ADJUDICATION OFFICER DECISION and Recommendation
Adjudication Reference:
Parties:
| Complainant | Respondent |
Parties |
| Complainant | Respondent |
Anonymised Parties | A Support Worker | A Care Provider |
Representatives |
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Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00019379-002 | ||
CA-00019379-004 | ||
CA-00019379-005 | ||
CA-00019379-006 | ||
CA-00019379-007 | ||
CA-00019379-008 | ||
CA-00019379-009 | ||
CA-00019379-010 | ||
CA-00019379-011 | ||
CA-00019379-012 | ||
CA-00019379-013 | ||
CA-00019379-014 | ||
CA-00019379-015 | ||
CA-00019379-016 | ||
CA-00019379-017 | ||
CA-00019379-018 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act , 1991, Section 27 of the Organisation of Working Time Act, 1997 ,Section 7 of the Terms of Employment ( Information) Act, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 45A of the Industrial relations Act , 1946, Section 13 of the Industrial Relations Acts 1969, Schedule 2 of the Employment Permits Act , 2006 and Section 28 of the Safety Health and Welfare at Work Act , 2005 following the referral of the complaints and Dispute to me by the Director General, I inquired into the complaints and Dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.
Background:
This case arose following the submission of 18 complaints seeking Adjudication, which were received by the WRC on 22 May 2018. Four earlier complaints had been submitted to the WRC Inspectorate. The Complaints are lodged under 6 pieces of legislation and will be addressed below. The complaints arise from a period of employment June 4, 2013 to 4 December 2017. I introduced details of Section 41(6) of Workplace Relations Act 2015 on statutory time limits associated with employment claims early in the hearing and asked the parties to reflect on the interface of several claims against this statutory limitation period. The Complainant was received by the WRC on 22 May 2018. The last day worked by the complainant was submitted as 4 December 2017. This identifies the cognisable period for the claim as 23 November 2017 -22 May 2018. As the hearing progressed, it became clear that the Respondent in the case was not closed to revisiting the employment relationship. I requested that the parties take a four-week period to explore any potential to build on this fledgling concept without prejudice to the outcome of the substantive complaints. Both parties agreed on the day and were to revert by April 12, 2019. I wrote to the parties on 10 April 2019 and subsequently learned that there was no consensus on an agreed way forward. I was requested to issue my decision in the case. There were two documents on file which delineated the complaints requiring Adjudication. These were the initial acknowledgement of the claims dated 15 June 2018 and the Invitation extended by both parties to attend the hearing dated 8 February 2019. The first document required further input from the complainant. The second document serves as the master copy of the entire 18 complaints submitted for Adjudication. I have endeavoured to frame my findings and conclusions as a direct consequence of the complaints listed on the latter-day document of 8 February. I have titled all complaints listed in terms of the alleged contravention of each piece of legislation CA -00019379-002 under Payment of Wages Act 1991 was withdrawn at hearing. CA -00019379-017 under the Employment Payments Act, 2006 was withdrawn at hearing. |
Summary of Complainant’s Case:
The Complainant outlined her case. She had relocated to a geographical location in the South of Ireland in 2011. She had initially applied to become a Volunteer with the Respondent, a Caring Organisation, but had not received a response to her application. The Complainant started work on a Community Employment Scheme as a Support worker(19.5hrs) with the Respondent in June 2013. She was delighted to be working there. She went on to become directly employed in a hybrid capacity as Support Worker for which she held a permanent appointment and a Relief contract which supplemented this work. The Complainant gave her final salary as €24,029.92 in respect of a 29-hr specific purpose contract and 8/10 relief hours. The Complainant elected to tick all three redress options in the case of her unfair dismissal claim and indicated that she had not worked since her date of termination of employment. The Complainant outlined that she had met Service User A in the service and was assigned to work with her high needs a lot. The Complainant hours were increased from the CES Scheme hours to 29.5hrs. She did undertake a trial two-hour shift of 5 am to 7am with Service User A but this was discontinued. The Complainant submitted that administrative practices at the Service served to cause her some confusion on her actual role and purpose at times. During 2014, the position of Service User A support worker was advertised, and the complainant was appointed on June 3, 2014 on €11.80, new entrant hourly rate. The Complainant was very committed to Service User A welfare and observed her interest in paintings which culminated in a successful exhibition from which Service User A funded her personal holiday. Funding was approved for additional hours of care and the Complainant and a colleague joined her as the second part of the care team over the following three years. Service User A was central in her care and the complainant advocated for various services for her. The Complainant also recalled that she works concurrently with Service User B from June 2015 to November 2015. This gentleman presented as a challenging case until he was hospitalised. The Complainant continued involved in his care until funding was withdrawn to a level of 2 hrs a week. The Complainant also volunteered in his care. The Complainant contended that she frequently exceeded a 40-hour week over a three-year period. Overtime was not paid, and she did not receive rest breaks. The Complainant confirmed that she had attended Appraisals with her Area Manager. However, she described this relationship as one of “ebb and Flow” and felt excluded by Mr A. The Complainant indicated that she had experienced an ad hoc rostering system where she would lose hours at the behest of Mr A, Area Manager and she never received more than the basic pay rate. She submitted that she had raised this as an issue, but it remained unresolved. The Complainant contended that she experienced a toxic workplace without hope of change. In July 2017, the complainants counter part in the care of Service User A left. The Complainant was unhappy in her location and requested to take up her counterparts’ position. The Complainant was permitted to undertake the locum until the position was advertised. The Complainant went on annual leave September 11-25, 2017 and trained two people on the care of Service User A. She told Mr A that she would “not be back for interview before September 25” While, on leave, she was invited to interview on 21 September. Mr A had told the complainant that he understood that the interview was scheduled on 27 September. The Complainant contended that email communication was mixed up to her detriment, but she was unable to secure detail of this as she was blocked from her account. The Complainant and her colleagues understood that she had a good chance of getting the position left vacant by her counterpart. The position was advertised externally. The Complainant attended a three-person interview for the position of Support Worker on 27 September 2017. She submitted that she failed the interview by 1% and was denied feedback initially until she secured this from the Head of Human Resources, which she found very upsetting. The successful candidate had never met Service User A. The Complainant was extremely disappointed as she contended that she had repeatedly overextended herself for the service and believed that she deserved appointment to the position. As a result, she felt increasingly isolated at work, unaided by the interpersonal difficulties exhibited by Mr A. The Complainant experienced a final indignity when she was asked to train the incumbent staff hired through the September competition. She refused to undertake this request. The Complainant submitted that she had raised concerns regarding a client’s welfare in mid to late October 2017, but Mr A had not engaged with her The Complainant contended that she was compelled to resign her position and submitted 4 weeks’ notice of her intention to leave , she contended that she had been bullied .She had returned to her core position in the care of Service User A , but was very upset at being rejected for the position of her counterpart .The Complainant continues to volunteer with Service User A and she had not been replaced outside repeated relief workers . The Complainant was dissatisfied with the brevity of her reference and could not obtain any satisfaction at any level of the Respondent Organisation. She confirmed that she had received Interview Feedback from a Human Resource representative. In response to the Respondent questions, the complainant contended that there was no point in raising a grievance when staff relations were completely broken between her and the service and she could not see a way back. She had not undertaken Interview skills in the respondent employment. She had availed of Counselling provide by the Respondent CA -00019379-004 The Complainant submitted that she had not been given her minimum rate of pay set out in an Employment Regulation Order. When asked to expand on that claim, she confirmed that her knowledge of the Employment Legislation was limited. The Complainant went on to confirm that her employment had not been covered by an Employment Regulation Order. CA -00019379-005 Daily Rest Period, Section 11 of Organisation of Working Time Act ,1997 The Complainant submitted that she did not receive a daily rest period during her work. The Complainant did not submit details of the contraventions of the Act but stated that it was a hallmark of the duration of her employment and on 22 May 2017. CA -00019379-006 Rest breaks: Section 12 of Organisation of Working Time Act, 1997 The Complainant submitted that she did not get breaks in accordance with the provisions of the Organisation of Working Time Act, 1997. She recalled a period of 3 days where she had not got any breaks. She had not availed of compensatory rest breaks as this process had not been explained. CA -00019379-007 maximum working week, Section 15, Organisation of Working Time Act ,1997 The Complainant submitted that on many occasions during her employment she worked up to 40 plus hours a week, imposing a 70 plus working hour week on her. CA-00019379-008 Public Holidays, Section 21 of the Act. The Complainant submitted that she had not received her Public Holiday entitlements as provided for in the Organisation of Working Time Act, 1997 CA-00019379-009 Notification of Working Hours, Section 17 of the Act. The Complainant had submitted that she had not been notified of start and finish times in advance. This arose if someone was sick and she might be asked to stay on. She believed that she was not permitted to refuse work when offered. CA -00019379-010 The Complainant submitted that she had not been notified of any additional hours in advance CA-00019379-011 Night Hours, Section 16(2) of the Act The Complainant submitted that she worked excessive night hours CA-00019379-012 ERO, Section 45A Industrial Relations Act, 1946 The Complainant submitted that she had not received paid annual leave as set out in an Employment Regulation Order CA-00019379-013 Written Statement of Employment, Section 3 of Terms of Employment (Information) Act, 1994 The Complainant submitted that she has not received a statement in writing of her terms of employment. CA -00019379-014 Section 5 of the Terms of Employment (Information) Act, 1994 The Complainant submitted that she had not been notified in writing of a change to her terms of employment. CA-00019379-015 Claim for Constructive Dismissal Unfair Dismissals Acts 1977-2015 The Complainant submitted that she had been compelled to leave her position directly because of the way she had been treated. She has claimed constructive dismissal. I have outlined the case made in earlier paragraphs. CA-00019379-016 Section 13 of the Industrial Relations Act, 1969. The Claimant submitted that she had experienced bullying in the workplace and deserved far more respect that she had directed towards her. CA-00019379-017 Withdrawn (Employment Permit Act, 2006) CA-00019379-018 Section 27, Safety Health and Welfare at Work Act, 2005 The Complainant submitted that she had been penalised in respect of complaints raised during her work. The Complainant submitted that she had operated the Hoist (lifting device) on her own regularly between 2015-2017. She understood this to be illegal. She submitted that she had made a complaint dated 22 May 2018 and had been penalised. She confirmed that she had never undertaking any training in Moving and Handling.
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Summary of Respondent’s Case:
The respondent Human Resource Manager outlined that the complainant had worked on a series of fixed term contracts from 23 September 2013 under being offered a contract of indefinite duration on January 1, 2016 (Relief Support Worker) She continued fixed term contracts in 2016 and 2017 in her parallel role of Support worker. The Complainant resigned her position date 4 December 2017. It was the Respondent position that the Complainant had been safely inducted and trained in relation to all Company policies and procedures. The Respondent contested all claims raised by the Complainant and submitted that several were misconceived as the complainant had acknowledged receipt of policies and procedures pertinent to her employment. The Respondent recognised the complainant as a caring support and relief worker and saw no reason for her to resign her position. The Respondent was represented by their Human Resource Manager, who gave some background to the Selection process surrounding the Interview of September 25, 2017. She submitted that the Interview for Support Worker (September 2017) had been a transparent and structured format. All posts were requiring to be interviewed. She understood that the complainant had received feedback on her performance at interview from the Human Resource manager. The Respondent accepted that the complainant was disappointed that she had not succeeded at interview, but this did not negatively affect her base contract with the respondent. The Respondent confirmed that the complainant had not formalised a complaint in that regard. She addressed the brevity of the reference as this is a common approach to reference preparation. CA -00019379-004 The Respondent submitted that this claim was misconceived as EROs are only applicable to two Industry sectors, Cleaning and Security. The Complainant did not fit either of those employment profiles. CA -00019379-005, Section 11, Rest Periods The Respondent denied that the Complainant had not received a daily rest period and demonstrated records of time sheets compiled by the complainant and her line Manager, where the number of hours worked recorded number of hours worked excluding meal breaks and rest breaks. The records went up to 31 October 2017 and delineated that the information recorded was in relation to daily and weekly hours worked being correct. CA -00019379-006 Section 12, Rest breaks The Respondent submitted that as the Organisation provides care to vulnerable individuals, it is not always possible for employees to take their breaks within the allocated hours, however compensatory rest periods are utilised. CA -00019379-007 Section 15(1) Maximum Hours The Respondent submitted that the complainant did not average working hours more than 48 hours over a 12-month reference period during her employment. 2014 39.22hrs average :49 weeks 2015 39.22 :52 weeks 2016 37.33 :52 weeks 2017: 35.05;52 weeks CA-00019379-008 Section 21 Public Holidays The Respondent disputed that the complainant had not availed of her public holiday entitlement and submitted a range of pay slips which recorded payment of public holidays worked. CA-00019379-009 Notification of Hours, Section 17. The Respondent submitted that the complainant worked a set roster and hours were notified in advance. The Complainant held a veto over the offer of relief hours if she wished. CA -00019379-010 Notification of Hours and additional Hours, Section 17 The Respondent submitted that the complainant worked a set roster and hours were notified in advance. The Complainant held a veto over the offer of relief hours if she wished. CA-00019379-011 Night Hours, Section 16(2) The Respondent disputed that the complainant had worked more than the maximum hours permitted by legislation and submitted records of nights worked of 539 hours of waking nights over 2016/2017. There were corresponding records of sleepover nights. CA-00019379-012 ERO The Respondent submitted that the complainant was not employed under an ERO. CA-00019379-013 The Respondent submitted that the submitted Appendices demonstrated that the complainant had received a written statement of her term and conditions of employment which were signed and accepted. CA -00019379-014 The Respondent disputed the claim. The Respondent submitted a signed addendum to the above Terms of Conditions signed an accepted by the Complainant. This demonstrated that any amendments to Terms and conditions were outlined in writing to the complainant and were accepted CA-00019379-015 Claim for Constructive Dismissal, Unfair Dismissals Act 1977-2015 The Respondent disputed that the Complainant had left her employment on an involuntary basis. She had not raised any grievances outside a brief reference to an interpersonal conflict in July 2017, which did not materialise into a formal complaint. The Respondent was sorry to lose the complainant from employment and was keen for her to return to work. CA-00019379-016 Industrial Relations Act Dispute The Employer disputed the presence of an Industrial Relations Dispute. They pointed to the complainant’s acceptance of all company policies and staff handbook on her commencement of employment. The Complainant had not made a formal complaint of bullying. CA-00019379-017 Withdrawn at Hearing CA-00019379-018 Section 27 of the Safety Health and Welfare at Work Act, 2005 The Respondent contended that the complainant had not submitted a grievance in relation to any issues regarding bullying, harassment, poor conduct or treatment. The Complainant had not made a formal complaint on health and safety grounds. The Respondent denies penalisation. The Respondent gave details of a Web site/ IT Programme in logging incidents and no incidents of single hoist operation were raised. |
Findings and Conclusions:
I have considered the claims raised here. I have received oral and written submissions from both parties and I have considered all. As stated, throughout the hearing, it was clear to me that the complainant was well regarded for her care giving skills at the Respondent service. They were sorry to lose her. I asked the parties if they would wish to take a short period of time to explore whether they wished to have further discussions. They both agreed to take a four-week period to engage and revert to me at that point. The parties were unable to reach a consensus on an agreed way forward and I have been asked to issue a decision in the case which I am now about to do. The Complainant in the case is a Lay Litigant and made it known that she had difficulties in completing her complaint form before the WRC as a result. This accounts for a slightly truncated approach to the submission of the complaints. I have endeavoured to capture the full extent of the 18 complaints and have delineated those which were withdrawn at hearing. I explained to the parties that my jurisdiction in this case was bound by Statutory time limits and I spent some time addressing the parties on the parameters of these time limits. I explained that Section 41(6) of the Workplace Relations Act, 2015 provides that an Adjudicator shall not entertain a complaint referred to WRC after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates I am not certain that the enormity of this was fully appreciated by the complainant. The Respondent understood. This case has evolved from an initially successful employment which seems to have deteriorated over time. I was immediately struck by the high needs nature of the care given at the service, this was not disputed by the Respondent. This is a service facing challenges in staff recruitment and retention and the complainant is missed. The fact that she still volunteers with Service User A was of interest to me. I would have expected that this fact alone may have prompted an earlier engagement in advance of the hearing. It had not. The Complainant is not presently working, she explained at the hearing, that she was hopeful of getting work but had not managed to secure any due to her understanding of her limitations set by her remote geographical location. CA -00019379-004 Employment Regulation Order The Complainant has confirmed that she was mistaken in submitting this claim. She accepts that her employment was not covered by an Employment Regulation Order. I find the complaint is not well founded. CA -00019379-005 Weekly Rest Breaks I have considered the statutory time limit associate with this claim. The claim was received by the WRC on 22 May 2018. The cognisable period for the claim is therefore 23 November 2017 to 22 May 2018. The Complainant has confirmed that she left employment on 4 December 2017. Section 11 of the Act entitles an employee to a rest period of not less than 11 consecutive hours in each period of 24 hrs. The Complainant has not identified the of the alleged breach of Section 11. I have noted that December 2017 time sheet is not available in the Respondent booklet. November 17, 2017 is the last recorded shift, where the complainant worked a 2-hour slot. I cannot establish that a breach of Section 11 has occurred in the cognisable period. The claim is not well founded CA -00019379-006 Daily Rest breaks Section 12 of the Act requires the provision of statutory rest breaks. The Complainant submitted that she was not in receipt of these breaks for the duration of her employment and she sought compensation. The Respondent submitted that recorded hours were nett of meal and rest breaks and the complainant may have had trouble in securing breaks in real times, but she had the back of compensatory rest breaks. In my consideration of this claim I reviewed the respondent records submitted. I noted that the complainant has not particularised this claim. I am bound by the parameters of the Cognisable period of 23 November 2017 to 22 May 2018. I have not established a breach of Section 12 of the Act within that time frame. The claim is not well founded. CA -00019379-007 Section 15 Maximum Hours I have carefully considered this claim. I find that the complainant was certainly faced with a challenging work schedule on occasion during her employment. However, I can only confine my findings to the parameters of Section 15(1) of the Act. I have not established that the complainant was compelled to work an average more than a 48-hr week over a 12-month period during her employment. I find the claim Is not well founded. CA-00019379-008 Section 21 Public Holidays I have considered the claim as lodged by the complainant. I am bound by the parameters of the cognisable period. I note that the last pay slip submitted by the Respondent refers to December 22, 2017. This lists a Salary payment of €568.82 and €420.07 Sleep over payment. I have not established a strict breach of Section 21 of the Act within the cognisable period. I have found that the complainant ought to have benefitted from Section 23(2) on cessation of employment and is owed two days pay in compensation. The claim is part well founded. CA-00019379-009 Notification of Working Hours, Section 17 of the Act. I have considered this claim. Section 10 of the Complainants Contract of Indefinite Duration (2016) describes a variable hour of work and starting times to be notified by the Manager with changes flagged by 1 weeks’ notice in letter or email. The Complainant did not particularise the alleged breach in the Act. I appreciate that it may have been challenging to juggle both roles at the Respondent service, but I have not established a breach of the Act within the cognisable period. The Complaint is not well founded. CA -00019379-010 Section 17, notification of hours and additional hours I have considered both parties presentations on the claim. I have not established a breach of Section 17 during the cognisable period. The claim I s not well founded. CA-00019379-011 Section 16(2) Night Work The Complainant has not particularised this claim. I cannot establish a breach of Section 16(2) of the Act within the cognisable period. CA-00019379-012 ERO The Complainant accepts that her employment was not subject to an ERO. The Claim Is not well founded. CA-00019379-013 Written Statement of Terms of Employment. I have reviewed the Contract submitted by the Respondent dated 18 October 2013. I accept that this was issued in line with the 2-month imperative. However, this document is silent on overtime which is in continuous contravention of Section 3(1) (I) of the Act. I have upheld this complaint. CA -00019379-014 Changes to Particulars in the Statement. I have considered both party’s presentations. I have not established a breach of Section 5 of the Act. I note the changes agreed by the complainant in November 2016. CA-00019379-015 Claim for Constructive Dismissal The Complainant has submitted that she believed that she had no choice outside leaving her employment on an involuntary basis on 4 December 2017. She believed that she was driven out of a hostile and unsupported work environment where her relationship with Mr A had deconstructed and her terms and conditions of employment were not respected. She was troubled by inconsistent practices and criticisms of her. The Last straw arose from being deemed unsuccessful for a job she was doing anyway, albeit on an alternative work pattern. The Complainant had been offered a position as a Saturday Assistant with the Respondent in December 2017 but refrained from acceptance on pay. I have reviewed the complainant exit interview dated November 20 November 2017 which is consistent with the complainant’s analysis of her work. She stated that she wished to work in a different aspect of the service but had been omitted from this and her needs as a Support worker had not been met. She sought more personal development and a better structure in her job. It is clear to me that the complainant was unhappy at work, she believed that her contribution and commitment was not recognised or rewarded. She could not see past the rejection for the revised work pattern in a different setting with Service User A. She was not reassured by the feedback offered to her. The Respondent disputed the claim and offered to have the complainant return to work in a more supportive setting. The Complainant did not accept this proposal at hearing or subsequently. The Complainant is faced by a high burden of proof in this case. Constructive Dismissal is defined in Section 1 of the Unfair Dismissals Act 1977-2015. The termination by the employee of her contract of employment with her employer whether prior notice of the termination was or was not given to the employer in circumstances in which, because of the conduct of the employer , the employee was or would have been entitled or it would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer Lord Denning MR outlined the Contract Test for Constructive Dismissal in Western Excavating (ECC) Ltd V Sharp [1978] ICR 221 If the Employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance The Corresponding Test for reasonableness of action to terminate employment is reflected in Barry -Relph V HSE [2016] ELR 268. This is an EAT case which considered the claim for Constructive Dismissal in a Healthcare setting and in finding against the complainant held that: · (1) The reasonableness of the conduct of both the employer and the employee are material when looking at a decision of an employee to resign his/her employment. · (2) The reasonableness of the claimant's decision to resign must be viewed considering the conduct of the employer and whether the claimant had raised a grievance with management and given the respondent an opportunity to respond prior to submitting her resignation from employment. · (3) The employee was unreasonable in failing to raise a formal grievance but wishing the respondent to back her up. · (4) The employee must exhaust all the avenues open to him/her before tendering his/her resignation. The employee did not give the respondent the opportunity to deal with her complaints prior to her resignation. I accept that the complainant was clearly struggling in her role. She was troubled by the interface between her core role of Support Worker and Relief Worker and by her own admission, by this often-chaotic and ad-hoc hybrid work situation. I requested the Company Policy on Recruitment as it did seem unusual to me that you would have to interview for an altered work pattern through an external advertisement. The Policy I received was dated December 2018 and so of no benefit to the facts of this case. I note that the complainant recorded her acceptance of a staff handbook early in her employment. She disputed this at the hearing. I cannot establish that the complainant had satisfied the contract test in this case. I accept that breaks were erratic but were provided for in the co-signed time sheets. I have not, base on the evidence adduced, identified a repudiatory breach of the complainant’s contract by the Respondent. I accept that the complainant was largely disenchanted with the service. She no longer wished to work in an area and saw her opportunity to relocate through securing the 25 September interview. She was devastated when her plan was not realised and emotionally withdrew from the service at that point. She did not have a Plan B. It is of note that the complainant correctly sought feedback on the interview, but she placed no weight on this as it did nothing to ameliorate her personal humiliation and sense of rejection. It is equally relevant that the Complainants core job with Service User A was not affected by the new appointments and she refused to train the new staff. She showed a certain assertive approach here, which sadly did not assist in resolving the overall unease she experienced. In Barry Ralph, the complainant demonstrated a certain focus on how matters should be resolved and rejected offers of intervention by her employer. I found some analogies in that case and this. The Complainant clearly had high standards, where she prioritised her care to her clients, she did not, however replicate this in prioritising self-care in a high care needs environment. In this, I find that she acted to her detriment in this regard. In Des Ryan’s, Redmond on Dismissal Law, he comments that both parties in an employment situation owe a duty to conduct themselves in a way which will enable the contract to be performed. I would add that a vital vehicle on this journey is open two-way conversation. It was unclear to me just who filled the role of line Manager as Mr A seemed to become the focus of all ills experience by the Complainant. The Complainant carried and still carries a heightened sense of injustice at how she believes that she was treated at the Respondent service. However, she has not shared any details of how she sought to resolve this conflict or unrealised goals at work. The Complainant is a mature person with clear life experience which benefitted the service and clients in her care. In all the circumstances, while I have a pronounced degree of empathy with the Complainants hurt at the outcome of the interview, and I accept that she left to preserve her dignity, I must find that she has left no procedural footprints of attempted resolution for her dissatisfaction or disenchantment with her job. The Law requires some effort in this regard. On the other hand, the Respondent has recorded defined supportive measures in the complainant’s case particularly post interview. The Complainant requested help and it was provided. I find that the Complainant has not reached the Burden of Proof in this case. She has not proved that she was constructively dismissed on either of the established tests. It is of note that the Complainant considered work offered by the Respondent following an interview held on November 30, while she was still employed. This position was offered on 20 December and rejected on salary grounds alone. It is clear to me that the complainant continues to identify with the Respondent ethos. I accept that she was overwhelmed by experiences which were mostly kept to herself. I would like to have seen the complainant using the grievance procedure to support her claim for relocation. I am disappointed by its omission in the case. I find that the claim for Constructive Dismissal is not well founded. Barry Relph applied. CA-00019379-016 Industrial Relations Dispute I have listened carefully to both parties in relation to this claim which I have found to be an incorporation of most of the other claims. I must conclude that the complainant did not activate a formal complaint of bullying during her work. The Claimant has left the employment and remains sad and angry about her treatment there. The sole recommendation open to me here is for all parties to reflect on what has happened in this previously successful employment relationship. I realise that the parties were offered an opportunity to engage previously. I understand the communication occurred electronically only. That medium is insufficient to address personal hurt and disappointment for either party. If the claimant expresses an interest in returning to her position with Service User A, I recommend that the Complainant is hosted by the Service CEO and Human Resource Dept in a facilitated exchange of views. If both parties agree a return as mutually acceptable, this should occur within 4 weeks of this Agreement. I would strongly recommend that the claimant consider a period of coaching and mentoring in her role and this should be funded and facilitated by the Service. I think it is important that the claimant give some time to understanding the Respondents viewpoint in addition to her own. I make no award of compensation in this regard. CA-00019379-017 Withdrawn at Hearing CA-00019379-018 Section 27 Penalisation, Safety Health and Welfare at Work Act, 2005 I have considered both parties oral and written presentations on this claim. The Complainant is clear that she believes that she was penalised when she raised service shortcomings. She submitted that the Company Nurse had state that the Hoist should always be operated by two staff. She believes that she was compelled to operate it alone. The Respondent disputed this and submitted that no concerns had been raise in this regard within the service. Section 27 provides that: — (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. (2) Without prejudice to the generality of subsection (1), penalisation includes— (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation. (3) An employer shall not penalise or threaten penalisation against an employee for— (a) acting in compliance with the relevant statutory provisions, (b) performing any duty or exercising any right under the relevant statutory provisions, (c) making a complaint or representation to his or her safety representative or employer or the Authority, about any matter relating to safety, health or welfare at work, (d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions, ( e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or ( f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger. A Complaint of Penalisation is a very serious matter and it requires in-depth probing to assess the nature of the issue raised within the cognisable period of 6 months. In the first instance, the complainant must demonstrate that she raised a complaint in accordance with the terms of Section 27. In the instant case, I noted that the Complainant undertook Manual Handling Training in December 2015. She was clear in her evidence that she had never undertaken this training. I reviewed a Certificate of attendance which reflected this, which I found to be authentic. I cannot uphold her complaint of penalisation. Finally, the complainant referred to issues pertaining to her contracts of employment. She accepted that she held a Contract of Indefinite Duration as a Support Worker and a Specified Purpose Contract as a Relief Worker. She resigned from both contracts in December 2017. |
Decision and Recommendation:
Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA -00019379-004 Section 45A Of the Industrial Relations Act,1946 (ERO)
The Claim is not well founded.
CA -00019379-005 Section 11 Rest Periods
Section 27 of the Organisation of Working Time Act, 1997 requires that I decide in accordance with the provisions of the Act.
I have not established a breach of Section 11 of the Act. The claim is not well founded.
CA -00019379-006 Section 12 Rest Breaks
I have not established a breach of Section 12 of the Act. The claim is not well founded.
CA -00019379-007 Section 15(1) Maximum Hours
I have not established a breach of Section 15(1) of the Act. The claim is not well founded.
CA -00019379-008 Section 21 Public Holidays
I have upheld this complaint in part and order the Respondent to pay the complainant two days pay in compensation for the breach of Section 23(2) of the Act.
CA -00019379-009,010 Notification of Hours and additional hours, Section 17
I have not established a breach of Section 17 of the Act. These claims are not well founded.
CA -00019379011 Night Hours,
I have not established a breach of Section 16(2) of the Act. These claims are not well founded.
CA -00019379-012 ERO
Section 45A of the Industrial Relations Act, 1946 requires that I make a recommendation in relation to the dispute in accordance with the relevant redress provisions under the Act.
The Complainant accepts that her employment was not subject to an ERO. The claim Is not well founded.
CA -00019379-013 Written Statement of Terms of Employment
Section 7 of the Terms of Employment (Information) Act 1994 requires that I decide in accordance with Section 3 and 5 of the Act.
I have found this claim to be well founded. I order the Respondent to pay one weeks pay to the complainant as compensation for the continuous breach of Section 3 (1) (I) of the Act.
CA -00019379-014 Changes to Terms and Conditions
I have not upheld this claim.
CA -00019379-015 Constructive Dismissal
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have found the claim for Constructive Dismissal to be unfounded.
CA-00019379-016 Industrial Relations
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have found some merit in this Dispute.
If the claimant expresses an interest in returning to her position with Service User A, I recommend that the Complainant is hosted by the Service CEO and Human Resource Dept in a facilitated exchange of views. If both parties agree a return as mutually acceptable, this should occur within 4 weeks of this Agreement.
I would strongly recommend that the claimant consider a period of coaching and mentoring in her role and this should be funded and facilitated by the Service. I think it is important that the claimant give some time to understanding the Respondents viewpoint in addition to her own.
I make no award of compensation in this regard.
CA-00019379-018 Section 27 Penalisation, Safety Health and Welfare at Work Act, 20005.
Section 28 of the Safety Health and Welfare at Work Act. 2005 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I have found this complaint to be not well founded.
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Dated: 12.6.19
Workplace Relations Commission Adjudication Officer:
Key Words:
Rest breaks, public holiday, written terms of employment, constructive dismissal, Industrial relations, penalisation, maximum hours of work. |