ADJ-00013613

Complainant

Respondent

Anonymised Parties

A stage-hand

A concert venue

Representatives

Ray Ryan BL

Ciaran Loughran, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017828-001

08/03/2018

The respondent organisation is a concert venue that hosts around 1,000 events each year and the complainant has been employed there on a part-time, casual basis since 2011 as part of the back-stage crew.   The complainant claims that he has been penalised because he made a complaint to the WRC in December 2017 about his pay and conditions as a part-time worker.

The complainant works with the back-stage crew, five of whom are part-time casual employees.   He works an average of 26.5 hours per week and earns €12.94 per hour, resulting in an average weekly income of €352.62 gross.

At the hearing, the complainant outlined the responsibilities of his role, which involve setting up the stage for performances and looking after the requirements of performers on concert days. He also said that he sets up meeting rooms and IT equipment and does a small bit of lighting. He said that he generally works five days a week, although, in accordance with his contract, he can refuse work. However, he said that he never refuses work, as this would affect his entitlement to social welfare, which he claims for the days he is not working.

At the opening of the hearing, Mr Ryan said that the complainant has been subjected to unfair treatment and that he has been out of work since the end of March this year, due to work-related stress. On February 27th, he lodged a complaint of bullying against the operations manager. The respondent enlisted an external investigator to investigate this complaint and, at the time of this hearing on June 5th 2018, a report had not been issued.

On December 19th 2017, the complainant submitted a complaint of less favourable treatment compared to a full-time worker. On his behalf, Mr Ryan listed the ways in which the complainant alleges that he has been penalised for making this complaint.

1 He has been subjected to hostility, targeting and personalised comments.

As evidence of this treatment, the complainant referred to the fact that, in March 2017, he asked the operations and HR manager to investigate the way in which he was paid for public holidays on which he was not rostered for work. Part-time casual employees who don’t work on public holidays were normally paid for four additional hours in the week that the public holiday fell. As a result of his enquiry, it was discovered that the complainant’s pay for public holidays had been incorrectly calculated, as, due to the hours he normally worked each week, he should have been paid 7.5 hours’ pay. He was reimbursed for the shortfall. The time and attendance system was re-programmed so that employees who do not work on a public holiday receive one fifth of the hours they work in a week as the benefit for the public holiday. The result of this change in the method of calculation means that some employees now receive less than four hours’ pay for the public holidays that they don’t work. The complainant said that some employees were annoyed about this change and they claimed that it was his fault, as he had made the enquiry. He said it became “a running joke” in the workplace and that he was reminded about it once or twice a week.    

To address what he considered unfavourable treatment in respect of his rate of pay, the complainant and his SIPTU representative had a meeting with the operations and HR manager in November 2017. At this meeting, he alleges that the HR manager suggested that if he wasn’t happy with his conditions of employment, “he knows what he can do.”

2 The complainant’s working conditions have changed and deteriorated and the working environment has dis-improved.

The complainant claims that he worked less hours in 2017 compared to previous years. Mr Ryan outlined the complainants’ working hours from 2013:

2013     1347 hours

2104     1205 hours

2015     1680 hours

2016     1790 hours

2017     1356 hours

The complainant said that in 2018, he was overlooked for extra shifts and that others “got offered the shifts before me.” He said that, following a meeting in October 2017 to discuss his claim for the equivalent rate of pay to the full-time rate, he said that his colleagues remarked to him that he used to get offered shifts before other people.  

3 The complainant argues that he was forced to take his outstanding holidays at the end of 2017 and prevented from carrying them over into 2018 or being paid in lieu.

The complainant said that around December 12th 2017, he informed his line manager that he was submitting a complaint to the WRC, which he did on December 19th. He said that, in the second week of December, he was instructed to use up 100 hours of holidays he had not taken during the year. At the hearing, when he was asked why he didn’t take his full quota of holidays, he said that family members were ill and he couldn’t go on holidays. He said that he wanted to be paid for the holidays he had not taken, instead of having the time off.

4 He was deducted wages “for no apparent reason.”  

The complainant said that in January 2018, he had an appointment to get his car tested at the National Car Testing (NCT) centre. He said that on the day of the test, he got all his work done and he left the building for one and a half hours. He did not clock out when he left. He said that this was a normal occurrence if staff had to be occasionally off site for personal reasons. Following this, the complainant said that he got an e mail from the operations manager who said that he had been observed on the facility’s CCTV system leaving the premises while he was clocked in at work. His wages were deducted for one and a half hours of the one hour and 41 minutes that he was absent.

In his evidence, in response to a question from Mr Loughran, the complainant said that he got short notice of his NCT. He said that, the morning of the test, his line manager phoned him and asked him to change the names on the doors of the dressing rooms in the venue. He said that he told his manager that he needed to get off work for an hour, but that he would get his work done.

Mr Ryan said that the HR manager should have got in touch with the complainant before his wages were deducted.

5 The complainant said that the house manager told him that he knew of jobs coming up in another company.

The complainantinterpreted this as the manager suggesting that he should think about leaving his job with the respondent.

Response to the Complainant’s Allegations

1 The complainant has been subjected to hostility, targeting and personalised comments.

In response to the allegation that the complainant has been subjected to ridicule because he asked the HR manager to deal with the calculation of public holiday pay, the line manager said that the complainant was correct to raise this query. The respondent had made an error in the calculation of public holiday pay, which was resolved. The line manager said that the complainant told another employee that he had brought this error to the attention of management and this is the reason that that the staff came to know about it.  

2 The complainant’s working conditions have changed and deteriorated and the working environment has dis-improved.

The complainant said that in November 2017, he told his line manager that he felt that he was being overlooked for extra shifts. This pre-dates the first complaint being submitted to the WRC. In his evidence at the hearing, the complainant’s line manager said that a weekly schedule of concerts is sent out to full-time and casual staff a week in advance. The venue’s diary system has all the events uploaded. Generally, employees manage their shifts by letting their manager know when they are not available, and on this basis, they are not rostered.

The HR manager said that, for over 30 years, the respondent has employed casual part-time employees as back-stage crew and around 60 to 80 people have gone through the organisation who have had this job on the same terms as the complainant.   The HR manager said that the casual nature of the job suits people, as many are involved in bands or music projects.   He said that there is no reason to change the contracts, as the casual staff are happy with their conditions.

To show that the complainant has not been treated unfairly, an analysis was carried out on the six weeks between the end of September and early November in 2016 and 2017. During this period in 2016, the complainant worked for 168 hours and in the same period in 2017, he worked for 172 hours.

Mr Loughran said that, as a casual worker, the complainant is scheduled for work according to his availability and the needs of the concert venue. The complainant’s contract of employment was produced in evidence, which, at paragraph 5 states:

“Hours of attendance are flexible and are as scheduled by your manager.”

Mr Loughran said that there have been no changes to the complainant’s terms and conditions and he disputed the contention that he was subjected to unfair treatment as a result of making a complaint about his wages as a part-time worker. The complainant’s manager said that he regarded the complainant as a friend and that he was upset that he thought that he was being overlooked for shifts. He said that he never phoned another employee to avoid giving the complainant a shift and that he tried to balance the hours of all the casual staff.

In 2013, the respondent said that the full-time stage-hand was ill for a significant part of the year, with the result that the part-time staff worked more hours to cover for his absence. In 2014, the complainant had another role with a music group and was not as available for work with the respondent has he had been in previous years and in the years after 2014. In 2016, the respondent said that all the part-time employees worked more hours because of the number of events that were scheduled as part of the centenary of the 1916 Rising.

3 The allegation that, as a result of submitting a complaint to the WRC, the complainant was forced to take his outstanding holidays

For the respondent, Mr Loughran said that on his complaint form, the complainant said that “on or about 12th December 2017,” he told his manager that he was submitting a complaint to the WRC. Mr Loughran pointed out that on the complaint form, the complainant ticked the “no” box, when asked if he informed his employer that he was making a complaint.

The complainant did not take any holidays in 2017, and in December, he had accrued 100 hours. In previous years, he had taken most of his holidays and only had a small number of hours not taken which were paid in lieu.   In December 2017, he requested payment in lieu of 100 hours, but this request was refused and, on December 15th, he was instructed to take his holidays before the end of year.   The respondent disputes that this constituted penalisation and produced a document in evidence which shows that another employee accrued just under 70 hours and was also instructed to take his holidays in December. The respondent’s position is that the complainant was not treated differently to another employee in the same circumstances.

4 The allegation that the complainant was deducted wages “for no apparent reason”

The respondent’s position is that it was always clear that the complainant was deducted one and a half hours’ pay when he left the workplace on January 31st 2018 to bring his car for an NCT. The complainant had agreed to do a four-hour shift, but he was absent from the workplace for one hour and 40 minutes. For the respondent, Mr Loughran said that there is no provision in the terms and conditions for casual part-time workers to be paid for hours that they don’t work.

In his evidence, the respondent’s line manager said that on the morning of Wednesday, January 31st 2018, he asked the complainant to change the signings on the doors of the dressing rooms. The complainant responded that he had to take his car for an NCT. He said that he then heard from the operations and HR manager that the complainant had not clocked out and that he had been away for over one and a half hours. The manager said that on the Wednesday of that week, he told the complainant that the operations and HR manager had spoken to him about the fact that the complainant left the workplace without clocking out. He said that the complainant responded, “if there’s trouble, I’m going to rock the boat.”

For the complainant, Mr Ryan suggested that, on January 30th, the day before the NCT, the complainant’s line manager gave him permission to take his car for the NCT. The line manager disagreed and said that he was not at work on January 30th.

In his response to questions from Mr Ryan, the HR manager said that when he deducted one and a half hour’s pay from the complainant’s wages for January 31st, he was aware that he made a complaint to the WRC. He said that he could have processed other deductions in the past, but that this was “a very specific incident.”   He said that the complainant informed his manager that he was leaving work to get his NCT done, but this didn’t show up on the time and attendance system. He said that he checked the CCTV camera and he saw that the complainant had left the building, while he was clocked in.  

5 The allegation that the house manager advised the complainant that there were jobs coming up in another company

For the respondent, Mr Loughran said that this does not amount to penalisation as the manager concerned advised a number of casual employees that there were permanent jobs coming up that they may be interested in. The complainant was not targeted with this information, as it was directed to a group of employees.

In his evidence at the hearing, the manager who advised the employees about these vacancies said that his wife works in a company that was looking for full-time employees.   He said that he told the casual staff about these jobs, as he knew that some might be interested in full-time work. Evidence was produced of another employee replying by text message to the manager telling him that she had applied for one of these jobs. This manager also said that in May 2017, the complainant’s line manager told him about a job with an entertainment company on the north side of Dublin, and he was informed about this again in August 2017.  

The Respondent’s Position with Regard to the Claim of Penalisation

For the respondent, Mr Loughran argued that the complainant’s status as a casual, part-time worker with the right to refuse work means that he has no claim under the Protection of Employees (Part-time Work) Act 2001. Full-time employees are contractually obliged to make themselves available for set hours each week. In return, the employer cannot reduce their hours to meet the needs of the business as the employer is contractually obliged to provide them with full-time work. The respondent has no such obligation to the complainant. Therefore, full-time employees cannot be said to be comparators of the complainant, and any claim that he was treated less favourably than a full-time employee regarding his terms and conditions does not amount to penalisation.

In making this argument, the respondent is relying on the ruling of the Court of Justice of the European Union (CJEU) in the case of Nicole Wippel v Peek & Cloppenburg GmbH & Company K, [12 October 2004], C-313/02. The findings in respect of the relevance of this precedent have been addressed in the earlier decision in ADJ-00012481.

The Legal Framework

Section 9(1) of the Protection of Employees (Part-time Work) Act 2001 (“the Act”) provides that,

“…a part-time employee, in respect of his or her conditions of employment shall not be treated in a less favourable manner than a comparable full-time employee.”

In ADJ-00012481, this complainant alleged that he was treated in a less favourable manner compared to a full-time employee. He argues here that he was penalised for making this complaint and he has described how this penalisation manifested itself, as set out in the section under “The Complainant’s Position” above. Section 15 of the Act deals with penalisation:  

“(1) An employer shall not penalise an employee—

(a) for invoking the right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part…”

Subsections (b), (c) and (d) of section 1 are not relevant to this complainant’s case. Section 2 describes how penalisation shows itself:

“(2) For the purposes of this section, an employee is penalised if he or she—

(a) is dismissed, suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment….”

The remainder of section 2 deals with the consequences arising from an employer’s request to an employee to change from full-time to part-time work or part-time to full-time work, and is not relevant to the complainant.  

In summary therefore, since 2001, unless there are objective grounds which can be justified by an employer, it is unlawful to treat a part-time employee in a less favourable manner compared to a full-time employee. It is also unlawful to subject an employee to unfair or prejudicial treatment simply because they invoke their right to be treated on a par with their full-time colleagues.

Findings with Regard to Penalisation

For the respondent, Mr Loughran argued that the complainant has not established that there is a full-time worker to which he can compare himself, and that, on this basis, his complaint should fail. In respect of his complaint of penalisation however, the complainant is making an argument that he has been disadvantaged because he made a complaint in the first instance. I accept his entitlement to make this complaint and, in respect of the ways in which he said that he was penalised, I will address each one below.

1 The complainant has been subjected to hostility, targeting and personalised comments.

In good faith, the complainant enquired about his public holiday payments. This resulted in the employer making a change to correct how the casual employees’ public holiday entitlements are calculated, with the effect that the standard four-hour payment ceased and, in some instances, employees were paid less. The complainant said that this became “a running joke,” for his colleagues.   There was no suggestion of malign intent on the part of the complainant’s colleagues and I find no evidence that the humour evoked by this issue constituted penalisation.

At the meeting with the operations and HR manager in November 2017, the complainant said that the manager suggested that if he wasn’t happy with his conditions, “he knows what to do” or that, “he can go somewhere else.” While perhaps not reassuring, this statement cannot be construed as penalisation. Also, this statement was made before the complainant submitted his first complaint to the WRC. The manager didn’t say, “if he’s not happy I will reduce his hours,” or, “if he’s not happy, I will dismiss him.” This is in contradiction to the complainant’s response when he was informed that he would be docked pay for leaving work when he said, “if there’s trouble, I’m going to rock the boat.”   The manager’s statement simply implied that the complainant had a choice about working at the venue.

2 The complainant’s working conditions have changed and deteriorated and the working environment has dis-improved.

This aspect of the complainant’s allegation was about his perception that his working hours were reduced and that he was offered shifts after others had refused them. It is apparent that in 2017, there was a general reduction in hours for casual employees compared to 2016, the year of the centenary of 1916. In their evidence, the respondent said that the complainant’s hours were reduced by 11%, compared to another employee whose hours were reduced by over 20%.   No evidence was presented which showed that the complainant was offered shift only when others refused these shifts. I find that no penalisation occurred in respect of the availability of hours and shifts.

3 The complainant argues that he was forced to take his outstanding holidays at the end of 2017 and prevented from carrying them over into 2018 or being paid in lieu.

Section 20 of the Organisation of Working Time Act sets out the entitlement to holidays:

“(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and  

(c) to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.”

It is clear from this section of the Act that the timing of annual leave is at the discretion of the employer. In the case of the complainant, it would have been preferable if the employer had ensured that he took his holidays during the year, regardless of his reluctance to do so. The legislation is written to ensure that employees get their entitlement to holidays and not to provide for payment in exchange for holidays. Section 23 of this Act provides for compensation at the cessation of employment for the loss of annual leave, and payment in lieu of holidays should be confined to when there are holidays outstanding at the time that an employee is leaving his or her job.

I find that no penalisation occurred when, at the end of 2017, the respondent insisted that the complainant take his holidays.

4 He was deducted wages “for no apparent reason.”  

The reason that the complainant was deducted one and a half hour’s wages in respect of the hours he worked on January 31st 2018 is clear. He was not at work during this time. He had permission to be off-site, but he did not clock out.   At the hearing, he said that it was not unusual to be off site and to be paid, but he did not produce any evidence of other instances like this and I find it difficult to accept that this occurs. The deduction in his pay was not arbitrary and, the suggestion that it was related to his complaint under the Part-time Work Act does not stand up. I find that no penalisation occurred in respect of this matter.

5 The complainant said that the house manager told him that he knew of jobs coming up in another company.

In most workplaces, particularly in a healthy economy, people discuss jobs coming up in other companies. There can be no connection between the December 19th complaint to the WRC and the house manager informing a group of casual workers in January 2018 that he knew of full-time jobs where his wife works. The communication of this information does not amount to penalisation.

Conclusion

It was evident to me at the hearing that relations between the complainant and his employer have not been good for some time. In his letter to the chairman of the board of directors on November 9th 2017, he said:

“I have taken the decision to make you and the board aware of unfair treatment which has been directed at me by my operations manager…Over the past three to four years I have been excluded from groups, refused training and upskilling, had roles which I have undertaken questioned and belittled, threatened that I would have my hours of work cut and most recently, I was accused of refusing work…”

The complainant submitted his initial complaint under the Part-time Work Act on December 19th 2017, some six weeks after he wrote this letter. As he claims to have been treated unfairly “over the past three to four years,” if he was treated unfairly, it is difficult to accept that this occurred because he submitted a complaint to the WRC on December 19th 2017.   I find that most of the treatment that he complains about, apart from the deduction of wages and the advice about the full-time jobs in another company, occurred before he submitted his complaint to the WRC.

I note that the issues raised here by the complainant are the subject of a separate investigation by an independent person. This is the appropriate way of managing his complaints. It is my view that his grievances are not connected with his status as a part-time worker and for this reason, I find that he has not been penalised for making a complaint about his rate of pay.

As I have concluded that the complainant has not been subjected to penalisation and that the respondent is not in contravention of section 15 of the Protection of Employees (Part-time Work) Act 1991, I have decided that this complaint is not upheld.

Part-time worker, penalisation