Complainant

Respondent

Anonymised Parties

An aircraft maintenance engineer

An Employer

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011

CA-00012032-001

20/06/2017

The complainant submitted that during the course of a transfer of undertaking process, the respondent and an airline engaged in illegality. He cites sections 222 and 224 of the Companies Act and section 7 of the Protection of Employment Act. The Labour Court determined a previous complaint pursuant to the Criminal Justice Act, 2011 involving the same parties (CJD XXX).

The complainant submitted that an illegality had occurred involving the respondent’s loss of a contract and a subsequent transfer of undertaking. The complainant outlined that he complained to the Gardaí in 2013 or so. This, however, just petered out. He submitted that a misrepresentation had occurred in 2009 as people were not aware of the transfer of undertaking. The complainant felt that his reinstatement in 2013 was a type of misrepresentation.

The complainant said that the refusal in the December 2016 letter to provide him with a new contract and the full copy of the collective agreement were acts of penalisation. He had referred this complaint within six months of the respondent’s letter of the 19th December 2016. The complainant submitted that the decision of the Labour Court in CJD XXX was made before the respondent’s letter of the 19th December 2016.

The respondent submitted that this claim was out of time. The complainant referred to events between 2009 and 2013 and the latest date being the 3rd July 2013. Its letter of the 19th December 2016 did not change anything.

The respondent submitted that the misrepresentation provision of Schedule 2 of the Criminal Justice Act was repealed by the Workplace Relations Act, 2015 and substituted by section 41 of this Act. The respondent submitted that the complainant had advanced similar claims under the Criminal Justice Act, 2011 and they were determined by the Labour Court (CJD XXX).

The respondent submitted that there was no effect in the complainant signing the contract on the day of the adjudication. He had previously worked under this contract and accepted it.

This is a complaint made pursuant to Schedule 2 of the Criminal Justice Act, 2011. This provision prohibits the penalisation of employees who disclose information relating to relevant offences (as set out in section 3 of the Act).

The complainant was reinstated by Order of the Circuit Court (dated the 22nd April 2013) following an earlier redundancy in 2009. He was paid the back pay. He was subsequently made redundant on the 3rd July 2013, having been the respondent’s then only employee. The respondent’s letter of the 19th December 2016 replied to the complainant’s email correspondence seeking enforcement of the Circuit Court Order of the 22nd April 2013. The respondent asserts that it complied with the Order and it was not required to issue the complainant with a new contract of employment.

Having regard to the contents of the letter of the 19th December 2016, I find that there is nothing in the letter that could be construed as an act of penalisation. Even if the respondent is incorrect in its submission that it complied with the Order, this is a matter for the complainant to raise in the Circuit Court. It is not an act of penalisation. Any of the other matters raised by the complainant are significantly out of time.

For completeness, the respondent is correct in its submission that the Workplace Relations Act substantively amended the redress provision contained in Schedule 2 of the Act of 2011. It inserted the limitation provision set out in section 41 of the Workplace Relations Act, i.e. a complaint must be referred to the WRC within six months of the date of contravention, extendable with reasonable cause to 12 months. It did not preserve the misrepresentation provision contained at subsection (5) of Schedule 2. There is no provision in the current formulation of Schedule 2 to allow the date of contravention (and the date when the limitation period starts) to be the date an employee discovers an employer’s misrepresentation.

CA-00012032-001

I find that this complaint is not well founded as it was made outside of the limitation period set out in section 41 of the Workplace Relations Act and applicable to complaints made pursuant to Schedule 2 of the Criminal Justice Act, 2011.

Criminal Justice Act / Schedule 2

Act of penalisation

Workplace Relations Act