Complainant

Respondent

Anonymised Parties

An Operations Manager

A Technical Services Company

Representatives

Ms Shonagh Byrne, SIPTU

Mr David Boughton BL

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-00022154-002

25/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00022154-003

25/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00022154-004

25/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00022154-005

25/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00022154-006

25/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00022154-007

25/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00022459-001

07/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00022460-001

07/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00022460-002

07/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00022460-003

07/10/2018

The respondent company operates in Dublin Port and is engaged in surveying and inspection of ships delivering petroleum products to Ireland. It also has contracts for surveying of ships carrying agricultural products and minerals and for the pre-shipment inspection of goods for export.

The complainant joined the company in 2002 as a petroleum cargo surveyor and after an absence to do military service in his native Croatia in 2003, he resumed employment in 2004. He was appointed as operations manager in February 2006 and he is on an annual salary of €63,000.

In all, 13 complaints were submitted to the WRC by the complainant under three adjudication reference numbers, ADJ-00017082 (25th September 2018), ADJ-00017625 (7th and 21st October 2018) and ADJ-00018092 (18th November 2018). At the hearing, it was evident that the subject matter of the complaints is not entirely the same as what was submitted on the e-complaint forms. At the opening of the hearing, Ms Byrne confirmed that the following complaints are withdrawn:

CA-00022154-003

CA-00022154-004

CA-00022154-005

CA-00022154-007

CA-00022460-001

CA-00022732-002

Following the hearing, I established that two complaints, CA-23319-001 and CA-23320-001, both submitted under the Industrial Relations Act 1969, were closed by the pre-registration unit at the WRC, because they were considered as duplicates of the complaints submitted under CA-22154-007 and CA-22460-002. I will consider the subject matter of these complaints as they were presented by Ms Byrne of SIPTU, under complaint number CA-22460-002.

The complainant is seeking records of his hours of work, rest periods, annual leave and public holidays for 2018.

For the respondent, Mr Boughton said that this information is available and will be provided to the complainant.

It is my view that this is not a complaint, and that the information could have been provided to the complainant without recourse to the WRC. If the information has not been provided to him by the time this decision is issued, then, within one week of the issuing of this decision, the complainant should be given the information he requested in respect of his hours of work, rest periods, annual leave and public holidays for 2018.

I have decided that, as this matter is about a simple request for information, which has not yet been refused, the complaint is not upheld.

The complainant is seeking a statement of the terms and conditions of employment that apply to his job as operations manager in the respondent’s company. In his submission, the complainant included a copy of a contract of employment from the start of his job with the respondent on January 1st 2002.  

In their submission at the hearing, the respondent produced a copy of the complainant’s terms and conditions in respect of his role as operations manager commencing in February 2006. While some aspects of the complainant’s role have changed, the respondent’s position is that there is no requirement to continuously update statements of terms and conditions. On March 6th 2018, the respondent’s general manager had a discussion with the complainant about the components of his job. The complainant said that the role is not feasible on the basis of the responsibilities set out in the note of this meeting.

Section 5(1) of the Terms of Employment (Information) Act 1997 provides that, where there are changes to an employee’s terms and conditions of employment, within one month of the change taking effect, they are entitled to be notified in writing of the nature and date of the change.

In the case under consideration here, the complainant’s terms and conditions have not changed significantly, apart from his salary, which was increased in 2018 from €58,900 to €63,000. Around this time, the respondent won a significant contract, with the result that the complainant’s responsibilities have changed. From my understanding of what transpired at the hearing, it appears that the complainant is seeking a statement which clearly sets out the responsibilities of his role and the hours for which he is required to be available to his employer outside the standard working hours. It is my view that this is in accordance with the requirements of an employer set out at section 5(1) of the Terms of Employment (Information) Act 1997.

I have decided that this complaint is upheld and the respondent is to provide the complainant with an updated statement of his terms and conditions of employment which also sets out the components of his job and the hours that he is required to be available outside Monday to Friday from 9.00am to 5.00pm.

This is a complaint of discrimination on the ground of race. The complainant is Croatian and he contends that he is being treated less favourably compared to his Irish colleagues in respect of the allocation of work. He also claims that he is discriminated against in the way he is required to seek approval for the time at which he can take annual leave. He claims that he must request his annual leave from an Irish colleague, but his colleague does not have to seek approval from him, despite his status as the operations manager. He claims that he requested annual leave at Christmas and new year 2018 / 2019 but that his request was denied, while the same request from an Irish colleague was approved.

The respondent’s position is that the complainant is the most senior employee in the company which has 44 employees. He is next in line to the founder and general manager with whom he shares a significant degree of responsibility. On this basis, his workload is different from all the other employees in the company.

Since he became operations manager in 2006, it has been a practice that the complainant and the general manager do not take holidays at the same time. At the hearing, the general manager said that he is the person who approves holidays, and not the employee named by the complainant.   This person is the administrator who keeps a record of holidays. The complainant is required to seek approval from the general manager before he takes annual leave.

In his claim of discrimination on the ground of race, the respondent argued that the complainant has not stated who his comparator is who is treated more favourably than he is treated. On this basis, he cannot substantiate a claim of discrimination.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section in the law is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, he has been treated less favourably than someone who is not from Croatia.

The Primary Facts

The complainant is the company’s operations manager and he claims that, with the exception of a colleague from India, he has a heavier workload than Irish employees. He also claims that, unlike the Irish employees, he cannot take his holidays at his preferred time. As the most senior employee in the company, this is not an unusual or even unreasonable circumstance. Many managers have heavier workloads and more responsibility than less senior people and this does not lead to an inference of discrimination.

At the hearing, the general manager said that there must be an arrangement whereby he and the complainant are not on holiday at the same time and he must approve the complainant’s leave requests. At Christmas 2018, the complainant booked his holidays on the annual leave schedule without any discussion with the general manager. It is apparent that employees who do not have managerial responsibilities have more leeway with regard to the timing of annual leave but this flexibility is not available to the general manager or the operations manager.

The issue of a heavy workload is a feature of the role that the complainant occupies in the company and, in my view, has no bearing on the fact that he is from Croatia.   The same applies to the issue of the timing of annual leave. The restrictions regarding the timing of annual leave is not related to the complainant’s race but, is a feature of the responsibilities of his role and the sharing of those responsibilities with the general manager.

Conclusion

Having considered the evidence submitted at the hearing, I have concluded that the complainant has failed to establish facts which lead me to assume that he was discriminated against on the ground of race. As a result, he has failed to meet the burden of proof required to establish his claim of discrimination.

I have concluded that the complainant has not established the primary facts which show that he was discriminated against on the ground of race and I have therefore decided that this complaint is not upheld.

Under this heading, I will address each of the complainant’s grievances raised under section 13 of the Industrial Relations Act.

CA-00022154-007: Appeal of a Disciplinary Sanction

On October 1st 2018, the complainant was issued with a written warning because of an e mail he sent to a manager in one of the oil terminals in Dublin Port on July 25th 2018. In the mail, the complainant questioned the competence of a person who provided training to terminal employees. The respondent’s general manager apologised to the trainer, and the complainant also sent an e mail in which he apologised and retracted his criticisms of this person.  

The complainant’s view is that the matter was closed when he apologised, and he received the warning only as retaliation for complaining on August 30th about what he considered to be an excessive workload. He said he was not allowed to be represented at the disciplinary hearing, or at the appeal hearing, at which the written warning was reduced to a verbal warning.

CA-00022460-002: Bullying in the Workplace

The complainant said that he complained to his employer over the last three years about bullying and unfair treatment. He said that following mediation in 2016, the workload issue was resolved to some degree. However, in August 2018, the complainant was unhappy with what he believes are threatening e mails and text messages sent to him outside working hours, which he believes constitute bullying. He believes that he has been disciplined for raising complaints and that his confidence has been breached because his colleagues know that he was involved in disciplinary proceedings.

CA-00023319-001: Workplace Disputes

When he arrived at work on November 14th 2018, the complainant said that the general manager “talked loudly” to him about the fact that he could not contact him on his company mobile phone the previous evening. He said that it seems to him that he is on call 24 hours of the day.

Since he submitted his complaints to the WRC in September and October 2018, the complainant said that he is not treated as part of the management team, not included in meetings and that he is being punished for making complaints. He said that he feels as if his employer is building a case against him.

CA-00023320-001: Late Payment in September 2018 and a Missing Payslip

This is a complaint that the complainant was paid his September 2018 salary on October 1st, when the normal payday is around the 25th of each month.   He also complains that he did not receive a payslip for September 2018.

CA-00022154-007: Appeal of a Disciplinary Sanction

For the respondent, Mr Boughton said that the disciplinary process that resulted in the written warning complied with the requirements of fair procedures and was substantively fair. He referred to the case of Pacelli v Irish Distillers Limited, [2004], 15, ELR 25 in respect of the reasonableness of the employer’s response to the conduct of an employee.

Prior to the disciplinary meeting, Mr Boughton said that the complainant was offered the opportunity to be accompanied, and he did not request to be accompanied by his union representative. An independent third party heard the appeal of the written warning and recommended that it be reduced to a verbal warning.

CA-00022460-002: Bullying in the Workplace

The respondent argued that this complaint relates to “generalised grievances about working conditions.” The complainant disclosed minor dissatisfactions about his job which, in the view of the company, falls short of the “triple requirements” of the definition of bullying which determine that it must be repeated, inappropriate and undermining of workplace dignity. Mr Boughton referred to the Supreme Court case of Ruffley v the Board of Management of St Anne’s National School, [2017], IESC 33, where Mr Justice O’Donnell stated that for conduct to be bullying, it must be “outrageous, unacceptable and exceeding all bounds tolerated by decent society.” Mr Boughton proposed that this decision is also authority for the instigation of the disciplinary procedure not constituting bullying.

In respect of any allegation of bullying, the respondent’s case is that the complainant has failed to engage with the internal grievance process.  

CA-00023319-001: Workplace Disputes

The general manager of the respondent company said that the complainant is not required to be on call all the time, but, occasionally, he is required to answer his phone outside normal working hours. He has a company mobile phone for this purpose.

In April 2018, the company won back a contract with a major oil company in Dublin Port.   Because of the additional work associated with this contract, new employees were recruited, and it is the respondent’s case that the complainant now has less resposibilities than previously, as there is more cover for evenings and weekends. As the most senior staff member and number two to the general manager, they claim that it is not unreasonable to expect the complainant to be available outside of working hours to answer questions or give guidance to staff on work matters.

CA-00023320-001: Late Payment in September 2018 and a Missing Payslip

At the hearing, the general manager said that he looks after payroll himself and in September, he forgot to do the salaries, with the result that wages were paid late that month. He thought that he sent out payslips, and he said that he would send a payslip for September to the complainant.

CA-00022154-007: Appeal of a Disciplinary Sanction

Having considered this matter, I find that a verbal warning was a more appropriate sanction than a written warning in respect of the conduct under consideration. As it was issued on October 1st 2018, this warning will expire on March 31st 2019 and it is my view that the matter is then concluded.

CA-00022460-002: Bullying in the Workplace

The Health and Safety Authority’s (HSA) Code of Practice on the Prevention and Resolution of Bullying at Work sets out a definition of bullying:

“Bullying at work has been defined as ‘repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work.’”

An allegation of bullying is a serious matter, and one that, in my view must not be made lightly.   Bullying in the workplace can have a catastrophic impact on victims and on the culture in a workplace.   However, it is important, before a complaint is submitted under the heading of bullying, to consider if the standard of unacceptable behaviour set out in the definition has been met.  

A poor relationship with one’s boss is not bullying and harassment; neither is the instigation of a disciplinary sanction.   The complainant has the assistance of his union representative to process any grievance and it is my view that his union must be his first port of call to resolve what he perceives to be bullying at work.

CA-00023319-001: Workplace Disputes

At the hearing, it was evident that relations between the complainant and his employer are combative.   The source of the disagreements is difficult to identify, and the path to a resolution is not clear. It seems to me that little effort has been made by the complainant to resolve his problems in his job within the confines of his place of work and directly with his boss. He has the assistance of his union official to help him in this regard and the general manager has also offered the assistance of an independent mediator. The problems require some investment of time and ingenuity by both sides before resorting to the WRC.

CA-00023320-001: Late Payment in September 2018 and a Missing Payslip

This complaint relates to the late payment of wages and should have been resolved in the workplace.

CA-00022154-007: Appeal of a Disciplinary Sanction

I make no recommendation in respect of the written warning that expires on March 31st 2019.

CA-00022460-002: Bullying in the Workplace

I recommend that the company engage with the complainant’s union representative, in accordance with the grievance procedure, to seek to resolve the issues that he is concerned about related to workload and the requirement to be available outside of normal working hours.

CA-00023319-001: Workplace Disputes

I recommend that, with the support of his union representative, the complainant uses the company’s internal grievance procedures to resolve his difficulties with his employer. If they fail to achieve a resolution, the issues can be referred back to the WRC.

CA-00023320-001: Late Payment in September 2018 and a Missing Payslip

This is a complaint which can be easily resolved in discussions between the complainant and the general manager. I make no recommendation on this matter.

The complainant requested parental leave over the Christmas and new year 2018 / 2019 but this was refused. He then put this period down as annual leave on the holiday planner, but the general manager removed his leave from the schedule.

The complainant requested six weeks’ parental leave around June 2019 and this was also refused, although the general manager said that the complainant could take four months’ parental leave from April to July 2019.

For the respondent, Mr Boughton said that it was not possible to approve the complainant’s parental leave (or annual leave) at Christmas and new year because the general manager also intended to be on leave at that time. In respect of the complainant’s request to be off work on parental leave for six weeks, the respondent said that another person would have to be trained up to do the complainant’s job. It would therefore be more convenient for the complainant to take all his parental leave in one four-month block, rather than over a shorter period of time.

I have considered this complaint of penalisation. The complainant did not take parental leave in 2019 and therefore he cannot have been penalised for asking for approval to take parental leave. I understand that a disciplinary investigation is under way at present because the complainant was absent over Christmas 2018.   This disciplinary action is not a response to the fact that he asked to take parental leave.

From the respondent’s perspective, there must be some operational risk in the fact that the complainant appears to singularly share responsibility for the running of the company with the general manager. It seems to me that some consideration needs to be given to allocating key tasks to more employees and to building a team of people that are competent to carry out day to day critical jobs.

If the respondent is open to the complainant being on parental leave for four months, then it should not be impossible to permit him to be on parental leave for a shorter period. This will require his cooperation to train another person or persons in the jobs he does so that the business can operate normally in his absence.

I have found that the complainant was not penalised for exercising his rights under the Parental Leave Act 1998 and I have decided that his complaint in this respect is not upheld.

Workplace disputes, use of grievance procedure