Complainant

Respondent

Anonymised Parties

{A Manager}

{A Property Management Company}

Representatives

Gillian Considine Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00020934-001

01/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020934-002

01/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 67(5) of the Property Services (Regulation)     Act 2011

CA-00020934-003

01/08/2018

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

CA-00020934-004

01/08/2018

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

CA-00020934-005

01/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00020935-001

01/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020935-002

01/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 67(5) of the Property Services (Regulation)     Act 2011

CA-00020935-003

01/08/2018

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

CA-00020935-004

01/08/2018

The Complainant was the General Manager of the Respondent and was employed from 15th November 2017 to 18th July 2018.

CA-00020934-001

The Complainant claims pursuant to S6 of the Payment of Wages Act 1991 that the Respondent has unlawfully deducted 8,048 euro. The claim is for 1,000 euro expenses which the Complainant says was never paid. She claims all receipts were given to the company, it is uploaded on an application so she does not have a copy.

The remainder relates to overtime which is unpaid. The information in relation to this was recorded on a spreadsheet on the Complainant’s laptop but is no longer available. The Complainant says she is owed payment for 33 days as a result of late nights and Saturdays overtime worked. She raised this with her manager, who said it would be sorted out. The Complainant was not aware of the time in lieu policy until May 2018. She did not receive any training on this. She could not put in historical time.

The Complainant also claims that the Respondent agreed to pay a contribution to her pension when she commenced employment. However, she subsequently discovered there was a clause that she would not be entitled to this until she was employed for 2 years with the Respondent. This should have been notified to staff by law.

CA-00020934-002

The Complainant claims that she was unfairly dismissed due to a complaint of bullying made by her. She was dismissed before the investigation was completed, which found her innocent.

CA-00020934-003

The Complainant claims she was penalised by her employer for reporting improper conduct under the Property Services (Regulation) Act 2011.

CA-00020934-004

The Complainant complains in relation to the disciplinary sanctions received by her up to and including dismissal pursuant to S13 of the Industrial Relations Act 1969.

CA-00020934-005

The Complainant claims that she has been discriminated against her employer on the age ground. She claims that she has been dismissed because she opposed discrimination, she has been harassed and victimised. The last date of discrimination was 6th July 2018. She claims that every time she made a complaint she was harassed and bullied.

CA-00020934-001

The Respondent claims that all payments due have been paid. The Respondent operated a system whereby all overtime and expenses are vouched. All expenses and overtime claims lodged by the Claimant were paid. The Respondent says that the time in lieu policy was in place from the time the Complainant started work.

The Respondent denies that it was agreed any payment of pension should commence immediately.

CA-00020934-002

The Claimant commenced employment on 15th November 2018 and her employment ceased on 18th July 2018. This was a period of 8 months and 3 days. The Claimant does not have requisite one year’s continuous service to pursue a complaint of unfair dismissal in accordance with S8 of the Unfair Dismissals Act 1977- 2015.

CA-00020934-003

The Claimant commenced a claim pursuant to S67 (5) of the Property Services (Regulation) Act 2011. The statute provides :

“An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for-

Having formed an opinion of the kind referred to in subsection (1) and communicated it, whether in writing or otherwise, to the Authority…

Giving notice of his or her intention to do the thing referred to in paragraph (a)”

The Respondent is a stranger to any referral made by the Claimant to the PSRA, and was not given notice of the intention of the Claimant to do so.

CA-00020934-004

The Respondent declines to participate in the proceedings brought pursuant to S13 of the Industrial Relations Act 1969.

CA-00020934-005

The Claimant has brought claims pursuant to S77 of the Employment Equality Act 1998. It alleges that the Claimant was treated unlawfully in dismissing her because she opposed discrimination. S101 (4A) of the Employment Equality Acts 1998-2015 and SI 126/2016 Employment Equality Act (withdrawal of certain claims) (relevant date) regulations 2016 apply to the complaints. The Claimant must elect to pursue either unfair dismissal or discriminatory dismissal. The Claimant has failed to elect and accordingly the Claimants claim for discriminatory dismissal ought to be deemed withdrawn.

The Claimant alleges she was victimised and harassed due to her age. She has failed to nominate an actual or hypothetical comparator, accordingly the claim should be dismissed.

The Respondent denies harassment. Without prejudice to the foregoing, the Claimant relies on the defence afforded by S15(3) of the Employment Equality Act 1998, that it has a complete bullying and harassment policy in place which is given to and or available to all employees. It also has a detailed grievance procedure which the Claimant availed of. While she may be dissatisfied about the outcome of this, the grievance was managed in a manner appropriate and consistent with the grievance procedure and facts.

In relation to the Claimants claim of victimisation, the definition is set out in S74 (2) of the Employment Equality Act 1998- 2015 as follows:

“ Victimisation occurs where dismissal of other adverse treatment of an employee by his or her employer occurs as a reaction to-

a.       A complaint of discrimination made by the employee to the employer,

b.       Any proceedings by a complainant,

c.       An employee having represented or otherwise supported a complainant,

d.       The work of an employee having been compared with that of another employee for any of the purposes of this act or any enactment repealed by this act,

e.       An employee having been a witness in any proceedings under this act or the Equal Status act or any such repealed enactment,

f.        An employee having opposed by lawful means an act which is unlawful under this act or the said act of 2000 or which was unlawful under any such repealed enactment, or,

g.       An employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs

As the Claimant is not a person to whom the above categories applies she cannot succeed in her claim of victimisation.

CA-00020934-001

The Complainant claims 8,048.00 euro pursuant to S6 of the Payment of Wages Act 1991. 1,000 euro of her claim is in respect of expenses. Expenses are specifically excluded from the definition of wages under the Act, and I do not have jurisdiction to make any finding in relation to expenses.

The claim also relates to 33 days which the Complainant says is owed to her from overtime worked from late November to May 2018. The Respondent says she did not comply with their time in lieu policy.

The Complainant’s contract of employment as General Manager which she signed provides her working week is 40 hours over 5 days.

“However, you will be expected to work such hours as are necessary to ensure the fulfilment of your job function and proper performance of your duties including at weekends and beyond normal business hours, and shall be deemed to determine your own working hours for the purposes of Section 3 (1) ( c) of the Organisation of Working Time Act 1997…

“If you are required to attend evening meetings as part of your role, then you may be entitled to time off in lieu of the time spent at the meeting. Any agreement in respect of time off in lieu must be made with your Manager in advance of attending the meeting”.

The Complainant says she only became aware that time in lieu had to be signed off in advance in May. She retained a record of hour worked on a spreadsheet on a laptop which became damaged. The Respondent advised it was not possible to retrieve any information from the laptop.

The Respondent says that the Complainant did not comply with their procedures of getting overtime signed off in advance. The Respondent did not produce any record of hours worked by the Complainant. The Complainant’s payslips for July and August 2018 reflect substantial payments of time in lieu of 6,923.07.

In accordance with S25 of the Organisation of Working Time Act 1997, the employer is required to retain records of the hours worked by employees and none have been produced. In addition the Respondent has offered no evidence to rebut the claim made. I accept the Complainant’s evidence and also take into account the nature of the Complainant’s work as a property manager and evidence given regarding work obligations at the weekends and evenings. I have also considered the Labour Court ruling in Kepak Convenience Foods   v O’ Hara DWT1820 in coming to my decision.

I find the Complainant’s complaint well founded. The complaint form was received by the Workplace Relations Commission on 1st August 2018. S41 (6) of the Workplace Relations Act 2015 provides that an Adjudication Officer shall not entertain a complaint after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates. As the overtime sum sought relates to a period from late November 2017 to May 2018, I take this into account and reduce the award to 4,500 euro gross financial loss together with 1,730.76 euro compensation for breach of the Act.

The Complainant also claims that the Respondent would pay a contribution to her pension, but discovered there was a clause that she would not be entitled to this until she was employed for 2 years. There is no term providing for payment of pension contribution contained in the Complainant’s signed contract of employment, and I find this aspect of the complaint is not well founded.

CA-00020934-002

The Complainant has made a complaint of unfair dismissal against the Respondent. She was employed from 15th November 2017 to 18th July 2018 a period of approximately 8 months.

The date of dismissal of the Complainant for the purposes of the Unfair Dismissals Acts 1977-2015 must be construed in accordance with that Act.

S2 (1) of the Act provides:

Exclusions

“Except in so far as any provisions of the Act otherwise provides, this Act shall not apply in relation to any of the following persons:

(a)    An employee (other than a person referred to in Section 4 of this Act) who is dismissed, who at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him….”

The Complainant does not have the requisite service to make a claim for unfair dismissal against the Respondent and her complaint fails.

CA-00020934-003

No evidence has been adduced by the Complainant of any complaint pursuant to S63 of the Property Services (Regulation) Act 2011 against the Respondent nor penalisation arising from this. The complaint fails.

CA-00020934-004

The Respondent objects to a hearing by an Adjudication Officer.

CA-00020934-005

The Complainant alleges that she was dismissed for opposing discrimination on the age ground. She was notified by the Workplace Relations Commission that she cannot make a complaint of unfair dismissal pursuant to S8 of the Unfair Dismissals Act 1977-2015 and discriminatory dismissal pursuant to S77 of the Employment Equality Act 1998-2015 and was given the opportunity to elect between the 2 complaints. She declined to elect and pursuant to S101 (4)(a) of the Employment Equality Act 1998 her complaint of discriminatory dismissal is deemed to have been withdrawn.

Pursuant to S6 of the Employment Equality Acts 1998-2015 the Complainant in addition alleges that she has been victimised and harassed by the Respondent on the age ground pursuant to S14A of the Employment Equality Acts 1998-2015.

S14 1 (a) provides:

“Where an employee (referred to as “the victim”) is harassed… either at a place where the employee is employed (referred to as “the workplace”) or in otherwise in the course of his employment by a person who is –

(i)                  Employed at that place or by the same employer

(ii)                The victim’s employer or,

(iii)               A client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(b)    Without prejudice to the generality of paragraph (a)-

(i)                  such harassment has occurred, and

(ii)                either-

(I)                  the victim is treated differently in the workplace or otherwise in the course of his employment by reason of rejecting or accepting the harassment, or

(II)                it could reasonably be anticipated that he would be so treated,

the harassment … constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment……”

S2 (1) provides it is a defence for the employer to prove that the employer took such steps as are reasonably practicable to prevent the person from harassing the victim or to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment.

References to harassment are to any form of unwanted conduct related to the discriminatory ground, being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

S85A of the Employment Equality Act 1998-2015 provides that 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, it is for the Respondent to prove the contrary.

The Labour Court in Southern Health Board v Mitchell DEE1/2001 said “…that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”. The burden of proof rests on the Complainant to evidence her allegations. Complainant has made a complaint that she was harassed and victimised by the company on the grounds of her age, however, she has adduced no evidence linking the alleged harassment and victimisation to her age.

I find that a prima facie case of harassment and victimisation on the age ground has not been established and the complaints fail.

CA-00020934-001

I found this complaint is well founded and award a reduced sum of 4,500 euro gross financial loss together with 1,730.76 euro compensation for breach of the Act.

CA-00020934-002

The Complainant’s unfair dismissal claim fails.

CA-00020934-003

No evidence has been adduced by the Complainant of any complaint under the Act nor penalisation arising from this. The complaint fails.

CA-00020934-004

The Respondent objects to my hearing this dispute under the Industrial Relations Act 1969.

CA-00020934-005

I find that a prima facie case of harassment and victimisation on the age ground has not been established and the complaints fail.

Lack of service unfair dismissal, no complaint under Property Regulation Services Act 2011, no prima facie case of harassment or victimisation establish, failure to elect where parallel complaints