ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00018492

Parties:

Complaint(s):

Date of Adjudication Hearing: 17/01/2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

This complaint from a Lithuanian National who is employed as a Cleaner refers to an unresolved dispute raised by the Complainant in September 2018 with the Respondent, a Contract Cleaner. The complaint was submitted in December 2018. The Respondent did not attend the hearing and I am satisfied the Respondent was properly notified of the date and location of the hearing.

Summary of Complainant’s Case:

The Complainant is a Lithuanian National who started her employment as a cleaner on 1st June 2016. She maintained that she worked in two areas of a client’s site where she would have worked from 6am to 8am in the morning in the grocery store for three mornings a week and then from 8am to 10am in the drapery store for four mornings a week. He working week amounted to 14 hours per week.

The Complainant advised that her employment was subject to a Tupe in June 2018 and she continued working the same pattern after the Tupe. She was issued two separate contracts of employment, one for 12 hours per week from 6am to 8am in the grocery store of a client and another contract for 6 hours per week from 8am to 10am in the drapery store of the same client. Her total contracted hours of work per week was 18 hours.

The Complainant submitted that she experienced difficulties with her supervisor in the Drapery Section. In January 2018 she had planned for annual leave for early May 2018, but three days before she was due to go for her leave her supervisor refused the leave. Her supervisor took leave over this period. The Complainant submitted she had to cancel her leave arrangements and lose the costs for her holidays.

The Complainant maintained that she experienced further difficulties with her supervisor and where her supervisor would shout and use inappropriate language. The Complainant maintained that the screaming and foul language occurred on the 31st August 2018. The   Complainant submitted that she also observed a member of staff take goods from the shelf and when this was raised it was not reported by the supervisor.

The Complainant maintained that she raised a letter of complaint on the 3rd September 2018 to management and the letter was ripped up in front of her. This letter had been signed by other members of staff. The Complainant advised that other members of staff were told by the manager to ignore the complaint.

The Complainant submitted that she was then advised on 2nd October 2018 that another employee who was a friend of the supervisor was appointed to the job and the Complainant was told that she was to be moved to another location for the 2 hours slot from 8am to 10am. This work was in a location 5kms away. She was told that her job was moved because matters were not resolved between herself and her supervisor n. She advised that as she has no car, she was not in a position to move to that location, and since the 2nd October 2018 he has lost 12 hours work a week. From the 2nd October 2018 the complainant was on sick leave for 12 weeks where she maintains that her sick leave was due to the stress she experienced at work. She would have submitted her sick certs to the employer which indicated stress on the sick certs, and she maintained that her daughter who was her point of contact would have been told by the Respondent that she was to advise in advance when she was due to take sick leave. The complainant was on medication for her stress and returned to work on 9th November 2018. She therefore lost 6 weeks work due to her illness.

Summary of Respondent’s Case:

The respondent failed to attend the hearing and I am satisfied that they were notified of the hearing and they did not object to the complaint being heard under the Industrial Relations Act.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Having considered the matters in front of me I find that the Complainant has been unfairly treated by her supervisor and the Respondent. I note her leave was cancelled at short notice in May 2018, however this complaint is deemed out of time.

It is clear in August and September 2018 the Complainant had difficulties with her supervisor, brought these concerns to the Respondent and where the Respondent ripped up her complaint and ignored her concerns.

The Complainant’s contract of employment refers to grievance procedures, however no grievance procedures were explained to the Complainant and her letter to a manager was a grievance but was ripped up in front of her. As a consequence, she was left with no option but to take sick leave.

I find that the decision to move the Complainant to another location 5 kms after raising her concerns in writing was a disproportionate and unfair way of addressing the concerns that were raised by the Complainant.

Having considered all the above and the uncontested evidence provided I recommend the following.

1. That the complainant be returned to her 12-hour work roster in the grocery part of the store and that she be compensated for any lost earnings due to being rostered to a different site that she could not attend.   
2. I recommend that the Respondent properly deal with the grievance raised by the complainant and appoint an independent and impartial party to hear the grievance and to make recommendations. 
3. I recommend that the Complainant and local management/supervisors at the sites where the Complainant works are trained with regard an employee’s rights under the various HR policies and procedures including the grievance procedures, and that the Respondent is required to document such training has taken place. 
4. I recommend that the Respondent provide copies of their HR policies and procedures in the appropriate language for non-native English-speaking employees so they can fully understand their rights under the policies. In this case the policies are to be provided in Lithuanian to the Complainant. 
5. I recommend all these actions be taken without delay.

Dated:   12-08-2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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