ADJUDICATION OFFICER DECISION AND RECOMMENDATION
CORRECTION ORDER ISSUED PURSUANT TO SECTION 41(16) OF THE WORKPLACE RELATIONS ACT 2015
This Order corrects the original Decision and Recommendation issued on 03/01/19 and should be read in conjunction with that Decision and Recommendation.
Adjudication Reference: ADJ-00012416
Parties:
| Complainant | Respondent |
Anonymised Parties | A Control Centre Operator | An Employer |
Representatives | In person | Jadel Naidoo instructed by Plunkett Kirwan & Co Solicitors |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016274-001 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00016274-002 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016274-004 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016274-005 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00016274-006 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00016274-007 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00016274-008 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00016274-009 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00016274-010 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00016274-011 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00016274-012 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00016274-013 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00016274-014 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00016274-015 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00016274-016 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016274-017 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006 | CA-00016274-018 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00016274-019 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 | CA-00016274-020 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act 2015 | CA-00016274-021 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act 2015 | CA-00016274-022 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act 2015 | CA-0001 6274-023 | 11/12/2017 |
Date of Adjudication Hearing: 28/08/2018
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 79 of the Employment Equality Acts, 1998 - 2015, Section 25 of the Equal Status Act, 2000, 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 was employed by the respondent as a Control Centre Operator from 25th June 2017 until 25th October 2017. The complainant was paid €461.53 gross per week. The complainant submitted 22 complaints to the Workplace Relations Commission (WRC) and was unrepresented at the adjudication hearing. The complainant, by her own admission, did not fully understand all of the complaints that she had submitted. She confirmed that she selected certain boxes on the complaint form if she felt that the subject matter of a particular section was appropriate to how she felt she had been treated while in the employment of the respondent. As the complainant was unrepresented, she was given two weeks to consider any issues that arose at the adjudication hearing and submit any additional information that she felt was appropriate. The respondent was also facilitated with additional time to submit its observations on the complainant’s post hearing submissions. Both parties submitted a number of items of additional correspondence after the adjudication hearing. The most recent correspondence was received by the WRC on 8th November 2018. In her post-hearing correspondence, the complainant stated her understanding that the additional two weeks was given to her so that she could amend her complaints and change/re submit other complaints if she considered it appropriate. The complainant is incorrect in that assumption. The additional two weeks was given to the complainant so that she could give further consideration to complaints she had submitted under the Employment Equality Acts, 1998-2015. It became clear at the adjudication hearing that the complainant was unsure under which of the nine grounds she wished to base her complaints. She confirmed that her Equality complaints, for the most part, related to how she felt she had been treated by the respondent generally but were not based on any of the nine specific grounds provided in the legislation. For the avoidance of any doubt, the complaints that will be considered in this adjudication decision are as originally submitted and are as follows: Organisation of Working Time Act, 1997 – Sunday Premium Payment of Wages Act, 1991 – Unlawful Deductions Organisation of Working Time Act, 1997 – Breaks (Night Shift) Organisation of Working Time Act, 1997 – Public Holidays Industrial Relations Act, 1946 – Hours of Work and Terms and Conditions of Employment Industrial Relations Acts – Unfair Dismissal (Less than 1 years’ service) *complaint submitted twice* Industrial Relations Act, 1969 – Disciplinary procedures, Bullying and Harassment, Acting Up and the existence of a Trade Dispute Employment Equality Act 1998. – Discrimination and Equal Pay Equal Status Act 2000 Organisation of Working Time Act, 1997 – Penalisation Provision of Information and Consultation Act, 2006 – Penalisation Employment Equality Act, 1998 – Penalisation Industrial Relations Amendment Act, 2015 – Penalisation Minimum Notice and Terms of Employment Act, 1973 – 3 complaints. |
Summary of Complainant’s Case:
The complainant stated that she had sought clarification in relation to her entitlements relating to Public Holidays and Sunday Premium payments from the respondent but had not received an answer to her queries. The complainant stated that she sought clarification on her entitlements by email of 4th September 2017 to her supervisor. The complainant stated that she did not receive a response to this email and subsequently sent an email to the Managing Director on 16th October 2017 on the matter. The complainant stated that a meeting took place on 22nd October 2017 where she was informed that Public Holiday and premium payments were included in salary and no further payments were due. The complainant stated that she was dissatisfied with this and sought a further meeting which took place on 25th October 2017. The complainant stated that at the meeting on 25th October 2017, she was treated very badly by the Managing Director, the Head of Operations and the Finance Officer. The complainant stated that she became very upset at their aggressive behaviour and had to leave early that day (approximately 5 minutes) as she was embarrassed and in tears. The complainant stated that the Managing Director said, “if you walk out the door you are not coming back” and asked for the return of a security swipe card. The complainant stated that the Finance Officer then repeatedly said to her that she was “walking out”. The complainant stated that she was dismissed by the respondent when she was asked for her security swipe card and that she never resigned. The complainant outlined that as well as being unfairly dismissed by the respondent, she was not paid the appropriate Sunday Premium, had unlawful deductions made from her salary, did not get the appropriate Public Holiday entitlements, was bullied and harassed, was discriminated against, victimised, penalised and denied her Minimum Notice entitlements. |
Summary of Respondent’s Case:
The respondent refutes the complaints. The respondent stated that the complainant resigned from the employment when she walked out of the meeting on 25th October 2017. The respondent stated in evidence that the Managing Director had been approached by the complainant in relation to her entitlements. The Head of Operations and the Managing Director had discussed the issue at a Board Meeting on Monday 21st October 2017 and as they were in Kilkenny on business that week, they decided that the most suitable solution was for the complainant to meet with the Finance Officer to discuss any outstanding issues. The respondent stated that the complainant sought a meeting on Friday 25th October 2017 in the afternoon and the meeting took place at approximately 5.10pm. The respondent sated that the meeting took place informally in the kitchen and that the Managing Director, Head of Operations and the Finance Officer were in attendance with the complainant. The respondent stated that the complainant did not want the Finance Officer in attendance at the meeting and was seeking to speak to only the Managing Director and the Head of Operations. The respondent stated that the complainant became annoyed and said, “I’m not putting up with this, I quit” and when she said she was leaving, she was then asked to return the swipe card. The Finance Officer stated in evidence that when the complainant walked out and down the stairs, she went down another set of stairs, met the complainant at the door, and reminded her that she was walking out of her job and to reconsider her actions. The respondent stated that it was unable to get a replacement for the complainant until February 2018 due to the Christmas period, winter weather conditions and the general difficulties in recruiting and training staff. The respondent also stated that a Workplace Relations Commission inspection had taken place, which covered the period of the complainant’s employment. The respondent stated that there were no identified breaches of employment legislation in the WRC Inspectors Report. In relation to the other issues, raised by the complainant the respondent does not accept that it treated the complainant in any of the ways claimed by her. The respondent stated that all meetings with her were courteous and that there was never any aggression towards her from anyone. |
Findings and Conclusions:
As previously stated, many of the complaints submitted were due to the complainant’s uncertainty in relation to the specific subject matter of each complaint. I have taken into account the submissions of both parties and the additional information that was submitted after the adjudication hearing. In respect of each specific complaint, I find as follows: CA-00016274-001 Organisation of Working Time Act, 1997 – Sunday Premium The complainant stated that she did not receive Sunday Premium while working for the respondent. The respondent stated that on the final payslip dated 1/11/2017, the complainant was paid an additional 3 days’ pay to cover Sunday premium. I note that on all of the payslips submitted by the respondent, it is only the basic pay that is included on each one. On that basis, I conclude that the complainant was not paid Sunday premium for the Sundays that she worked while she was in the employment. I accept the complainant’s position that the payslip of the 1/11/2017 paid a back week, a weeks’ notice pay and outstanding Holiday entitlements. Accordingly, I declare that this complaint is well founded. CA-00016274-002 Payment of Wages Act, 1991 – Unlawful Deductions The complainant stated that the respondent made an unlawful deduction from her salary on the 1st November 2017. The amount that the complainant said was an unlawful deduction amounted to €276.90. I note that €276.90 gross was paid to the complainant on 1st November 2017 and related to outstanding holidays. On that basis, the amount was not a deduction and therefore I find that this complaint is not well founded. CA-00016274-004 Organisation of Working Time Act, 1997 – Breaks (Night Shift) The complainant stated that this complaint related to breaks that were not received by staff employed on the night shift. The complainant stated that she did not work the night shift and that she got all of her breaks. Accordingly, I find that this complaint is not well founded. CA-00016274-005 Organisation of Working Time Act, 1997 – Public Holidays The complainant stated that she did not receive Public Holiday entitlement’s while in the employment of the respondent. The respondent stated that it included payment for the August Public Holiday and October Public Holiday in the payslip dated 1st November 2017. I note the contents of the payslip dated 1st November 2017 and am satisfied that the respondent discharged payment to the complainant for the two Public Holidays that occurred during her employment. However, the complainant had to raise the issue with the respondent on numerous occasions in respect of the August Public Holiday and payment was a number of months late. On that basis I am of the view that the respondent should compensate the complainant for the delay in discharging payment to her. CA-00016274-006 and CA-00016274-007 Industrial Relations Act, 1946 – Hours of Work and Terms and Conditions of Employment
These complaints were submitted by the complainant in relation to her hours of work and conditions of employment. The complaint was submitted in accordance with Section 45A of the Industrial Relations Act, 1946, which in this case relates to the application of the Security Industry Employment Regulation Order.
The respondent is not a Security Firm and the complainant is not a Security Operative within the meaning of the Security Industry Joint Labour Committee Establishment Order. Accordingly, I declare that complaint application reference numbers CA-00016274-006 and CA-00016274-007 are not well founded.
CA-00016274-008 and CA-00016274-009Industrial Relations Acts – Unfair Dismissal (Less than 1 years’ service) * Duplicate complaint* I have given careful consideration to the submissions of both parties on this issue. The complainant stated that she was dismissed at a meeting on 25th October 2017 when she was asked for the return of a Security Swipe Card at a meeting with the Managing Director, the Head of Operations and the Finance Officer. The parties are in direct conflict in relation to what transpired at the meeting of the 25th October 2017. The complainant stated that she had been verbally attacked by Management at the meeting and had to leave approximately 5 minutes before the end of the working day as she was embarrassed and in tears and did not want her colleagues to see her at that time. The complainant stated that when she said she was leaving, she meant she was going home and was subsequently dismissed and asked for the return of her Security Swipe Card. The complainant stated that as she no longer had the Swipe Card, she was not able to go to work the following day The respondent stated that the complainant did not want the Finance Officer at the meeting on 25th October 2017 and when the Head of Operations brought the Finance Officer to the meeting, the complainant stated that she had enough and was leaving. The Head of Operations confirmed in evidence, that the complainant was very annoyed at the meeting and said “I quit” at which point she was asked to return the Security Swipe Card. The respondent quoted the case of Murray v Roackabill Shellfish Ltd 2012 ELR 331 in support of its position that the complainant did not act reasonably in resigning from the employment. The respondent stated that the complainant should have raised a grievance in line with the respondent’s procedures which she did not do. I note that there was no contact between the parties between the 25th October 2017 and 2nd November 2017 when the complainant emailed the respondent in relation to resolving matters between them. The respondent replied on the 7th November 2017 accepting the complainant’s resignation. In all of the circumstances of this issue, and having heard all of the evidence as to what happened on the meeting of 25th October 2017, I have concluded on the balance of probabilities that the complainant walked out of her job on the evening of 25th October 2017.The Finance Officer gave evidence that she tried to get the complainant to remain in the employment and that matters could be resolved. For her part, the complainant went home that evening and made no further contact with the respondent for approximately one week. I do not consider it plausible that not having a swipe card was the reason that the complainant did not attend work the next day. The complainant was obviously a competent and assertive employee and could have contacted the respondent the next day with a view to resolving issues as had been suggested to her by the Finance Officer the previous evening. In conclusion, I find that the complainant resigned from her employment and was not unfairly dismissed as claimed. Accordingly, I declare that this complaint is not well founded. CA-00016274-010, CA-00016274-011, CA-00016274-012 and CA-00016274-013 Industrial Relations Act, 1969 – Disciplinary procedures, Bullying and Harassment, Acting Up and the existence of a Trade Dispute. The complainant stated that she was bullied and harassed by the respondent during her employment but specifically at a meeting on 25th October 2017 where she claims to have been dismissed.
The complainant’s Unfair Dismissal complaint (CA-00016274-008/9) as detailed above is not well founded. The complainant resigned from her employment on 25th October 2017 and did not raise any grievances or invoke any of the respondent’s policies and procedures in relation to her grievances.
In those circumstances, I find that the respondent could not have resolved issues of which it was not aware, and the complainant did not remain in the employment to raise the issues and attempt to resolve her grievances with her employer.
Accordingly, I do not consider it appropriate to make any recommendations in the current circumstances of this complaint.
Note:Complaint reference CA-00016274-012 was withdrawn at the adjudication hearing as the complainant accepted she had not been acting up into another role while in the employment of the respondent.
CA-00016274-014 and CA-00016274-015Employment Equality Act 1998. – Discrimination and Equal Pay The complainant submitted complaints to the WRC under the Employment Equality Acts, 1998-2015. The complainant did not specify under which of the nine grounds she wished to make her complaints and was given an additional two weeks to consider the matter. The complainant confirmed that her complaints under the Employment Equality legislation were not based on any of the nine grounds. She stated that the complaints were submitted on the basis of how she had been spoken to and treated generally by the respondent. On the basis that the complainant did not specify her complaints under the employment equality legislation, I find that the complainant has not established facts from which an inference of discrimination can be drawn. On that basis, she has failed to establish a prima facie case of discrimination. Accordingly, I declare that the complaints are not well founded. CA-00016274-0016 Equal Status Act 2000 This complaint was withdrawn in the complainant’s post-hearing correspondence. CA-00016274-017 Organisation of Working Time Act, 1997 – Penalisation The complainant stated that she was penalised by the respondent when she was dismissed for lawfully opposing a breach of the Organisation of Working Time Act, 1997. In complaint application CA-00016274-008/9 it was found that the complainant had resigned from her employment and was not dismissed. In those circumstances the complaint that the complainant was penalised by dismissal cannot succeed. Accordingly, I declare that the complaint is not well founded. CA-00016274-018 Provision of Information and Consultation Act, 2006 – Penalisation The complainant stated that she was penalised as a staff representative under the Information and Consultation Act, 2006. The respondent stated that the act has no application to the respondent’s business as the complainant is not a staff representative and that the respondent does not have sufficient employees for the provisions of the Act to apply. On the basis of the non-application of the Act in the respondent’s business, I declare that the complaint is not well founded. CA-00016274-019 Employment Equality Act, 1998 – Penalisation The complaints under the Employment Equality Acts 1998 -2015 are not well founded as the complainant did not specify under which of the nine grounds she wished to base her complaints. CA-00016274-020 Industrial Relations Amendment Act, 2015 – Penalisation The complainant stated that she was penalised by the respondent when she was dismissed. In complaint application CA-00016274-008/9 it was found that the complainant had resigned from her employment and was not dismissed. In those circumstances the complaint that the complainant was penalised by dismissal cannot succeed. Accordingly, I declare that the complaint is not well founded. CA-00016274-021 CA-00016274-022 and CA-00016274-023Minimum Notice and Terms of Employment Act, 1973 – 3 complaints. The decision in the complainant’s Unfair Dismissal complaint (CA-00016274-008/9) found that the complainant resigned from her employment. In those circumstances, the entitlement to notice does not arise. In any event the complainant stated that she was paid 1 weeks’ notice on 1st November 2017. Accordingly, I declare that the within complaints are not well founded. |
Decision:
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.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the disputes.
Having considered the submissions of both parties and the additional information submitted, I make the following Decisions/Recommendations: CA-00016274-001: This complaint is well founded. I am satisfied that the payments made to the complainant on 1st November 2017 were not in respect of outstanding premia for Sunday work. The respondent is directed to pay the complainant €500 in compensation.
CA-00016274-002: This complaint is not well founded.
CA-00016274-004: This complaint is not well founded
CA-00016274-005: This complaint is well founded in part. The respondent did not apply Public Holiday entitlements for the August 2017 Public Holiday until November 2017. The respondent is directed to pay the complainant €100 in compensation.
CA-00016274-006: This complaint is not well founded.
CA-00016274-007: This complaint is not well founded.
CA-00016274-008: This complaint is not well founded.
CA-00016274-009: This complaint is a duplication of CA-00016274-008
CA-00016274-010: I do not recommend in favour of the complainant.
CA-00016274-011: I do not recommend in favour of the complainant.
CA-00016274-012: This complaint was withdrawn.
CA-00016274-013: I do not recommend in favour of the complainant.
CA-00016274-014: This complaint is not well founded.
CA-00016274-015: This complaint is not well founded.
CA-00016274-016: This complaint was withdrawn
CA-00016274-017: This complaint is not well founded.
CA-00016274-018: This complaint is not well founded.
CA-00016274-019: This complaint is not well founded.
CA-00016274-020: This complaint is not well founded.
CA-00016274-021: This complaint is not well founded.
CA-00016274-022: This complaint is not well founded.
CA-00016274-023: This complaint is not well founded.
|
Dated: 3rd January 2019
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Unfair Dismissal, Discrimination, Harassment, Victimisation, Disciplinary Procedures, Penalisation, Public Holidays, Sunday Premium, Breaks, Unlawful Deductions. |
ADJUDICATION OFFICER DECISION AND RECOMMENDATION
Adjudication Reference: ADJ-00012416
Parties:
| Complainant | Respondent |
Anonymised Parties | A Control Centre Operator | An Employer |
Representatives | In person | Jadel Naidoo instructed by Plunkett Kirwan & Co Solicitors |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016274-001 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00016274-002 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016274-004 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016274-005 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00016274-006 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00016274-007 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00016274-008 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00016274-009 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00016274-010 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00016274-011 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00016274-012 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00016274-013 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00016274-014 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00016274-015 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00016274-016 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016274-017 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006 | CA-00016274-018 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00016274-019 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 | CA-00016274-020 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016274-021 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016274-022 | 11/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016274-023 | 11/12/2017 |
Date of Adjudication Hearing: 28/08/2018
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 79 of the Employment Equality Acts, 1998 - 2015, Section 25 of the Equal Status Act, 2000, 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 was employed by the respondent as a Control Centre Operator from 25th June 2017 until 25th October 2017. The complainant was paid €461.53 gross per week. The complainant submitted 22 complaints to the Workplace Relations Commission (WRC) and was unrepresented at the adjudication hearing. The complainant, by her own admission, did not fully understand all of the complaints that she had submitted. She confirmed that she selected certain boxes on the complaint form if she felt that the subject matter of a particular section was appropriate to how she felt she had been treated while in the employment of the respondent. As the complainant was unrepresented, she was given two weeks to consider any issues that arose at the adjudication hearing and submit any additional information that she felt was appropriate. The respondent was also facilitated with additional time to submit its observations on the complainant’s post hearing submissions. Both parties submitted a number of items of additional correspondence after the adjudication hearing. The most recent correspondence was received by the WRC on 8th November 2018. In her post-hearing correspondence, the complainant stated her understanding that the additional two weeks was given to her so that she could amend her complaints and change/re submit other complaints if she considered it appropriate. The complainant is incorrect in that assumption. The additional two weeks was given to the complainant so that she could give further consideration to complaints she had submitted under the Employment Equality Acts, 1998-2015. It became clear at the adjudication hearing that the complainant was unsure under which of the nine grounds she wished to base her complaints. She confirmed that her Equality complaints, for the most part, related to how she felt she had been treated by the respondent generally but were not based on any of the nine specific grounds provided in the legislation. For the avoidance of any doubt, the complaints that will be considered in this adjudication decision are as originally submitted and are as follows: Organisation of Working Time Act, 1997 – Sunday Premium Payment of Wages Act, 1991 – Unlawful Deductions Organisation of Working Time Act, 1997 – Breaks (Night Shift) Organisation of Working Time Act, 1997 – Public Holidays Industrial Relations Act, 1946 – Hours of Work and Terms and Conditions of Employment Industrial Relations Acts – Unfair Dismissal (Less than 1 years’ service) *complaint submitted twice* Industrial Relations Act, 1969 – Disciplinary procedures, Bullying and Harassment, Acting Up and the existence of a Trade Dispute Employment Equality Act 1998. – Discrimination and Equal Pay Equal Status Act 2000 Organisation of Working Time Act, 1997 – Penalisation Provision of Information and Consultation Act, 2006 – Penalisation Employment Equality Act, 1998 – Penalisation Industrial Relations Amendment Act, 2015 – Penalisation Minimum Notice and Terms of Employment Act, 1973 – 3 complaints. |
Summary of Complainant’s Case:
The complainant stated that she had sought clarification in relation to her entitlements relating to Public Holidays and Sunday Premium payments from the respondent but had not received an answer to her queries. The complainant stated that she sought clarification on her entitlements by email of 4th September 2017 to her supervisor. The complainant stated that she did not receive a response to this email and subsequently sent an email to the Managing Director on 16th October 2017 on the matter. The complainant stated that a meeting took place on 22nd October 2017 where she was informed that Public Holiday and premium payments were included in salary and no further payments were due. The complainant stated that she was dissatisfied with this and sought a further meeting which took place on 25th October 2017. The complainant stated that at the meeting on 25th October 2017, she was treated very badly by the Managing Director, the Head of Operations and the Finance Officer. The complainant stated that she became very upset at their aggressive behaviour and had to leave early that day (approximately 5 minutes) as she was embarrassed and in tears. The complainant stated that the Managing Director said, “if you walk out the door you are not coming back” and asked for the return of a security swipe card. The complainant stated that the Finance Officer then repeatedly said to her that she was “walking out”. The complainant stated that she was dismissed by the respondent when she was asked for her security swipe card and that she never resigned. The complainant outlined that as well as being unfairly dismissed by the respondent, she was not paid the appropriate Sunday Premium, had unlawful deductions made from her salary, did not get the appropriate Public Holiday entitlements, was bullied and harassed, was discriminated against, victimised, penalised and denied her Minimum Notice entitlements. |
Summary of Respondent’s Case:
The respondent refutes the complaints. The respondent stated that the complainant resigned from the employment when she walked out of the meeting on 25th October 2017. The respondent stated in evidence that the Managing Director had been approached by the complainant in relation to her entitlements. The Head of Operations and the Managing Director had discussed the issue at a Board Meeting on Monday 21st October 2017 and as they were in Kilkenny on business that week, they decided that the most suitable solution was for the complainant to meet with the Finance Officer to discuss any outstanding issues. The respondent stated that the complainant sought a meeting on Friday 25th October 2017 in the afternoon and the meeting took place at approximately 5.10pm. The respondent sated that the meeting took place informally in the kitchen and that the Managing Director, Head of Operations and the Finance Officer were in attendance with the complainant. The respondent stated that the complainant did not want the Finance Officer in attendance at the meeting and was seeking to speak to only the Managing Director and the Head of Operations. The respondent stated that the complainant became annoyed and said, “I’m not putting up with this, I quit” and when she said she was leaving, she was then asked to return the swipe card. The Finance Officer stated in evidence that when the complainant walked out and down the stairs, she went down another set of stairs, met the complainant at the door, and reminded her that she was walking out of her job and to reconsider her actions. The respondent stated that it was unable to get a replacement for the complainant until February 2018 due to the Christmas period, winter weather conditions and the general difficulties in recruiting and training staff. The respondent also stated that a Workplace Relations Commission inspection had taken place, which covered the period of the complainant’s employment. The respondent stated that there were no identified breaches of employment legislation in the WRC Inspectors Report. In relation to the other issues, raised by the complainant the respondent does not accept that it treated the complainant in any of the ways claimed by her. The respondent stated that all meetings with her were courteous and that there was never any aggression towards her from anyone. |
Findings and Conclusions:
As previously stated, many of the complaints submitted were due to the complainant’s uncertainty in relation to the specific subject matter of each complaint. I have taken into account the submissions of both parties and the additional information that was submitted after the adjudication hearing. In respect of each specific complaint, I find as follows: CA-00016274-001 Organisation of Working Time Act, 1997 – Sunday Premium The complainant stated that she did not receive Sunday Premium while working for the respondent. The respondent stated that on the final payslip dated 1/11/2017, the complainant was paid an additional 3 days’ pay to cover Sunday premium. I note that on all of the payslips submitted by the respondent, it is only the basic pay that is included on each one. On that basis, I conclude that the complainant was not paid Sunday premium for the Sundays that she worked while she was in the employment. I accept the complainant’s position that the payslip of the 1/11/2017 paid a back week, a weeks’ notice pay and outstanding Holiday entitlements. Accordingly, I declare that this complaint is well founded. CA-00016274-002 Payment of Wages Act, 1991 – Unlawful Deductions The complainant stated that the respondent made an unlawful deduction from her salary on the 1st November 2017. The amount that the complainant said was an unlawful deduction amounted to €276.90. I note that €276.90 gross was paid to the complainant on 1st November 2017 and related to outstanding holidays. On that basis, the amount was not a deduction and therefore I find that this complaint is not well founded. CA-00016274-004 Organisation of Working Time Act, 1997 – Breaks (Night Shift) The complainant stated that this complaint related to breaks that were not received by staff employed on the night shift. The complainant stated that she did not work the night shift and that she got all of her breaks. Accordingly, I find that this complaint is not well founded.
CA-00016274-005 Organisation of Working Time Act, 1997 – Public Holidays The complainant stated that she did not receive Public Holiday entitlement’s while in the employment of the respondent. The respondent stated that it included payment for the August Public Holiday and October Public Holiday in the payslip dated 1st November 2017. I note the contents of the payslip dated 1st November 2017 and am satisfied that the respondent discharged payment to the complainant for the two Public Holidays that occurred during her employment. However, the complainant had to raise the issue with the respondent on numerous occasions in respect of the August Public Holiday and payment was a number of months late. On that basis I am of the view that the respondent should compensate the complainant for the delay in discharging payment to her. CA-00016274-006 and CA-00016274-007 Industrial Relations Act, 1946 – Hours of Work and Terms and Conditions of Employment
These complaints were submitted by the complainant in relation to her hours of work and conditions of employment. The complaint was submitted in accordance with Section 45A of the Industrial Relations Act, 1946, which in this case relates to the application of the Security Industry Employment Regulation Order.
The respondent is not a Security Firm and the complainant is not a Security Operative within the meaning of the Security Industry Joint Labour Committee Establishment Order. Accordingly, I declare that complaint application reference numbers CA-00016274-006 and CA-00016274-007 are not well founded.
CA-00016274-008 and CA-00016274-009Industrial Relations Acts – Unfair Dismissal (Less than 1 years’ service) * Duplicate complaint* I have given careful consideration to the submissions of both parties on this issue. The complainant stated that she was dismissed at a meeting on 25th October 2017 when she was asked for the return of a Security Swipe Card at a meeting with the Managing Director, the Head of Operations and the Finance Officer. The parties are in direct conflict in relation to what transpired at the meeting of the 25th October 2017. The complainant stated that she had been verbally attacked by Management at the meeting and had to leave approximately 5 minutes before the end of the working day as she was embarrassed and in tears and did not want her colleagues to see her at that time. The complainant stated that when she said she was leaving, she meant she was going home and was subsequently dismissed and asked for the return of her Security Swipe Card. The complainant stated that as she no longer had the Swipe Card, she was not able to go to work the following day The respondent stated that the complainant did not want the Finance Officer at the meeting on 25th October 2017 and when the Head of Operations brought the Finance Officer to the meeting, the complainant stated that she had enough and was leaving. The Head of Operations confirmed in evidence, that the complainant was very annoyed at the meeting and said “I quit” at which point she was asked to return the Security Swipe Card. The respondent quoted the case of Murray v Roackabill Shellfish Ltd 2012 ELR 331 in support of its position that the complainant did not act reasonably in resigning from the employment. The respondent stated that the complainant should have raised a grievance in line with the respondent’s procedures which she did not do. I note that there was no contact between the parties between the 25th October 2017 and 2nd November 2017 when the complainant emailed the respondent in relation to resolving matters between them. The respondent replied on the 7th November 2017 accepting the complainant’s resignation. In all of the circumstances of this issue, and having heard all of the evidence as to what happened on the meeting of 25th October 2017, I have concluded on the balance of probabilities that the complainant walked out of her job on the evening of 25th October 2017.The Finance Officer gave evidence that she tried to get the complainant to remain in the employment and that matters could be resolved. For her part, the complainant went home that evening and made no further contact with the respondent for approximately one week. I do not consider it plausible that not having a swipe card was the reason that the complainant did not attend work the next day. The complainant was obviously a competent and assertive employee and could have contacted the respondent the next day with a view to resolving issues as had been suggested to her by the Finance Officer the previous evening. In conclusion, I find that the complainant resigned from her employment and was not unfairly dismissed as claimed. Accordingly, I declare that this complaint is not well founded. CA-00016274-010, CA-00016274-011, CA-00016274-012 and CA-00016274-013 Industrial Relations Act, 1969 – Disciplinary procedures, Bullying and Harassment, Acting Up and the existence of a Trade Dispute. The complainant stated that she was bullied and harassed by the respondent during her employment but specifically at a meeting on 25th October 2017 where she claims to have been dismissed.
The complainant’s Unfair Dismissal complaint (CA-00016274-008/9) as detailed above is not well founded. The complainant resigned from her employment on 25th October 2017 and did not raise any grievances or invoke any of the respondent’s policies and procedures in relation to her grievances.
In those circumstances, I find that the respondent could not have resolved issues of which it was not aware, and the complainant did not remain in the employment to raise the issues and attempt to resolve her grievances with her employer.
Accordingly, I do not consider it appropriate to make any recommendations in the current circumstances of this complaint.
Note:Complaint reference CA-00016274-012 was withdrawn at the adjudication hearing as the complainant accepted she had not been acting up into another role while in the employment of the respondent.
CA-00016274-014 and CA-00016274-015Employment Equality Act 1998. – Discrimination and Equal Pay The complainant submitted complaints to the WRC under the Employment Equality Acts, 1998-2015. The complainant did not specify under which of the nine grounds she wished to make her complaints and was given an additional two weeks to consider the matter. The complainant confirmed that her complaints under the Employment Equality legislation were not based on any of the nine grounds. She stated that the complaints were submitted on the basis of how she had been spoken to and treated generally by the respondent. On the basis that the complainant did not specify her complaints under the employment equality legislation, I find that the complainant has not established facts from which an inference of discrimination can be drawn. On that basis, she has failed to establish a prima facie case of discrimination. Accordingly, I declare that the complaints are not well founded. CA-00016274-0016 Equal Status Act 2000 This complaint was withdrawn in the complainant’s post-hearing correspondence. CA-00016274-017 Organisation of Working Time Act, 1997 – Penalisation The complainant stated that she was penalised by the respondent when she was dismissed for lawfully opposing a breach of the Organisation of Working Time Act, 1997. In complaint application CA-00016274-008/9 it was found that the complainant had resigned from her employment and was not dismissed. In those circumstances the complaint that the complainant was penalised by dismissal cannot succeed. Accordingly, I declare that the complaint is not well founded. CA-00016274-018 Provision of Information and Consultation Act, 2006 – Penalisation The complainant stated that she was penalised as a staff representative under the Information and Consultation Act, 2006. The respondent stated that the act has no application to the respondent’s business as the complainant is not a staff representative and that the respondent does not have sufficient employees for the provisions of the Act to apply. On the basis of the non-application of the Act in the respondent’s business, I declare that the complaint is not well founded. CA-00016274-019 Employment Equality Act, 1998 – Penalisation The complaints under the Employment Equality Acts 1998 -2015 are not well founded as the complainant did not specify under which of the nine grounds she wished to base her complaints. CA-00016274-020 Industrial Relations Amendment Act, 2015 – Penalisation The complainant stated that she was penalised by the respondent when she was dismissed. In complaint application CA-00016274-008/9 it was found that the complainant had resigned from her employment and was not dismissed. In those circumstances the complaint that the complainant was penalised by dismissal cannot succeed. Accordingly, I declare that the complaint is not well founded.
CA-00016274-021 CA-00016274-022 and CA-00016274-023Minimum Notice and Terms of Employment Act, 1973 – 3 complaints. The decision in the complainant’s Unfair Dismissal complaint (CA-00016274-008/9) found that the complainant resigned from her employment. In those circumstances, the entitlement to notice does not arise. In any event the complainant stated that she was paid 1 weeks’ notice on 1st November 2017. Accordingly, I declare that the within complaints are not well founded. |
Decision:
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.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the disputes.
Having considered the submissions of both parties and the additional information submitted, I make the following Decisions/Recommendations: CA-00016274-001: This complaint is well founded. I am satisfied that the payments made to the complainant on 1st November 2017 were not in respect of outstanding premia for Sunday work. The respondent is directed to pay the complainant €500 in compensation.
CA-00016274-002: This complaint is not well founded.
CA-00016274-004: This complaint is not well founded
CA-00016274-005: This complaint is well founded in part. The respondent did not apply Public Holiday entitlements for the August 2017 Public Holiday until November 2017. The respondent is directed to pay the complainant €100 in compensation.
CA-00016274-006: This complaint is not well founded.
CA-00016274-007: This complaint is not well founded.
CA-00016274-008: This complaint is not well founded.
CA-00016274-009: This complaint is a duplication of CA-00016274-008
CA-00016274-010: I do not recommend in favour of the complainant.
CA-00016274-011: I do not recommend in favour of the complainant.
CA-00016274-012: This complaint was withdrawn.
CA-00016274-013: I do not recommend in favour of the complainant.
CA-00016274-014: This complaint is not well founded.
CA-00016274-015: This complaint is not well founded.
CA-00016274-016: This complaint was withdrawn
CA-00016274-017: This complaint is not well founded.
CA-00016274-018: This complaint is not well founded.
CA-00016274-019: This complaint is not well founded.
CA-00016274-020: This complaint is not well founded.
CA-00016274-021: This complaint is not well founded.
CA-00016274-022: This complaint is not well founded.
CA-00016274-023: This complaint is not well founded.
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Dated: 3rd January 2019
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Unfair Dismissal, Discrimination, Harassment, Victimisation, Disciplinary Procedures, Penalisation, Public Holidays, Sunday Premium, Breaks, Unlawful Deductions. |