In this element of her claim, the Complainant alleges that she was treated less favourably then a full-time employee as a result of making a complaint under the grievance procedure against an employee who was full-time.

Having carefully considered the evidence submitted both in relation to this specific claim and the overall set of grievances, I find that it is not well founded or supported by that evidence. In making a complaint, the Complainant links the amendments to her working hours/roster to the fact that she made a complaint against a full-time colleague.

As has already been set out under the previous and earlier findings, the temporary change in the Complainant’s hours/roster was directly related to her return to work from a period of sick leave at a point in time when rosters had already been set out.

In addition, I can find no evidence which supports the Complainant's contention that she was treated in any way less favourably and/or victimised because of her bullying complaint. As has already been stated, the Respondent took the complaint very seriously and conducted a comprehensive internal investigation.

Consequently, based on the above, I find that the Complainant's claims under this Act are not well funded and are, therefore, rejected.

CA-00014539-009 – Employment Equality Act, 1998

In addition to filing a complaint of discriminatory dismissal under Section 77 of the Employment Equality Act 1988, the Complainant also filed a claim of unfair dismissal under the Unfair Dismissals Act 1977, see CA-00014539-001 above.

 Consequently, as it is not possible to pursue parallel complaints of this nature, the Complainant was required to nominate which case   she intended to pursue. At the first Hearing on 19 April 2018, the Complainant's legal representative withdrew the complaint under the Employment Equality Act 1998.

CA-00014539-010 – Regulation 18 of European Communities (Road Transport) 2012

The Complainant’s complaint under this regulation is misconceived.

CA-00014539-011 - Organisation of Working Time Act, 1997

In this element of her claim, the Complainant alleges that she suffered serious financial penalisation as a result of having her hours being reduced over the final three weeks of 2016.

As has already been set out in earlier findings the temporary change in the Complainant hours/roster was directly related to her return to work from a period of sick leave at a point in time when rosters for that following weeks had already been set out.

Consequently, based on the above, I find that the reduction in the Complainant’s hours/rosters was not as a result of penalisation for the submission of a complaint of bullying and her claim in this regard is rejected.

CA-00014539-013 - Organisation of Working Time Act, 1997

Section 21 (4) of the Act sets of the following in relation to entitlement to public holidays:

“Subsection (1) should not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee)unless he or she has worked for the employer concerned at least 40 hours during the period of five weeks ending on the day before the public holiday".

Based on the evidence presented by the Respondent in relation to this element of the Complainant's complaint, I am satisfied it that the calculation, as set out above, was applied in relation to the Public holidays claimed.

Consequently, I find that the Complainant's complaint in relation to Public holidays it is not well founded and is, therefore, rejected.

CA-00014539-014 – Payment of Wages Act, 1991

The Complainant’s complaint under this reference is a duplication of the claim under CA-00014539-002 above. Consequently, the decision is already covered under that reference.

CA-00014539-015 - Organisation of Working Time Act, 1997

The Complainant’s complaint under this reference is identical to that made under CA-00014539-005 above and is already covered in that decision.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my decisions in relation to the individual aspects of the Complainant's complaint as follows;

CA-00014539-001 – Unfair Dismissal Act, 1977

I find that the Respondent's decision to dismiss the Complainant was reasonable in all the circumstances. Consequently, the Complainant's complaint in this regard is not upheld.

CA-00014539-002 – Minimum Notice & Terms of Employment Act, 1973

In the context of the decision set out above underCA-00014539-001, the Complainant's complaint under this Act a this she the also fails.

CA-00014539-005 – Organisation of Working Time Act, 1997

During the Hearing, the Complainant accepted the Respondent's calculations in relation to annual leave and withdrew the complaint. Consequently, no decision to issue.

CA-00014539-006 – Terms of Employment (Information) Act, 1994

The Complainant's claim was not well founded, as no breach of the Act had taken place.

CA-00014539-007 – Protection of Employees (Part-time Work) Act, 2001

The Complainant's claims under this Act were not well founded and are, therefore, rejected.

CA-00014539-009 – Employment Equality Act, 1998

This element of the Complainant's complaint was withdrawn in favour of pursuing the dismissal under the Unfair Dismissals Act.

CA-00014539-010 – Regulation 18 of European Communities (Road Transport) 2012

The Complainant’s complaint under this regulation is misconceived.

CA-00014539-011 - Organisation of Working Time Act, 1997

I find that the Complainant’s loss was not as a result of penalisation and her claim in this regard is rejected.

CA-00014539-013 - Organisation of Working Time Act, 1997

I find that the Complainant's complaint in relation to Public holidays it is not well founded and is, therefore, rejected.

CA-00014539-014 – Payment of Wages Act, 1991

The Complainant’s complaint under this reference is a duplication of the claim under CA-00014539-002 above. Consequently, the decision is already covered under that reference.

CA-00014539-015 - Organisation of Working Time Act, 1997

The Complainant’s complaint under this reference is identical to that made under CA-00014539-005 above and is already covered in that decision.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my recommendations in relation to the Complainant's claims under the Industrial Relations Act as follows;

CA-00014539-003 – Industrial Relations Act 1969

The findings in relation to the Complainant's dismissal as already been set out above under CA-00014539-001. Consequently, there is no requirement to issue a recommendation under this reference.

CA-00014539-004 – Industrial Relations Act 1969

This element of the Complainant's claim is not well founded and is, therefore, not upheld. Consequently, no recommendation issues in this regard.