ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Carpet Weaver | A Textiles Company |
Representatives | In person | |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00023144-001 | ||
CA-00023144-002 | ||
CA-00023144-003 | ||
CA-00023144-005 | ||
CA-00023144-006 | ||
CA-00023144-007 | ||
CA-00023144-008 | ||
CA-00023144-010 | ||
CA-00023164-002 | ||
CA-00023164-004 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant commenced work with the Respondent in April 2016. He brought a number of employment rights issues to the attention of the Respondent. This gave rise to the trade union becoming involved. While changes were being negotiated in terms of employment practices within the Respondent’s workforce, the Complainant issued a number of complaints to the WRC. This occurred on 9 November 2018. As part of the complaints an inspection by the WRC occurred and a number of changes to work practices were required by the WRC inspectorate, which were then put into place. The Complainant contends that due to his bringing employment breaches to light, he was penalised. |
Summary of Complainant’s Case:
CA-00023144-002. The Complainant on behalf of his 65 other workers did not receive a copy of the terms and conditions of their employment in writing, in breach of the 1994 Act. As this was a duplicate of the complaint CA-00023144-001, the Complainant withdrew it at the Adjudication hearing CA-00023144-003. The Complainant did not receive adequate rest periods during the overnight shift in breach of the Organisation of Working Time Act 1997 CA-00023144-005. Having complained in writing (29.5.18) to the Respondent about their failure to pay annual leave adequately to staff, he was penalised by being disciplined (on 17.7.18) for a trumped up charge of underperformance, for which he received a written warning. His work had not received any criticism prior to making the complaint. CA-00023144-006. Having complained to the Respondent about their failure to pay annual leave adequately to staff, he was penalised by having his hours reduced on 13.7.18. It was no coincidence that this occurred at the same time as he was being penalised ostensibly for underperformance on 17.7.18. The actions on the part of the Respondent were trumped up and were leverage to prevent him from bringing forward employment breaches that the Respondent was committing CA-00023144-007. The Complainant appeared for work on 21.9.18 for his usual night shift. However his two co-workers were on annual leave and the Respondent had not recorded that fact. As a result the Complainant was sent home as he was not allowed work the machines by himself. He did not work that shift, through no fault of his own however his pay was still deducted for those ten hours. CA-00023144-008. The Complainant was disciplined on 20.7.18 for being a shop steward and for raising employment rights breaches. This was in breach of section 13 (1) Employees Provision of Information and Consultation Act 2006 CA-00023144-0010. The Complainant was penalised by ten hours being deducted from his wages on 21.9.18 even though he appeared for work on that occasion. This was done because he had raised concerns as an elected SIPTU representative with the Respondent. CA-00023164-002. The Complainant did not receive a Sunday premium payment CA-00023164-004. The Complainant’s holiday pay was at a reduced rate to hourly rate of pay for a normal working week
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Summary of Respondent’s Case:
CA-00023144-001. It is accepted that on the date that the complaint was brought on 9 .11.18, the Respondent had not implemented the changes that were part of ongoing negotiations between Respondent and the trade union in relation to formalising contracts. the Complainant knew that these discussions were ongoing and this complaint mid negotiation is an opportunistic complaint. While it is accepted that there is a breach under the 1994 Act, the Respondent seeks that no compensation award be made in relation to this complaint CA-00023144-002. This complaint was withdrawn at the hearing CA-00023144-003. It is accepted that the rest periods as set out in the Organisation of Working Time Act 1997 were not complied with however following a WRC inspection the necessary changes have all been put in place and the Respondent seeks that no compensation award be made in relation to this complaint. CA-00023144-005. This complaint is misconceived in that the alleged wrongdoing fall into the definition of matters arising under the worker’s contract of employment and therefore under section 5 (3) are excluded from being considered CA-00023144-006. This complaint is misconceived in that the alleged wrongdoing fall into the definition of matters arising under the worker’s contract of employment and therefore under section 5 (3) are excluded from being considered CA-00023144-007 Pay is based on work done. The Complainant was not paid for work on 21.9.18 because he did not work the shift. This is not a deduction from pay under the meaning of the Payment of Wages Act 1991 CA-00023144-008. This complaint is misconceived in that he was not an employee representative under the 2006 Act CA-00023144-0010. This complaint is misconceived in that he was not an employee representative under the 2006 Act CA-00023164-002. This complaint is denied CA-00023164-004. This complaint is denied
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Application by Complainant to discount Respondent’s supplemental submissions This hearing took place on 6 March 2019. On that occasion, the Respondent handed in submissions to the Adjudication Officer on the morning which had not been filed in advance on either the Complainant or the WRC. The Complainant was not legally represented. The Complainant objected to the late filing of the hard copy submissions but agreed to proceed in any event. Before the hearing proceeded, the Respondent representative agreed to scan/email to the WRC a copy of the hard copy submissions that had been handed in. At the conclusion of the hearing, as the Respondent’s submissions raised matters of law, the Adjudication Officer gave time to the Complainant to file legal submissions to the WRC within a limited time frame (3 weeks). The Respondents were given a consequential limited time period (2 weeks) to file supplemental replying submissions (i.e. supplemental to their original submissions.) The Complainant sent his submissions within the agreed time frame, the Respondents did not file within the time agreed. Due to the late filing of the Respondent’s supplemental submissions the Complainant emailed a request to the WRC that the Adjudicator discount the Respondent’s supplemental submissions. I am declining the Complainant’s request to disregard the Respondents additional submissions. My reason for this is that such a ruling would be ultra vires to my statutory obligation to inquire into this matter, where I have an obligation to acquire as much relevant information as possible in order to, fairly inquire into and determine the matter. However, the lateness of the filing when a time frame has been agreed, is unsatisfactory. It leads to delayed decision making and undermines the adjudication process. What is also unsatisfactory is the fact that the Respondent’s original submissions were never filed with the WRC even though an undertaking to so do was given by the Respondent’s representative at the hearing. Documents and submissions that are being relied upon by a party must be served on the WRC in advance of an Adjudication Hearing. A last-minute ambush of documentation, especially where the author of the ambush is professionally represented, and the ambushed party is not, is poor practice. Please note for the future, if documentation is not sent via the WRC, it does not exist for the purposes of the Adjudication hearing until it is furnished and if it is furnished for the first time at the hearing, the other party is prejudiced, the Adjudicator is discommoded and time is wasted because an adjournment often becomes necessary.
Substantive Decision CA-00023144-001. As this complaint is conceded by the Respondent I find that it is well founded in that at the time the complaint was lodged on 9. 11.18, there was a breach in that the Complainant did not have a copy of his terms and conditions of employment in writing. The fact that this matter was resolved for all 65 members of staff subsequent to the complaint being brought is a welcome development but this rectification was in all likelihood hastened by the fact that the complaint and the request for an inspection was brought. In this respect the Complainant served not only himself in bringing the complaint to the fore but also his 65 co-workers and ultimately the Respondent themselves. Employees who highlight employment breaches are not the enemy of production. They should be regarded by management as a shield whereby by identifying short-comings other complaints and civil actions being pursued, are prevented. Criticising the messenger who identifies employment breaches is not a good or appropriate management response. I award the Complainant compensation in the amount of 2 weeks gross pay. Award: €954.00 CA-00023144-002. This complaint was withdrawn by the Complainant at the hearing. CA-00023144-003. This complaint was conceded by the Respondent. The failure by the Respondent to observe statutory rest periods is a serious matter. This was night work involving use of machinery. Rest periods especially for night shifts are crucially important to prevent accidents and injury. The fact that this matter was only resolved due to a WRC inspection which was requested by the Complainant, alone justifies him bringing this complaint. Inadequate rest periods for night shift workers was something that was allowed go on since 2012 and I am surprised that the trade union had not sought changes long before this complaint was brought. In bringing this complaint the Complainant has served his co-workers well. Their health and safety is now better protected as a result of this complaint being brought. I find this complaint to be well founded. I accept that rest periods have now been put in place which comply with the 1997 Act and I award the Complainant compensation in the sum of €3000.00. Award: €3000.00. CA-00023144-005. I do not accept that section 5 (3) of the Protected Disclosures Act 2014 prevents this complaint being brought. The complaint by the Complainant (that the Respondent was not properly paying their workforce the proper holiday entitlements) did not relate to a matter arising under the Complainant’s contract of employment. His disclosure was in a representative capacity for the workforce that in his view were not receiving their correct entitlements. It was not confined to his own holiday rights. Use of the words “the worker” in section 5 (3) must be read in its ordinary meaning, that is the worker who is making the disclosure. This section protects an employer from protected disclosures arising from an individual employee who is in a dispute with their employer over their contract. However, it does not protect an employer where one employee speaks on behalf of the workforce and complains about a breach of a legal obligation which effects all of them. However I do not accept that it has been demonstrated by the Complainant that the warning letter that was issued to him occurred as a result of the disclosure. The warning letter (relating to underperformance in carpet weaving, was issued in late July 2018) the disclosure (about holidays) was in late May 2018. I do not find that it has been proven on the balance of probabilities that the warning letter was given to him as a result of the disclosure. For this reason, I do not find that this complaint to be well founded. CA-00023144-006. I do not have sufficient evidence to justify a finding that the reason that the Complainant and two co-workers lost two hours from their shift on 13 July 2018 was due to the Complainant’s disclosure on 29 May 2018. While the Complainant has linked the two matters, as two other co-workers were affected by the shift change, it is more likely that this occurred due to operational requirements rather than an act of penalisation. For this reason, I do not find that this complaint is well founded. CA-00023144-007. The Payment of wages Act 1991 protects unlawful deductions being made from wages. “Wages” in the 1991 Act means inter alia, sums that are payable to the employee by the Employer for work. The question to be answered is whether the wages were payable to the complainant when he had not worked the shift. As there was no contract in place there was no agreement as to whether pay was payable if the shift was not done. In this case, the reason that the shift was not completed, whilst not the fault of the Complainant, it may not be inferred that in the absence of an express term in the contract, that a right to be paid when one’s shift is cancelled, arises. This would be to infer an agreement that was not in place. In terms of the Complainant’s contention (insofar as this is contended) that there was a custom and practice to pay employees when a shift was cancelled I find that there is no evidence to support this. Indeed, the Complainant’s witnesses gave evidence that even in circumstances of an electrical power cut, where their shift was cancelled, the Respondent did not pay them that shift. This supports the Respondent’s contention that wages were payable when the work was done and not before. The 1991 Payment of Wages Act does not prevent zero-hour contracts, which essentially was akin to what happened here. Section 18 of the Organisation of Working Time Act 1997 as amended by the recently enacted Employment (Miscellaneous) Provisions Act 2018 does however deal with zero-hour contracts, and it should have been under the 1997 Act that this complaint was brought. For this reason, the complaint is misconceived. I therefore do not find this complaint to be well founded. CA-00023144-008. The Complainant has not proven on the balance of probabilities that the letter issued to him in July 2018 in relation to his underperformance in carpet weaving was done so in response to his acting in a representative capacity as a SIPTU official. The onus of proof to show that the penalisation occurred due to him performing his functions as an employee representative, has not been met. I am not finding that he was not an employee representative, just that the necessary causal link between this function and the penalty has not been shown. For this reason, I do not find this complaint to be well founded. CA-00023144-0010. The Complainant has not proven on the balance of probabilities that events that are set out in the Complaint form in relation to loss of work hours was done so in response to his acting in a representative capacity as a SIPTU official. The onus of proof to show that the penalisation occurred due to him performing his functions as an employee representative, has not been met. For this reason, I do not find this complaint to be well founded. CA-00023164-002. I find this complaint to be well founded and award the Complainant €500.00 Award: €500.00 CA-00023164-004. I find this complaint to be well founded and award the Complainant €500.00 Award: €500.00
Total Award: €4954.00
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Dated: 14th May 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
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