ADJUDICATION OFFICER DECISION and RECOMMENDATION
Adjudication Reference: ADJ-00021332
Parties:
| Complainant | Respondent |
Anonymised Parties | A Sales Account Representative | A Software Company |
Representatives | Kiwana Ennis BL instructed by |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00028022-001 | ||
CA-00028022-002 | ||
CA-00028022-003 | ||
CA-00028022-004 | ||
CA-00028022-005 | ||
CA-00028022-006 | ||
CA-00028022-007 | ||
CA-00028022-008 | ||
CA-00028022-009 | ||
CA-00028022-010 | ||
CA-00028022-011 | ||
CA-00028022-013 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 79 of the Employment Equality Acts, 1998 - 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints and disputes to me by the Director General, I inquired into the complaints and disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and disputes.
Background:
The complainant made a number of complaints in relation to his employment concerning extra hours of work, extension of his probationary period, harassment, disciplinary sanctions, not being granted time off to attend his daughter’s medical appointments and arising from her illness. The following complaints were withdrawn at the hearing: CA-00028022-006, CA-00028022-007, CA-00028022-010 and CA-00028022-013. |
Summary of Complainant’s Case:
CA-00028022-001: The complainant submits that he worked in excess of his contracted working hours when he was required by his Manager to attend a meeting every Thursday lunch time for one hour and he was not paid. Also, he was required to attend one-to-one meeting with his Manager at the end of the working day on three evenings per week, each lasting at least half an hour. The complainant submits that he was not paid the commission he earned in 2018. CA-00028022-002: The complainant submits that he was prevented from taking a break in accordance with the provisions of the Organisation of Working Time when required to attend a meeting with his Manager every Thursday lunch time. Also, he was not given notice of the meetings. CA-00028022-003: The complainant submits that he was not informed in writing of the further extension of his probationary period in contravention of the Terms of Employment (Information) Act CA-00028022-004: The complainant submits that he raised a number of complaints under the respondent’s Grievance procedure, these were not dealt with and he was treated differently as a result and this amounts to discrimination. Taken under the Industrial Relations Act. CA-00028022-005: The complainant submits that he was discriminated against when his verbal requests to take time off to attend his daughter’s medical appointment or when she was sick were refused. Taken under the Industrial Relations Act. CA-00028022-008: The complainant submits that he was victimised contrary to the Employment Equality Act as a result of making his internal grievances. CA-00028022-009: The complainant submits that contrary to the Industrial Relations Act 2015 he was penalised for raising his internal grievances. CA-00028022-011: The complainant submits that contrary to the Parental Leave Act he was refused force majeure leave to attend his daughter’s vaccinations on 3 occasions and also when she was sick, at least 3 times. |
Summary of Respondent’s Case:
CA-00028022-001: The respondent submits that the complainant did not raise these issues internally. Furthermore, he has given no specific dates to support his claim. Also, he has given no reason why he could not have taken his lunch before or after the meetings. The manager has left the respondent and did not give evidence at the hearing. The respondent submitted a document which indicated that commission would have been to the complainant if he had achieved 20% of his sales target; which he did not. CA-00028022-002: The respondent submits that the complainant has given no reason why he could not have taken his lunch break before or after the meetings. CA-00028022-003: The respondent submits that there were no changes in the complainant’s terms of employment and what he refers to does not fall within that category. CA-00028022-004: The respondent says there was only one incident that could fall within this category of a complaint. This was against his manager and was jointly made by a number of people. The respondent submits this was not a complaint. Also, the complainant has not shown how he was treated differently as a result. CA-00028022-005: The respondent submits that the complainant did not request the time off within their procedures, to which the complainant had access, and they have no case to answer. CA-00028022-008: The respondent submits that the complainant has failed to provide any evidence that he suffered discrimination in accordance with the Employment Equality Act. CA-00028022-009: The respondent submits that the complainant has failed to show how he was penalised. CA-00028022-011: The respondent submits that the complainant did not request the time off within their procedures, to which the complainant had access, and they have no case to answer. |
Findings and Conclusions:
CA-00028022-001 Payment of Wages Act The complainant outlined two claims in relation to hours which he claims to have worked that were additional to his contract and for which he did not receive additional payment. The respondent states the complainant failed to raise these issues while in their employment. Also, they state he could have taken a lunch before or after the meeting. No evidence was provided as to the length or frequency of the evening meetings. Regarding his claim for commission I am satisfied that commission would have paid if he had reached 20% of his target. He did not and therefore was not entitled to any commission. I conclude the complainant has failed to show that any of his claims fall within the provisions of the Payment of Wages Act and this claim is not well founded. CA-00028022-002 Organisation of Working Time Act (OWTA) The claim is that the complainant was required to attend a meeting with his Manager every Thursday lunchtime and was therefore unable to take a lunch break in contravention of the OWTA. The complainant says he could not take a break either side of this meeting because he had to do his job. I am not satisfied that the complainant has proved that the respondent contravened section 12 of the OWTA and therefore his complaint is not well founded. CA-00028022-003 Terms of Employment (Information) Act The complainant submits that he was not informed in writing of the further extension of his probationary period in contravention of the Terms of Employment (Information) Act. However, this information is not a requirement of this legislation and the complainant is not well founded. CA-00028022-004 Industrial Relations Act 1969 At the hearing the complainant clarified that he was one of a number of number of staff who made a joint complaint against their manager. The respondent says this came about from a group discussion and was not a formal complaint. However, the Director of Inside Sales was made aware of issues raised by the group and he discussed them with the manager. The complainant says that his subsequent treatment by the manager was because of this complaint. I am satisfied that no complaint was raised solely by the complainant and the joint issues were not presented as a formal complaint. I am not satisfied that the complainant has given any evidence that he was treated differently because of the issues raised. I cannot therefore make any recommendation. CA-00028022-005 Industrial Relations Act 1969 This claim arises from the complainant’s allegations that he was discriminated against when his verbal requests to take time off to attend his daughter’s medical appointment or when she was sick were refused. The respondent says the complainant did not make any request for time off within their procedures. Furthermore, he made no attempt to raise this issue within their procedures. As the complainant made no attempt to raise this issue in accordance with internal procedures before he left his employment I am unable to make a recommendation. CA-00028022-008 Employment Equality Act The complainant submits that he was victimised contrary to the Employment Equality Act by his manager as a result of making his internal grievances. The respondent does not accept that the complainant raised a grievance. Section 74 (2) of the Employment Equality Acts states: “victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to a complaint of discrimination made by the employee to the employer”
In the incidents given in evidence by the complainant I conclude that what he portrays as a complaint were concerns raised by a number of people at a general meeting; I find the complainant did not raise a complaint and certainly did not raise a complaint of discrimination. Therefore, he is unable to establish a complaint of victimisation and it is not well founded. CA-00028022-009 Industrial Relations Act 2015 The complainant submits that contrary to section 20 (1) the Industrial Relations Act 2015 he was penalised for raising his internal grievances and the respondent says the complainant has failed to show how he was penalised. The complainant has failed to show how he was penalised arising from an internal grievance and therefore his complaint is not well founded. CA-00028022-011 Parental Leave Act The complainant submits that contrary to the Parental Leave Act he was refused force majeure leave to attend his daughter’s vaccinations on 3 occasions and, also when she was sick, at least 3 times. The respondent submits that the complainant did not request the time off within their procedures, to which the complainant had access, and they have no case to answer. The complainant’s evidence only relates to general, verbal requests to his manager. He gave no evidence that he had applied for Force Majeure in accordance with the provisions of the Act. I therefore find that the complaint is not well founded. |
Decisions and Recommendations:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act and Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under section 82 of the Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the disputes.
I find that for the reasons given above CA-00028022-001 made pursuant to the Payment of Wages Act, 1991 is not well founded. I find that for the reasons given above CA-00028022-002 made pursuant to the Organisation of Working Time Act, 1997 is not well founded. I find that for the reasons given aboveCA-00028022-003 made pursuant to the Terms of Employment (Information) Act, 1994 is not well founded. Dispute CA-00028022-004 made pursuant to the Industrial Relations Act, 1969, for the reasons set out above I find that I cannot make a recommendation in this matter. Dispute CA-00028022-005 made pursuant to the Industrial Relations Act, 1969, for the reasons set out above I find that I cannot make a recommendation in this matter. I find that for the reasons given above in CA-00028022-008 made pursuant to the Employment Equality Act, 1998 the complainant is unable to establish a complaint of victimisation and it is not well founded. I find that for the reasons given above CA-00028022-009 made pursuant to the Industrial Relations (Amendment) Act, 2015 is not well founded. I find that for the reasons given above CA-00028022-011 made pursuant to the Parental Leave Act, 1998 is not well founded. |
Dated: December 9th 2019
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
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