ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020529
Parties:
| Complainant | Respondent |
Anonymised Parties | Facilities Technician | Facilities Management Services Provider |
Complaints:
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-00027024-001 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00027024-002 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00027024-003 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00027024-004 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 8 of the European Communities (Working Conditions of Mobile Workers engaged inInteroperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of | CA-00027024-005 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00027024-006 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00027024-007 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00027024-008 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00027024-009 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00027024-010 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00027024-011 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00027024-012 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00027024-013 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00027024-014 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00027024-015 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00027024-016 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00027024-018 | 12/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00027024-019 | 12/03/2019 |
Date of Adjudication Hearing: 05/06/19 and 23/07/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Procedure:
This matter comes before an Adjudicator of the Workplace Relations Commission on foot of a series of complaints which are contained in a Workplace Relations Complaint Form dated the 11th of April 2019 wherein contravention of certain Statutory Acts (and instruments) have been outlined.
In accordance with Section 41(4) of the Workplace Relations Act, 2015 this matter has been referred to the Adjudicator Services by the Director General of the Workplace Relations Commission and in particular it has been referred so that this matter can be inquired into and the parties be given an opportunity to be heard and to present evidence relevant to the complaint.
The Complaints have been made within the appropriate time limits.
Several Complaints have been made under Section 27 of the Organisation of Working Time Act 1997 (as amended). Pursuant to Section 27 of the Organisation of Working Time Act, a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- Declare the complaint was or was not well founded;
- Require the Employer to comply with the relevant provision;
- Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
A number of complaints speak to a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991sets out the instances wherein deductions can and cannot be made.
In a preliminary way, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated 11th of April 2019 was submitted within the time allowed.
Another complaint has been made of an Unfair Dismissal having been visited upon the Complainant where he did not have twelve months service and as he does not have sufficient service, he can seek adjudication under the Industrial Relations Acts
This dispute is heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant has made a complaint of penalisation and it is noted that Section 26 of the Organisation of working time Act 1997 states
An Employer shall not penalise or threaten to penalise for
- Invoking any right under the Organisation of Working Time Act
- Opposing in good faith an action which is unlawful under this Act
- …
In general terms an Employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful. It is noted that if a penalisation of an employee constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, relief may not be granted to the employee in respect of that penalisation both under this part and under those Acts.
Background:
The Complainant claims he was summarily dismissed for Gross misconduct and claims that this amounted to an Unfair Dismissal and/or a penalisation for raising issues concerning what he perceived to be unsafe demands made of him and the hours he was expected to drive. |
Summary of Complainant’s Case:
The Complainant was fully represented, and I was provided with a submission together with relevant evidentiary documentation. The Complainant says that he was Summarily dismissed over matters that were never fully investigated and that this in fact amounted to a penalisation for having raised issues amounting to a protected disclosure and wherein he says he disclosed unsafe practices being asked of drivers expected to work dangerously long hours. |
Summary of Respondent’s Case:
The Respondent’s HR Manager was present to make the Respondent’s case. I was provided with the material documentary evidence and the Respondent’s position was robustly defended. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant commenced his employment with the Respondent Service Provider on the 18th of December 2018. The Complainant came from a technical skills background - in the area of chilling and AC units and in-house systems. It is worth noting from the outset that the Complainant lived in Monaghan which meant that his working day had a two hour commute either side of it, which fact was known to the Employer. This meant that the once in every fifth week of “on call” service was bound to be more difficult for the Complainant than other of the Respondent’s employees. On call operated overnight and was over and above the daytime hours though if an overnight Service call was attended to, there would be compensatory paid hours rest the next day. There were another four or five employees in the mobile unit alongside the Complainant and all of them were under the direct supervision of the Operations Manager CG. I accept that the Complainant had all the necessary training and upskilling and toolbox talks as might be expected in a position such as this. The Complainant knew that he was on Probation for the first three months and although the expiration of this period did not bring the promised letter confirming permanent status, nor was there any issue raised that could possibly have extended the probationary period. I am therefore finding as a matter of fact, that the Complainant was a permanent and full -time employee after March 2018. The Complainant’s employment was uneventful and satisfactory for the first six months but a series of low level complaints came to the attention of CG in June and July of 2018. On the first complaint CG spoke with the Complainant on his manner when on client’s premises. He left it at that as there was no need to escalate. Three more complaints came in and they all related to the Complainant’s manner when dealing with clients more than anything more specific. On foot of these complaints CG wrote to the Complainant passing on the information on the initial complaints (by way of email dated the 30th of July 2018) and stating he would meet him on the 3rd of August 2018 to discuss these issues. Unusually, the Complainant was met with by CG outside a client’s building and they had a discussion together outside in the public area. This does not, to my mind, amount to a satisfactory way of dealing with performance issues. In the circumstances, I suppose it might be credible to think that the complainant saw this meeting as reasonably casual. I note that CG took on board the defences and explanations put up by the Complainant in relation to each of the purported complaints and I note that the Complainant agreed that he had used bad language inappropriately on one occasion though he says it was not directed at anyone and was in response to not being able to find the entrance to a building to which he had been called in the middle of the night. I note that one of the complaints was from a client who appeared to be put out that the Complainant asked her to double check that it would really be necessary to get called back from Monaghan to Dublin for a failed AC unit – I don’t think this was unreasonable and the Complainant had in fact ultimately turned up as requested. In any event at the meeting on the 3rd of August CG indicated that he would have to move the issues on to the HR department but he would also raise the concerns being expressed by the Complainant about the long hours of work he had to undertake on his rotated “on call” weeks. This is being put forward as a health and safety issue and was forwarded by CG by way of email on the 3rd of August 2018. On the 10th of August CG wrote to the HR department (AS) indicating that this matter (i.e. the series of client complaints) needed “to move to formal warning”. He briefly outlined each of the four customer complaints and the Complainant’s responses. At this point I must assume the issue was in the hands of the HR department. In an initiative of his own, the Complainant wrote to several layers of Management above CG outlining his concerns about the late night call outs he was undertaking. This was in an email dated the 28th of August 2018. The Complainant described exhaustion and the danger it posed to him and other road users when he was driving exhausted all the time. The Complainant was therefore drawing attention himself to the Health and Safety issue as he perceived it. The Complainant feels that any action taken after this time was by way of penalisation for having raised the issue. As it happens there was no real action taken in the immediate aftermath of the 3rd of August meeting and the Complainant was not invited to come and give an account of himself to the HR Department as part of any move towards the “formal warning” recommended by his line Manager CG. In fact I think it is common case that the fact and content of the email complaints (i.e. the third party/clients who had been critical of the Complainant) were accepted wholesale by the Employer/HR Department and no witness statements were ever taken or other pertinent evidence gathered. I understand that other issues concerning sick leave may have arisen in the interval but these did not form the basis of the invitation issued to the Complainant on the 30th of October (some three months later) to attend a formal meeting at head office on the 1st of November. The invitation came from CG though he would not form part of the party hosting the meeting. The invitation was to a disciplinary meeting to discuss ongoing issues with performance and it should certainly be noted that the Complainant was not advised at this point that the outcome of the proposed meeting could be the termination of his employment. The Complainant was not told what, if any, consideration was made of the complaints and what mitigation was taken into account – the Complainant not having being interviewed. In fact, the Complainant is advised by CG that the meeting is intended “as a follow up to our discussions on Friday 3rd of August”. Therefore, the proposed meeting was intended to be limited to the issues discussed at the on-street discussion held with CG. In the circumstances the Complainant attended this meeting totally unprepared, alone and unable to counter the ambush that lay in wait. Two people from HR (not particularly well known to the Complainant) were at the meeting and it is beyond doubt that the decision to terminate this employment was made well in advance of the meeting held on the 1st of November. It is disappointing to note that a company with an annual turnover in the hundreds of millions with 850 employees would think so little of this (albeit short-serving) employee that it would simply jettison all attempts at operating a system of fair play. I have seen no evidence of a formal complaint having been taken into the HR department, comprehensively investigated and with irrefutable conclusions drawn. Instead what I have seen is an unseemly rush to terminate the employment of an employee before the expiration of 52 weeks and in circumstances where the Employee has raised a serious health and Safety issue (whether misconceived or not). I cannot know, based on the evidence presented by the Respondent at this hearing whether there was ever justification for the termination of the employment based on the (external) complaints raised – these matters were simply not independently investigated. Maybe there was sufficient misconduct to justify a dismissal -but the way this termination of this employment was brought about, involved such fundamental lack of proper procedure that I have no alternative other than to determine that this was an Unfair Dismissal. I am not sure why the complainant did not appeal and perhaps he should have as the option was open to him as stated in the letter of termination which said letter is dated the same day as the Supposed Disciplinary meeting and which I understand was prepared in advance of the meeting which supports the fact of pre-determination which I am finding happened as a matter of fact. In not seeking to Appeal under the company process I accept that nothing in the process up to that point could have given him the confidence to think he would be treated with dignity and fairness. Returning to the email sent on the 28th of August 2018 the Complainant submits that this email constitutes a complaint or representation regarding health, safety and welfare at work. I recognise this letter as a good faith opposition of a work practice believed by the Complainant to be unlawful. The question falls to me to determine if the Complainant was penalised for having made this representation. The initial burden of proof is on the complainant to establish a protected act and a detriment. If and only if the complainant established a protected act and a detriment does the burden shift to the respondent to put forward evidence that the detriment suffered was not due to the protected act being an operative cause. Toni & Guy Blackrock v. Paul O’Neill [2010] 21 E.L.R. 1 established that the burden of proof is on a complainant to establish that on the balance of probabilities (a) he committed a protected act, and (b) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. The Labour Court held that if both limbs were satisfied, the burden shifted to the employer to show, on credible evidence, on the balance of probabilities, that the protected act did not influence the detriment imposed.
Section 27. (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.
The acts protected from penalisation are set out in s. 27(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, as regards 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.
The scope of what can be a protected act is broad. For example, the mere request for a copy of a bullying and harassment policy was sufficient for the Labour Court in In Board of Management of St. David’s CBS Secondary School Artane v. Siobhan McVeigh (HSD 118, 8th July 2011), to find that a protected act. It is also well established that an employee does not have to use the respondent’s grievance procedure for their act to amount to a protected act. The relevant case here (from the point of similar facts) is the case of Stobart Ireland Driver Services v. Carroll [2013] IEHC 581, a truck driver asked that he not to be rostered due to his fatigue. This act was held to be a protected act by the Labour Court and the High Court, on appeal. Kearns P. spoke to the broadness of the Act of 2005 by stating, at paragraph 26:- “There is no requirement in the Act to report any complaint via a grievance procedure. The Act specifically states "report…as soon as practicable". Thus, the respondent in this case can be deemed to have made his complaint when he reported that he was too tired to drive.
It is clear that the subject matter of a protected complaint or representation is not relevant to determination of claims pursuant to s. 27. In St. John's National School v Jacinta Akduman [2010] 21 E.L.R. 301, the Labour Court held that it was making no finding in relation to the veracity of the complaint of bullying, in making its determination pursuant to Section 27. |
As previously stated, I am bound to find that the meeting arranged for the 1st of November between the Complainant and the Respondent was so far removed from a recognisable Disciplinary meeting (as part of a recognisable Disciplinary process), that I am minded to agree with the proposition that the Complainant was in fact being penalised for having raised the issue of the dangerous driving pattern being foisted on him by his Employer. The Complainant had raised an issue with the highest levels of management and was dismissed for his trouble.
The Complainant provided me with work rosters and schedules of the hours and weeks he was expected to work for the purpose of establishing breaches of the Organisation of Working Time Act and payment of Wages. Each of the 18 separate complaints were gone through separately and where appropriate, some claims were withdrawn as being repetitive or otherwise. In its defence, the Respondent was adamant that it has not fallen foul of the legislation and operates a safe and appropriate workplace in this regard.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00027024-001 – This complaint fails as I heard no evidence concerning unlawful deductions outside of the question of Minimum Notice. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00027024-002 – This complaint is well founded. The Complainant was refused his Contractually agreed to Notice and I award the complainant €3,500.00. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00027024-003 – This complaint is not well founded as the complainant did not demonstrate he was not getting lawful rest periods. Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 CA-00027024-004 - This complaint is withdrawn. Complaint seeking adjudication by the Workplace Relations Commission under Regulation 8 of the European Communities (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of CA-00027024-005 - This complaint is withdrawn. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00027024-006 - The Complainant was able to demonstrate a number of weeks wherein he had worked in excess of that allowable under Statute. His Complaint is well founded and I award the sum of €300.00. Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 CA-00027024-007 - This complaint is withdrawn. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00027024-008 - This claim of working excessive night hours is not well-founded. Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 CA-00027024-009 - This complaint is withdrawn. Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 CA-00027024-010 - This complaint is withdrawn. Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 CA-00027024-011 – The Complaint has been withdrawn.
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 CA-00027024-012 - This complaint is withdrawn. Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 CA-00027024-013 - This complaint is withdrawn. Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts CA-00027024-014 - The Complainant has established that he was Unfairly Dismissed. The Dismissal amounted to a penalisation. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00027024-015 - This complaint is withdrawn. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00027024-016 - The Complainant has made a case of having been penalised for his actions and I award the sum of €13,000.00 Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00027024-018 - This complaint is withdrawn Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00027024-019 - This complaint is withdrawn |
Dated: 17/09/19
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Key Words:
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