PTD192

The Adjudication Officer found that the Complainant had not been penalised and that the Respondent was not in contravention of s15 of the Act therefore, the complaint was not upheld

Background

The Complainant commenced employment with the Respondent in November 2011. The Complainant’s contract describes him as ‘part-time on a casual basis’ however it was accepted at the commencement of the Labour Court hearing that the Complainant was a part-time worker in accordance with the definitions set out in the Act. The Complainant is employed as a stage hand and it is his contention that he was penalised by the Respondent for bringing a claim under the Act. It is the Respondents position that no penalisation occurred.

Complainant’scase

It is the Complainant’s case that the Respondent in contravention of s15 of the Act penalised him for making a complainant under the Act. The alleged act of penalisation being complained of relates to the deduction of pay arising from what the Complainant understood to be an approved absence.

On the 31^stJanuary 2018 the Complainant left his place of work for approximately one hour and 30 minutes to have an NCT test carried out on his car. It is the Complainants case that he had sought and received permission to leave and return during his four-hour shift. It is the Complainant’s contention that he was deducted the pay for the absence because he had some time earlier made a complainant to the WRC under the Act.

Respondent’scase

It is the Respondent’s case that it is not the policy or normal practise of the Respondent to pay an employee who takes time off during their working day to have an NCT test carried out. The decision to deduct pay was made as the absence was an unauthorised break during his shift and in no way was related to the complaint the Complainant had made under the Act.

The Law

Section 15 of the Act sets out the prohibition of penalisation of an employee by their employer. Section 15 (1) defines the protected acts and s15 (2)sets out what constitutes penalisation;

• 15.—(1) An employer shall not penalise an employee—

  ( a) for invoking any right of the employee to be treated, in respect of the employee’s conditions of employment, in the manner provided for by this Part, or

  ( b) for having in good faith opposed by lawful means an act which is unlawful under this Act, or

  ( c) for refusing to accede to a request by the employer to transfer from performing—

  (i) full-time work to performing part-time work, or

  (ii) part-time work to performing full-time work,

  or

  ( d) for giving evidence in any proceedings under this Act or giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a), (b) or (c).

  (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,

  but, where any such action with regard to the employee is in respect of the matter referred to in subsection (1)(c), that action shall not constitute a penalisation of the employee if both of the following conditions are complied with—

  (i) having regard to all the circumstances, there were substantial grounds both to justify the employer’s making the request concerned and the employer’s taking that action consequent on the employee’s refusal, and

  (ii) the taking of that action is in accordance with the employee’s contract of employment and the provisions of any other enactment of the kind to whichsection 20(2) applies.

  (3) If a penalisation of an employee, in contravention of subsection (1) , constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under Part 4 of the Workplace Relations Act 2015 and under those Acts.

  (4) In this section—

  “full-time work” means work which, if it were performed, would result in the person performing it being regarded as a full-time employee for the purposes of this Act;

  “part-time work” has the same meaning as it has insection 13.

Section 15 (2) (b) of the Act refers to any action that is”prejudicial to his or her employment”.It is not clear to the Court the basis on which the Respondent is alleging that failure to pay the Complainant for a period of time when he was absent from work could be considered prejudicial to his employment. Particularly, in circumstances where it has not been alleged that it was the ‘norm’ in the workplace to pay for such absences.

Determination

Having carefully considered the submissions of both parties and the oral arguments made on the day of the hearing, the Court determines that no penalisation as defined by s 15 (2) of the Act occurred.

The decision of the Adjudication Officer is upheld the appeal fails.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
MK______________________
28 February 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.