Complainant

Respondent

Anonymised Parties

An employee

A language school

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00029338-001

27/06/2019

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

CA-00029338-002

27/06/2019

The complainant is employed by the Respondent language school, his employment commenced on 14/07/2016.

This complaint was received by the Workplace Relations Commission on 27th June 2019.

I made a complaint regarding the conduct of my employer; after an incident that occurred on the morning of the 21st of June 2019.

However, as I stated in my complaint, the main reason for taking action was that I felt this incident

was fuelled by the inaction of the school over the previous months and years.

Firstly, I would like to note that when I began my employment in 2016 I did not receive an

employee handbook - I do not know if one exists but I do believe it is mentioned in the

contracts given to employees that one should be received before signing. I was never

given/shown the grievance policy that I assume is in the handbook.

Even though I have made multiple issues visible to both my line manager (no longer working

at the company) and the general manager of the school I didn't know the full grievance

policy until July 2014 when the new HR manager sent it to me upon request after I told

her I had never received the handbook. I still have not been given a handbook.

None of the issues that I raised had a 2nd or 3'd follow up. I was never offered to have a

colleague join me for those meetings. I was always told that the school would take action,

but I was never given a follow up on any action taken.

The WRC case of Pauline Giltrap v Glencullen Developments notes that it is important that

employers follow disciplinary procedures and not to use them haphazardly. Additionally,

employees must be clearly shown these rules and procedures. Where a staff handbook is in

place the employer needs to provide it to all employees.

Alongside my complaint I provided several emails correlating to the issues that I had raised

with the school over the past months. These include:

a) An issue regarding the company policy on working from home with the laptops provided

- in this instance I worked partially from home when unwell and was told that I would be

paid for that day, only to find out it would be marked as a sick day instead.

b) lssues regarding the commercial manager signing agreements with companies who had

fraudulently misrepresented the school. Complaints from myself and another member of

staff were not followed up and could have had a significant impact on a student experience

in Dublin.

c) Members of staff receiving complaints from the commercial manager who accused them

of offering discounted prices. Staff were blamed when an agency complained about this.

After investigation, it was students booked by the commercial manager who had received

discounts. Complaint was made about this conduct and the reply was not too worry as the

manager was leaving anyway.

d) I opened up about a situation that had occurred the year before with the former COO of

the company. The commercial manager said that he took this very seriously and that he

would speak to the owner of the company. An apology was promised within 1 week. Full

details of the incident can be seen in an attached email- "Re discussion last week" but in

short; the COO called me a "greedy asshole" for asking about the possibility of a raise. This

apology never came and 3 months later I raised it again with the General Manager. lt was

really upsetting to have to relive this experience once, let alone twice. Even then, I have

never gotten a formal apology from the owner as requested.

The Complainant raised some incidents other incidents that were not included in his complaint form to the WRC, these cannot be included as part of the complaint as the Respondent employer was not on notice that such complaints would be raised at the hearing.

In summary the Complainant quite clearly states that he has been employed by the Respondent for more than 3 years and has made many great friends. The Complainant admits to learning a loy during his employment and has grown as a person. However, the Respondent has continuously hidden complaints under the carpet. In the Complainant’s own words, he admits that he has had dozens of issues brought to management regarding harassment, misrepresentation, bullying and concerning business practices. The Complainant has never seen any action being taken in relation to his complaints.

The Complainant has stated that this is the only time he ever suffered with anxiety.

The Complainant is at a loss of €1,059 as a result of being absent from work.

The Complainant commenced employment with the Respondent on 18 July 2016. On 21 June 2019 the Complainant raised a grievance, which was investigated fully by the Respondent and resolved to the satisfaction of the Complainant, in line with the Respondent’s Grievance Procedure.

In or around 27 June 2019, prior to completion of the investigation under the Respondent’s Grievance Procedure, the Complainant filed complaints with the Workplace Relations Commission seeking adjudication under:

·         Section 13 of the Industrial Relations Act, 1969 (the “1969 Act”); and

·         Section 7 of the Terms of Employment (Information) Act, 1994 (the “1994 Act”).

The Respondent has provided the Complainant with a written statement of his terms and conditions of employment and has notified the Complainant of all changes to his terms and conditions of employment in writing, and therefore has complied with its obligations under the 1994 Act.

factual Background

The Complainant commenced employment with the Respondent, an English language school providing a variety of English courses, on 18 July 2016 in the role of Student Recruitment Executive.

On 15 July 2016, prior to commencement of employment with the Respondent, the Complainant was provided with and signed a contract of employment, containing the requisite particulars required of the Respondent under the 1994 Act:

·         “The provisions of this contract will constitute notice to you of your terms and conditions of employment as are required to be given to you pursuant to the Terms of Employment (Information) Act 1994."

·          

On 9 July 2018 the Complainant was promoted to the role of Student Recruitment Team Leader. The majority of terms of the Complainant’s employment remained as set out in the contract dated 15 July 2016. The only change was to the Complainant’s job title and duties and the Complainant's annual salary.

The Respondent met with the Complainant on 5 July 2018 to offer him a promotion to the role of Student Recruitment Team Leader. Following that meeting, in line with its obligations under section 5 of the 1994 Act, the Respondent notified the Complainant in writing of the changes to his terms and conditions, should he accept the new role. An email was sent to the Complainant which confirms that the change to the Complainant’s terms and conditions of employment, as follows:

“Role: Student Recruitment Team Leader

Reporting to: RM, dotted line to EF

Salary: €33,000 per annum

Start date: 9th July 2018

Job Description: As below"

The email also set out a detailed job description for the new role.

The Complainant confirmed his acceptance of the new role and change to his terms and conditions by email of 6 July 2018.

The Complainant subsequently received a contract of employment for the new role, confirming those terms that remained the same and those terms that had changed, of which the Complainant had previously been notified.

Investigation of the complainant's concerns

On Friday 21 June 2019, a student attended the Respondent's office and acted in aggressive manner towards two members of the Respondent's staff, before entering a classroom without permission. In an attempt to diffuse the situation and remove the student from the premises, and on the request of the General Manager for the Respondent, the Complainant's manager, asked the Complainant to process a refund for the remainder of the student's course.

Following the interaction between the manager and the Complainant; the Complainant emailed the GM and Mr G B, Director, outlining his account of the interaction and noting that it made him feel uncomfortable and "very embarrassed".

Mr GB responded to the Complainant by email later that day, acknowledging receipt of the Complainant’s email and suggesting that he and the Complainant discuss the matter on Monday. As the Complainant had indicated that the incident had upset him, Mr GB signed off the email by stating:

·         “Hope you have a good weekend and don’t stress on things too much if you can (need to take that advice myself though sometimes also!!)”.

This statement was intended to acknowledge receipt of the Complainant’s email and to reassure the Complainant. It was not in any way intended to undermine the Complainant or imply that his concern would not be dealt with.

The Complainant was subsequently out of the office on annual leave from Tuesday 25 June to Thursday 4 July 2019.

As the concern raised related to the Complainant’s manager, the Respondent commenced an initial fact-finding investigation under the Respondent’s Grievance Procedure. As part of the investigation, the Respondent's Human Resources Department interviewed and took statements from the line manager and the following individuals who witnessed the interaction:

·         Ms DS Student Recruitment Executive;

·         General Manager; and

·         Ms B, Student Recruitment Executive.

On 3 July 2019, the Complainant contacted the Respondent’s Human Resources Department advising that he had been signed off sick by his doctor until 1 August 2019. On 5 July 2019, the HR Coordinator for the Respondent, responded to the Complainant by email stating:

"I'm sorry to hear that you are unwell, and I wish you a full recovery soon. I acknowledge receipt of your medical certificate received on Tuesday 2nd July 2019 stating that you are unfit for work from 4th July to 1st August 2019.

We are investigating the incident that occurred on Friday 21st June, and I had been planning to meet with you yesterday to hear your account of what happened. I hope to meet with you to discuss it upon your return to work.”

I hope you feel better soon.”

On 13 July 2019, the Complainant responded to the HR co-ordinator, suggesting possible dates for a meeting and it was agreed that the parties would meet at 11:00am on 18 July 2019 at an external venue.

The Complainant attended the meeting with the HR co-ordinator and the GM on 18 July 2019 and a copy of the Complainant's statement of events, as provided at that meeting was completed. The meeting was constructive and following the meeting the Complainant agreed to meet with the line manager on his return to work, with a view to resolving the matter.

At 9:30am on 1 August 2019, the first day of the Complainant’s return to work, the HR co-ordinator met with the Complainant in advance of the agreed meeting with the line manager to explain the context of the meeting that was due to take place with the line manager; namely that it was a means to resolving the matter informally pursuant to the Respondent's Grievance Procedure; and to discuss lessons learnt and agreeing means by which the individuals and the Company could prevent a similar situation occurring in the future.

The informal grievance meeting took place between the Complainant, the line manager and the HR co-ordinator at 11:00am on 1 August 2019 and a copy of the note of that meeting was made available for the hearing of the complaint. At that meeting, the Complainant and the line manager apologised to each other and agreed that, in the future, if a similar issue arose as to a decision made by the line manager the matter would be raised with the HR co-ordinator and/or the GM. Both the line manager and the Complainant agreed to put the interaction behind them and to work together amicably going forward. Following that meeting, the HR co-ordinator sent an email to the Complainant and the line manager confirming that the parties had agreed to resolve the matter and stating:

“Firstly, thank you for agreeing to meet today to discuss the events that took place on 21st June.  Thank you for taking the time to listen to each other and for acknowledging your parts in the situation on that morning.

I confirm that you have both apologised to one another and moving forward we have agreed that good communication and discussion are key elements to a successful working relationship.

If there ever is a concern about a course of action on a particular task, please come and speak to either myself or RM so we can come up with an agreed solution which should enable you to work together effectively as a team.

I now am closing the file on this issue.”

The Complainant did not at any time indicate that he was not satisfied with the outcome and/or that the matter or any other concerns should be progressed to the next stage of the Respondent's Grievance Procedure or any other procedure.

The "DISPUTE” to be investigated under THE Industrial Relations Act, 1969

The Complainant has raised an industrial relations complaint, taken under Section 13 of the 1969 Act, which provides at section 13(2) that:

“Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”

It is submitted that the dispute referred to the Adjudication Officer has now been resolved via the Respondent's Grievance Procedure and therefore no longer exists. The Respondent took all reasonable steps to address the concerns once they were raised and the Complainant agreed to participate in the meeting to resolve the issues. In the circumstances, it is not necessary or appropriate for the Adjudication Officer to make a recommendation.

Complaint under the terms of employment (information) Act 1994

The Respondent understands that the Complainant will allege, under this heading, that he has not received a written copy of his terms and conditions of employment and/or that he did not receive same within the requisite time limit and therefore the Respondent is in breach of the 1994 Act.

The Respondent disputes any assertion that it has not complied with the 1994 Act and submits that:

The Complainant was provided with a written statement of his terms and conditions of employment, on 15 July 2016, prior to commencement of employment;

The Complainant was notified of any changes to his terms and conditions in writing, in line with the Respondent’s obligations under section 5 of the 1994 Act; and

The Respondent's Grievance Procedure does not form part of the Complainant's contract of employment nor is the Respondent required to provide a copy of same to the Complainant under the 1994 Act. In any event, a copy of the Respondent’s Grievance Procedure was available to the Complainant at all times via the Respondent’s K drive. The Complainant was also provided with a copy of the grievance procedure by email on 14 June 2019.

Without prejudice to the above and in the event that the Adjudication Officer finds that there has been a breach of the 1994 Act, the Respondent submits that:

It has complied with the spirit of the 1994 Act by providing the Complainant with notice of any changes to his terms and conditions of employment in writing;

the Complainant has not been unduly prejudiced by any failure on the part of the Respondent (Archbold v CMC (Ireland) Ltd TE05/2003); and

any deviations from the 1994 Act were “so trivial, technical, peripheral or otherwise so insubstantial as to come within the de minimis rule” (Irish Water v Hall [2016] 27 ELR 61).

and therefore, no award of compensation should be made.

The Adjudication Officer is referred to Udalous v South East Vegetable Producers Ltd TE 224/2014, applying Archbold v CMC (Ireland) Ltd TE05/2003 in which the Employment Appeals Tribunal (as it was then known) was entitled to determine what, if any, payment was just and equitable in all the circumstances, including whether a complainant was "unduly prejudiced" by a contravention of the Act. InUdalous the Tribunal held that, although there had been a contravention of the 1994 Act;

·         “taking into consideration the comprehensive contract and additional information provided to the employee … [the] employer complied with the spirit of the Terms of Employment (Information) Act 1994 to such an extent that it would be unjust for the Tribunal to exercise its jurisdiction ordering the employer to award compensation to the employee.”

Conclusion

In conclusion, the Respondent submits that:

The dispute referred to the Adjudication Officer has now been resolved via the Respondent's Grievance Procedure, it is not necessary or appropriate for the Adjudication Officer to make a recommendation under the 1969 Act; and

The Respondent has complied with its statutory obligations towards the Complainant under the 1994 Act and therefore no award of compensation should be made under the 1994 Act.

The Complainant raised some other incidents that were not included in his complaint form to the WRC, these cannot be included as part of the complaint as the Respondent employer was not on notice that such complaints would be raised at the hearing.

In relation to CA-00029338-002 (complaint referred under the Terms of Employment (Information) Act, 1994. I have considered the Respondent’s submission and the contention that this grievance was dealt with to completion under the internal grievance procedure.

The Complainant was issued with a contract of employment that he signed on 15th July 2016. On 5th July 2018 the Complainant received an email, the subject line was Offer. This email provides job title, salary, start date and a job description, at hearing the Respondent stated that in all other respects the original contract stands. This practice is adopted by many companies.

The Complaint as submitted under the Terms of Employment (Information) Act, 1994 is not well founded and therefore fails.

In relation to CA-00029338-001, submitted under section 13 of the Industrial Relations Act, 1969 I have considered this carefully and have confined the complaint to incidents around the 21st June 2019. The Complainant in his complaint form claims that the incident took place on 21st April 2019, all other indications would suggest that it took place on 21st June 2019

The incident was investigated and on 1st August 2019 the HR co-ordinator sent an email to the Complainant and the alleged perpetrator informing both that they had apologised to each other and that the matter was closed. Neither party, including the Complainant, objected to this course of action. What is slightly strange is that the Complainant participated in this meeting on 1st August having made a complaint to the Workplace Relations Commission on 27th June 2019.

I noted that the Complainant claims “In the last 12 months I have had dozens of issues brought to management regarding harassment, misrepresentation, bullying and concerning business practices”. This is concerning.

I am satisfied that the matter was dealt with to completion between the time of making the complaint to the WRC and the date of the hearing. This being the case I will not make any recommendation in relation to this complaint.

As outlined.