Complainant

Respondent

Anonymised Parties

A panel beater

A garage

Representatives

None

SIMI

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019628-001

06/06/2018

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

CA-00019956-001

22/06/2018

The complainant is a panel beater and works in a garage. He is paid €420 for a three-day week. He states that he has not received a statement of his terms of employment. He raises issues regarding bullying and harassment, his hours of work and his duties. The respondent disputes the claims.

In respect of the Terms of Employment (Information) Act complaint, the complainant outlined that he started employment in 2003, when he worked three days per week. The practice was that he was paid time and a half for additional hours worked. In January 2009, the complainant’s working time increased to five days per week and his salary increased accordingly.

The complainant outlined that in October 2010, his wages were cut as he worked a five-day week but was only paid for three days. The complainant did not agree to this and he was the only staff member so reduced. In 2012, he was put on a three-day week and his pay remained the same. The complainant also did not agree to this, especially when another employee worked longer hours. The only documentation were the three letters regarding the complainant’s hours, and he did not receive any other statement or contract. He continues to work for the respondent for three days per week.

The complainant outlined that his wages were cut while no one else’s were cut. The complainant learnt this after comparing his earnings with the manager, who he had earned more than. The complainant said that he now received €420 per week gross, i.e. pay for three days. When the complainant worked five days per week, he was paid €936.80 per week.

In respect of the dispute per the Industrial Relations Act, the complainant outlined that he was not offered the additional two days per week; instead the respondent hired another employee for Thursdays and Fridays. The complainant had an accident at work and was told to return to work. He informed the respondent that he was not coming back. He was told that there was no work for him the following week but did not receive anything in writing. He sought his contract of employment by letter on the 7th March 2016 and received no response. His solicitor wrote on the 11th March 2016. He worked all through this time, and attended work on Monday, Tuesdays and Wednesdays, despite being told that there was no work. He was able to work on those days as there was work to do. Three other staff members were engaged on five-day weeks. The complainant wrote to the HQ of a named manufacturer and this annoyed the respondent. In June 2018, the complainant was brought in to a meeting and was told that there was no work for him. He attended the workplace the following Monday and he observed that a new panel beater had started.

The complainant outlined that the bullying and harassment is being told not to come into work and to do duties beyond the panel beater role, for which he was not been trained. The manager told the complainant: “I will wave to you going out the door” if the complainant refused the role. The complainant refused to sign the GDPR update as it refers to receiving an up-to-date Staff Handbook and contract, but he had not received either. He was penalised in not being paid for refusing to sign this document and had to send a solicitor’s letter. The complainant outlined that the respondent refused to sign his FIS application, but later received the payment.

In reply to the respondent, the complainant said that while the respondent presented a statement dated 1991, this related to his employment for the respondent between 1991 and 1995. He outlined that the respondent had refused to pay him a public holiday in 2013 and handed him two pieces of paper regarding roles in Australia. The complainant said that he refused the respondent’s offer of a five-day week as he would be on a lower pay of €650 gross. He said that workers with less experience of the particular high-profile car manufacturer sold by the respondent were on the higher rate of pay for a five-day of €750 per week. The complainant said that his job description is “panel beater”, but he is expected to do mechanical, electrical and diagnostics roles, for which he had no training. The complainant said that there were four occasions that he was told not to come in.

The respondent outlined that the complainant commenced employment on the 7th October 1991 and resigned this employment on the 24th September 1996. The complainant recommenced employment with the respondent on the 4th February 2003. His duties involved panel beating, spray painting, servicing, mechanical and other diagnostic work. The complainant was initially paid €815 per week and this increased to €936.80 per week. The respondent set out that the complainant’s hours were reduced by agreement in 2012 to a three-day week because of the recession. At this time, the complainant was operating a separate business. The respondent negotiated a five-day rate of €700, which the complainant has not agreed to.

The respondent submits that it provided the complainant with a statement in 1992 but did not do so on his return to its employment in 2003. In respect of the Industrial Relations dispute, the respondent submitted that because the complainant did not agree to return to a five-day week in January 2016, it had to hire two additional employees. Those employees were appointed in April 2016 and June 2018. It submitted that since 2016, the complainant had refused to do jobs such as spray painting, servicing, mechanical or diagnostic work. The respondent submits that it had to employ other staff because of the complainant’s refusal to carry out these duties. It states that the offer of a five-day role is no longer available.

The respondent outlined that the agreement in September 2012 was to reduce the complainant’s days to three days because he was running his own business. He negotiated a lower rate of pay of €700 pro rata. The complainant, however, refuses to carry out specific tasks, therefore reducing the availability of “suitable work” for him. The respondent submitted that there was nothing from him in writing regarding bullying and harassment.

The respondent stated that it cannot provide training as the complainant refuses to do all the roles. It submitted that the rate it can charge remains well below pre-recession levels. The respondent said that the complainant continues to play an important role and is only allocated bodywork. It cannot offer a five-day arrangement for the complainant. It outlined that the complainant only dealt with sales and did not do customer repairs. He will not come in on Thursdays or Fridays to ensure that work is done and will also not cover annual leave.

The respondent stated that no one is getting more than €700 per week, which is the same pro rata rate as the complainant. The respondent stated that it wanted the complainant to return to full duties.

There was one occasion in 2016 when a representative of the respondent told the complainant not to come in and he did. There was suitable work for the complainant. The representative acknowledged that there were other occasions when he said that it was “five days or nothing”.

The complainant referred a complaint and a dispute to the Workplace Relations Commission. His employment commenced on the 4th February 2003 and he is paid €420 per week. The respondent exhibits a contract of employment, dated the 17th October 1991 and giving a weekly rate of pay of £130.

CA-00019628-001 / ADJ-00015097

This is a complaint pursuant to the Terms of Employment (Information) Act. The complainant asserts that he was not provided with a statement of the terms of employment when he started working for the respondent in 2003. The respondent accepts that no statement was provided in 2003 and refers to one being provided in the early 1990s when the complainant previously worked for it.

Section 3 of the Terms of Employment (Information) Act provides that an employer is required to provide to the employee a statement of the terms of their employment within two months of the start of this period of employment. In this case, the respondent was obliged to provide the statement within two months of the 4th February 2003. This is a breach that subsists during the currency of the complainant’s employment.

I find that there has been a contravention of the Terms of Employment (Information) Act as no statement was provided to the complainant, as required by section 3. Pursuant to section 7 of the Act, I award redress equivalent to four weeks’ wages, i.e. €1,680. This awarded is merited as the statement would have covered many of the issues that later became subject to dispute between the parties, for example the nature of the role and the hours of work.

CA-000199556-001 / ADJ-00015358

This is a dispute lodged pursuant to the Industrial Relations Act. It relates to many issues, for example the roles to be undertaken by the complainant and what training is available to him. It relates to his hours and days of work as well as his rate of pay. All told, the complainant has worked for the respondent for many years and this case is unfortunately marked by a high level of acrimony.

It is beyond the scope of this adjudication to make findings on the detailed issues raised over many years. I note, however, the correspondence issued on the complainant’s behalf by his solicitors and his own letter to the car manufacturer. It is clear that the complainant was seeking a resolution of his difficulties at work.

There are several Codes of Practice issued by the Workplace Relations Commission and other bodies to foster good workplace relations. They seek to ensure that workplace disputes are addressed as quickly as possible.

There is the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000). This provides that grievance procedures should be in writing and given to the employee at the commencement of their employment. It requires that a grievance be dealt with in stages and should be fairly examined and processed. It sets out that adequate records should be made of grievances.

The Code of Practice Detailing Procedures for Addressing Bullying in the Workplace (SI 17/2002) provides that there should be a contact person available to an employee who feels they are being bullied. It provides that issues can be addressed informally or by a formal procedure or investigation. It points to the benefit of training.

There is also the HSA Code of Practice for Employers and Employees on the prevention and resolution of bullying at work (2007) as well as the Code of Practice on Sexual Harassment and Harassment at Work (2012).

The respondent did not present documentation to show how the complainant could air his grievances and how they could have been fairly and thoroughly investigated. The complainant was not given access to such procedures, despite his repeated grievances and complaints.

It follows that my recommendation is that the respondent pay to the complainant €1,500 in compensation for the failure to provide an appropriate avenue (and supporting documentation) for the complainant to raise grievances and complaints regarding his duties, access to training, hours and days of work. I further recommend that the parties engage in workplace mediation to address these longstanding grievances, so that the parties can move forward.

CA-00019628-001 / ADJ-00015097

I decide that the complaint pursuant to the Terms of Employment (Information) Act is well founded and the respondent shall pay to the complainant redress of €1,680.

CA-000199556-001 / ADJ-00015358

Pursuant to the Industrial Relations Act, I recommend that the respondent pay to the complainant €1,500 in compensation.

I recommend that the parties engage in workplace mediation to address these longstanding grievances, so that the parties can move forward.

Terms of Employment (Information) Act / subsisting breach

Industrial Relations Act / avenue to air grievances / Code of Practice