Complainant

Respondent

Anonymised Parties

Social Care Worker

Social Care Provider (In Liquidation)

Representatives

Lars Asmussen BL instructed by Seán Ormonde, Sean Ormonde & Co.

Sam Saarsteiner, Clark Hill Solicitors John Healy, Kirby Healy Chartered Accountants, Official Liquidator

Act

Complaint/Dispute Reference No.

Date of Receipt

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-00030827-004

10/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012

CA-00030827-006

10/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030827-007

10/09/2019

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

CA-00030827-008

10/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00030827-009

10/09/2019

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

CA-00030827-010

10/09/2019

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

CA-00030827-011

10/09/2019

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

CA-00031881-001

29/10/2019

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

CA-00031881-002

29/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00031881-003

29/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00031881-004

29/10/2019

The complainant worked as a social care worker with the respondent company from 13 September 2016 to 30 April 2019. He worked between 30 to 70 hours per week, depending on shifts. He was paid €15 per hour gross with additional payments for sleepover duty and on call duty. His gross pay for 2018 was €58,191 and for 2019 was €12,091. He submitted complaints to the Workplace Relations Commission on 10 September 2019 and 29 October 2019. He alleges that he was unfairly dismissed, that he was penalised for making protected disclosures, that he did not receive full pay and holiday pay due at the date of termination and did not receive a written statement of his terms and conditions of employment.

The complainant was employed by the respondent as a social care worker. He commenced employment on 13 September 2016. He worked with young adults and children and their families. The working pattern included overnight shifts. The complainant maintained he performed superbly well in his role and was never the subject of any disciplinary or performance related complaint or investigation prior to his dismissal.

From 2017 up until the point that he left the complainant raised complaints continuously about the way service users were being treated. The complainant was of the view that the complaints related to serious issues such as rents, for houses occupied by service users, not being paid, lack of heating in the houses, cash being mishandled, a lack of appropriate training for staff and a lack of proper supervision. The complainant claimed that no action was taken on any of his complaints.

The complainant claims he was traumatised after he was sent to collect a service user in Northern Ireland and bring her to one of the service’s houses. The service user had suffered a miscarriage. The complainant was traumatised when he was handed the foetus wrapped in cotton wool. He was distressed and although he made a complaint there was no follow up with him or with the service user. He stated he asked for counselling following this event, but none was provided to him.

The complainant claims he noticed a change in attitude towards him when he started following up on the complaints he had made. He claims that his hours were cut, and sleepover shifts were removed. Payment became irregular, often late or the full amount due was not paid on time.

The complainant claims that he was removed from the books by the respondent without a reason being provided. He was not told he was dismissed and only discovered that his employment had ceased when he logged onto the Revenue Online System. On ROS it was shown that his employment ceased on 30 April 2019.

The complainant claims he was due €1,600 in wages and €2,592 in outstanding holiday pay which he states the respondent failed, refused or neglected to pay to him.

The complaint claims he made disclosures to his employer about petty cash not being accounted for, service users not being properly provided for and staff not receiving adequate training, support or supervision. The complainant maintains these disclosures come within Section 5(3)(a), (b) and (d) of the Protected Disclosure Act, 2014. He maintains that these disclosures amounted to protected disclosures for the purpose of the2014 Act and that, as such, he is protected from penalisation in the form of dismissal resulting wholly or mainly from such a disclosure. The complainant claims he was penalised for making these complaints by having his hours unilaterally reduced without explanation, being forced out of the respondent and by his pay being erratically and improperly discharged.   The complainant relied on the decision of Comerford J in Dougan & Clark v Lifeline Ambulances Ltd (Unreported Circuit Court) to support his claim.

The complainant maintained that the complaints made by him to his employer were inherently related to the safety and health of both service users and employees of the respondent and were, as such, protected complaints under the Safety, Health & Welfare at Work Act, 2005.

The complainant seeks awards of compensation in respect of the above complaints. Further, he seeks compensation pursuant to the Terms of Employment (Information) Act, 1991 for failure by the respondent to provide him with a statement in writing of his terms and conditions of employment.   He also seeks payment pursuant to the Organisation of Working Time Act in respect of unpaid accrued statutory annual leave in the sum of €4,192.

The complainant submitted that the respondent failed to act reasonably in circumstances where they failed to conduct any or any adequate investigation and failed to invoke any or any adequate disciplinary process. Further, that the respondent failed to afford the complainant his entitlement to fair procedures in relation to his dismissal. The complainant relied on the following cases to support his claims: Mooney v An Post 4 IR 288, Cassidy v Shannon Castle Banquets and Heritage Limited [2000] E.L.R. 248, Redmond v Ryanair Ltd UD123/05, O’Ceallaigh v An Bord Altranais [2000] 4 IR 54, Burns v The Governor of Castlerea Prison [2009] IESC 33, Shortt v Royal Liver Insurance [2008] IEHC 332, O’Leary v Eagle Star Life Assurance Co of Ireland [2003] E.L.R. 223.

The respondent company was placed into provisional liquidation on 20 August 2019. The liquidation was confirmed on 11 September 2019. The complainant was aware that the respondent was in liquidation at the time he submitted his complaint to the Workplace Relations Commission. The complainant signed the complaint on 05 September 2019 and on the same day he returned a questionnaire which the liquidator had circulated to employees and ex-employees of the respondent company in which he did not disclose any claim other than outstanding pay due and payment for annual leave.

The respondent stated it had very limited access to documentation as it is in liquidation. It notes that it is regrettable that the complainant did not include any real detail of his claim in his initial claim form.

Time Limits

The respondent states that the complainant did not work for the respondent from 01 May 2019 onwards.   It is submitted that claims on the second complaint form are out of time as they were submitted outside the six-month time limit within which such claims may be brought. The respondent refers to the second complaint form being submitted to the Workplace Relations Commission in December 2019. It is submitted that complaints made on the second complaint form must fail as they are out of time. Counsel for the complainant corrected the date of submission of the second complaint, confirming it was submitted on 29 October 2019 and not in December as stated in their written submission.

Terms of Employment

The respondent accepts that the complainant was not issued with a formal document setting out his terms and conditions of employment. The complaint under the Terms and Conditions of Employment (Information) Act, 1994 is admitted. The respondent submits that the award of compensation for such breach of the Act should be at the lower level of the scale to reflect the complainant’s acceptance through his actions of the working arrangements and clear knowledge of the basic terms of his employment.

Payment of Wages

The respondent submits that their records show that the complainant was due payment of €40,394.51 in 2018 and was in fact paid €40,619.81, an overpayment of €225.30 (all net figures). For the four months, January to April 2019, the complainant was due payment of €9976.43 and was paid €10,027.00, an overpayment of €50.80 (all net figures).   The respondent rejects the claim of €1,600 being due to the complainant and notes that no evidence of the source of this amount was provided.

Hours of Work

The respondent submits that the complainant voluntarily accepted the role in full knowledge that it involved sleepover shifts. The interaction of such care work and the requirements of the Organisation of Working Time Act was the subject to Labour Court Recommendation LCR20837. The respondent submits that the Recommendation was inconclusive. This claim is resisted by the respondent.

Annual Leave

The respondent rejects the claim that the complainant is due payment for outstanding annual leave.   Their records show the complainant was due payment of €3,838.92 for annual leave in 2018. He was paid €2,750.15 leaving a carryover of €1,088.77 into 2019. He was due a further €993.90 for leave accrued in 2019. The respondent states that there was in fact an overpayment of €84.24 in 2019. The respondent submits the amount claimed, €4,192.00, is a conflation of the wages claim and an annual leave claim and is a calculation error and it notes that no evidence of the claim was provided.

Unfair Dismissal

The respondent submits that no act of dismissal has been identified by the complainant. The complainant resigned from his employment.

Safety, Health and Welfare at Work Act

The respondent submits that the complainant did not identify the penalisation and causation has not been shown.

Protected Disclosures

The respondent submits protected disclosure penalisation must have a causal link with the alleged disclosures. The respondent does not take issue with the description of the listed complaints as being fairly described as protected disclosures. However, the respondent does not accept the allegation of penalisation or that a causal link has been established between the alleged penalisation and the complaints made.

The complainant stated that from early 2017 he started to raise issues. He claims that his working hours were gradually reduced leading up to the time of his dismissal. The respondent submits that the details of the payments made to the complainant directly contradict that factual assertion and so no penalisation can be found there. The irregular payments applied to all employees as the respondent moved towards liquidation. The complainant was treated in the same manner as every other employee. The respondent rejects the claim of penalisation and notes the complainant has not provided evidence of a differential of treatment. The respondent relies on the following cases to support its submissions: Fingal County Council v O’Brien PDD184, McGrath Partnership v Monaghan PDD 162, O’Neill v Toni & Guy Blackrock Ltd. [2010] E.L.R. 21 and Solas v Wade PDD 186.

Conclusion

The respondent submits that the claims, other than the claim under the Terms of Employment (Information) Act, ought to be dismissed.

The complainant submitted his first complaint form to the Workplace Relations Commission before instructing his solicitor. His solicitor submitted a second complaint form. This caused some duplication of complaints. By letter of 06 November 2019 the complainant’s solicitor withdrew some complaints. At the hearing counsel for the complainant presented six complaints for adjudication.   The complaints are as follows:

Complaint pursuant to Section 8 of the Unfair Dismissals Act, 1977-2007

Complaint pursuant to Section 6 of the Payment of Wages Act, 1991

Complaint pursuant to Section 27 of the Organisation of Work Act, 1997

Complaint pursuant to Section 7 of the Terms of Employment (Information) Act, 1994

Complaint pursuant to Section 28 of the Safety, Health & Welfare at Work Act, 2005

Complaint pursuant to Schedule 2 of the Protected Disclosures Act,2014

Evidence

Mr X, a former director of the respondent company gave evidence. He described the difficulties the company had experienced during 2018 and 2019, in particular the difficulty in obtaining payment from a state agency. The method of payment from the state agency changed in January 2019 and this caused even more problems for the respondent company. The late payments resulted in staff not being paid on time and at irregular intervals. Some staff left as they were discontented with the irregular payments.

Staff engaged in unofficial action at the beginning of May 2019. Mr X stated that the complainant was rostered to work with a client at that time. The service resumed on 17 May 2019. Mr X stated that the complainant did not come into work on 17 May 2019. Mr X stated that the complainant told him that he was working for another body.   Mr X denied the complainant was dismissed.

Mr X stated that the complainant called to his home and that his wife found this action very upsetting.   She felt intimidated by the presence of the complainant. He said he received text messages from the complainant which contained a threat to protest outside Mr X’s home.

A meeting took place at the end of May 2019 between the complainant and Mr X. The complainant wanted to be paid what was due to him.   Mr X understood that the complainant had had enough, that he wanted to be elsewhere. Mr X stated that the complainant was not dismissed, he resigned.

Mr X stated that he had worked well with the complainant to try to resolve issues as they arose.   The company dealt with complicated cases and problems did arise. He had no issue with the disclosures being protected disclosures, but he rejected the claim that the complainant had been penalised in any way. Some clients request that particular people work with them, that was the same for all employees. He stated that the complainant had worked a greater number of hours in 2018 than in 2017. The sporadic payment schedule applied to all employees equally as it resulted from the difficulty in obtaining payment from the state agency. Mr X stated that the complainant was not penalised for making protected disclosures.

The complainant was upset following the trip to collect the client who had had a miscarriage.   Mr X acknowledged how upsetting this was for the complainant. However, he stated that over the two and a half years of the complainant’s employment all issues raised had been dealt with.

In response to questions Mr X accepted that the complainant was not given a written statement of his terms and conditions. He had understood a contract had been issued but he could not provide a copy. He stated that there was a grievance policy contained in the staff handbook and that staff were aware of this. Mr X accepted that the complainant had raised the issue of late payment, but he stated that it was the same for all employees. The complainant was treated the same as every other employee.

Mr X agreed that some rent payments were late, and this was due to cash flow problems. He did not recall the complainant raising an issue about the mishandling of petty cash, but he accepted there had been a problem. He agreed that there was a problem with heating in one of the client houses, this happened because the heating system broke down. Mr X stated that the issue with staff training was ongoing but was being dealt with. The issue of lack of professional supervision was addressed with the complainant.

Mr X did not agree that the complainant was pushed out or that he was penalised by having his hours reduced. He stated that in early 2019 a client the complainant was working with, one to one, complained and alternative work was then arranged for the complainant.

In May 2019 there was a strike and people didn’t come to work. Mr X understood that the complainant was rostered to work but that he was not making himself available to work. Mr X stated he was in hospital in May 2019 and did not have direct knowledge of the roster at that time.

Mr X arranged for an email to be sent to all staff inviting them to a staff meeting on 17 May 2019. The complainant did not attend the meeting. The problems with obtaining payment from the state agency continued and some staff left. From his meeting with the complainant at the end of May he understood that he was going elsewhere as he had had enough of the late payments. Mr X stated the complainant was not dismissed, he resigned.

Complainant

The complainant gave evidence detailing the complaints he had raised with the respondent company, in particular with the former director, Mr X.

The complainant stated that he was never given a copy of the grievance procedure.

Rent – The respondent company was in the business of providing social care. Houses were rented for the use by clients of the service.   The complainant had recommended house owners to the respondent and was concerned when the owners were not being paid the rent for their property. He stated that he raised this issue with the director on many occasions by text, phone and e-mail. He felt the director was getting impatient with him for raising this issue. The response was always that the respondent company was having difficulty in getting paid.

Petty cash – there was to be an allocation per week for food and household bills, but the correct amount was not being allocated. When this issue was raised the director again began to get impatient with the complainant.

Lack of heating in the client houses – one client was in a house with no heating for almost six months in 2018.

Training – the complainant stated that there was a lack of trained staff. The clients were often young unstable people. The complainant raised the issue of training with the director but there was no improvement.

Supervision – there was a lack of proper supervision. The complainant was studying for a degree in social care. His course required him to complete 180 hours supervised.   He failed his supervisory practice in the workplace because there was no proper supervision available to him.

The complainant said the former director, Mr X, was a nice man but he was not in a position to act, he buried his head in the sand. Facilities were not good; this was affecting the health and safety of service users and staff.

Payment – The complainant said the amount stated on employee’s payslips and the amount paid was often different. Payments were not made on time and he had used the credit union to pay his debts when he was not paid.

The complaint felt pushed out as the ‘on call’ system was changed in early 2019 and was not restored.   From that time Mr X and two other staff dealt with the ‘on call’ requirements.

The complainant stated that he did not receive a roster for May. The roster was normally sent out by email. He said he had been cut off from the email without explanation, but he could not remember the date this happened. He had called to sites, but other staff were on site and doing shifts.   In relation to the unofficial strike in early May the complainant said he was not involved. He had heard that some people were not going to work if they were not paid.

As he was due wages and payment for outstanding annual leave he tried to contact Mr X by email and text. He could get no reply, so he went to Mr X’s house. He spoke with Mr X’s wife and told her it was about his wages. He said Mr X did not like him going to his house. He later met at the office. He stated that he did not have a conversation with Mr X about working elsewhere.

The complainant stated that he discovered his employment had terminated on 30 April 2019 when he checked the Revenue Online Service (ROS) in September 2019. The complainant had worked with a previous employer for eleven years, he was on leave of absence when working with the respondent company. He was in talks with his previous employer in May 2019 and he returned to work there in June 2019.

Complaints

I will deal with each complaint in the order presented at the hearing:

CA-00030827-010 & CA-00031881-001 – A complaint pursuant Section 8 of the Unfair Dismissals Act, 1977.

The fact of dismissal is in dispute between the parties. Before considering the fairness or unfairness of dismissal I must be satisfied that there was a dismissal.

The complainant claims he was dismissed and that the conduct of the respondent company lead him to believe he was dismissed. He claims his hours were cut, payment of wages was erratic, in May 2019 he was not rostered for duty and there was no communication from his employer.

The respondent claims the complainant was not dismissed but resigned. It is claimed that the complainant did not turn up for work in May when he was rostered. He made a choice to return to work for his previous employer. The former director, Mr X, was in hospital for some period in April / May 2019. Mr X acknowledged the complainant as a good worker and he stated he was not dismissed.   The respondent points to the fact that while there were emails and texts about the payment of wages and holiday pay the issue of termination of employment was not raised. Further, when the liquidator sought information from the complainant the only issues raised were wages, holiday pay and redundancy payment. I note the complainant returned two separate forms to the liquidator and the redundancy payment was included on the later typewritten form.

The Act defines ‘dismissal’ at Section 1 as follows:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would

have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

I have carefully considered the written submissions and evidence given at the hearing. It is clear that no words of dismissal were spoken, or letter of dismissal issued by the respondent. It is also clear that the complainant did not submit a letter of resignation.

There is a conflict about whether the complainant was rostered for duty in May 2019. The respondent claims the complainant did not report for work, Mr X stated he understood the complainant wanted to be elsewhere and that he was in fact working elsewhere.

The complainant met with Mr X in May 2019, but the issues raised were about unpaid wages and payment for annual leave. What needs to be considered is how a reasonable employee and employer in such circumstances would understand the intention of the other party. I am satisfied that the complainant raised issues about wages due and holiday pay. He did so by text, email and in person. He even threatened to start a peaceful protest outside Mr X’s house if he did not hear from Mr X about his wages and holiday pay. The complainant did not complain about cessation of work or dismissal. The first complaint about dismissal was in September 2019 when he submitted his complaint to the Workplace Relations Commission. In his evidence the complainant stated that he was in talks in May 2019 with his previous employer about returning from his leave of absence. I am satisfied that the complainant, understanding the difficulties the respondent company was experiencing, decided to end his leave of absence and return to his previous employer. It was reasonable for the employer to conclude that the complainant had resigned as he was not at work in May 2019 and the only issues he raised were about outstanding wages and holiday pay. At the time he was seeking payment of his outstanding wages and holiday pay it would have been logical for the complainant to verify if he had been dismissed, he did not do so. I am satisfied, on the balance of probabilities, that there was no dismissal in this case.

CA-00031881-002 – Complaints pursuant to Section 6 of the Payment of Wages Act, 1991.

The complainant claimed that he was due €1,600.00 in wages for work performed in April 2019. The respondent submitted documents setting out the payments made. The documents were reviewed by the complainant and his legal representative following the hearing. By email, dated 28 February 2020 the solicitor for the complainant stated; “We havereviewed the documentation provided andwe are content that the Claimant has been paid all of his wages up to his dismissal.” The solicitor went on to say the claim for holiday pay remained outstanding as no holiday pay was listed on his payslips. I do not need to consider the claim for unpaid wages further. The claim for holiday pay was raised under the Organisation of Working Time complaint.

CA-00030827-007 – Complaints pursuant to Section 27 of the Organisation of Working Time Act, 1997.

The complainant claims that he was due and owed €2,592.00 in respect of accrued annual leave. He based his claim on working 80 hours per week for 52 weeks and calculated 8% of the total hours as 332.80 hours less 160 hours for leave taken in January 2019 leaving a balance due of 172.8 hours at €15 per hour, equating to €2,592.00

The respondent’s submission stated that the complainant was paid €2,750.15 for 2018. He carried over €1,088.77 to 2019 and accrued a further €993.90. It states he was paid €2,500.00 in 2019 resulting in an overpayment of €84.24.  

Entitlement to annual leave is provided in Section 19 of the Act as follows:

.19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

The statutory leave year runs from 01 April to 31 March. The time limit for bringing a claim in respect of annual leave was considered by Lavan J in Royal Liver Assurance Limited v Macken [2002] 4 IR 428 where he held that a claim may be brought within six months of the last day of the leave year or within the relevant leave year.   The complaint was submitted to the Workplace Relations Commission on 10 September 2019. Therefore, I have jurisdiction to adjudicate on the claim in respect of the leave year 01 April 2018 to 31 March 2019 and in respect of the leave year 01 April 2019 to 30 April 2019.

Section 19 provides three methods of calculating the amount of leave due. The complainant’s claim is based on 8% of the hours worked.   However, the 8% calculation is subject to a maximum of 4 working weeks. Based on the hours actually worked in the leave year 01 April 2018 to 31 March 2019 the complainant was entitled to 4 weeks annual leave. He availed himself of 10 days annual leave in January 2019 so the outstanding leave due was 10 days.

Section 23 of the Act provides:

Compensation on cesser of employment.

23.— (1) (a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be

paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

The respondent in their submission stated that the complainant had been paid for all annual leave. However, they did not submit payslips or records showing and confirming the payments had been made. The complainant states that he did not receive payment for leave and no payment is shown on his payslips. As the respondent has not provided evidence of the payments having been made I am satisfied that the complainant is due payment for 10 days for the leave year 01 April 2018 to 31 March 2019. He is also due payment for outstanding leave for the month of April 2019.

Based on the calculations of hours worked, provided by the respondent, I calculate that on average the complainant worked 13.2 hours per day at €15 per hour in 2018-2019. The outstanding balance for the year 01 April 2018 to 31 March 2019 is €198.0 x 10 = €1,980.00. The outstanding balance for the year 01 April 2019 to 30 April 2019, based on 8% of the hours worked is 17.6 hours x 15 = €264.00.   The complaint is well founded, and the complainant is due payment of €1,980.00 and €264.00, in total €2,244.00.

CA-00030827-008 – A complaint pursuant to Section 7 of the Terms of Employment (Information) Act, 1994.

The respondent accepted that the complainant did not receive a document in writing setting out the terms and conditions of his employment and as a continuing breach of the Act the claim is admitted. However, the respondent submits that compensation for this breach should be set at the lower level to reflect the complainant’s acceptance through his actions of the working arrangements and clear knowledge of the basic terms of his employment.

The complaint is well founded. I note the decision of the Labour Court in Megan Hayes Kelly v Beechfield Private Homecare DWT1919 where the Court awarded the maximum of four weeks’ remuneration in redress in circumstances where there were errors and omissions in the written statement. Failure to issue a statement, as required by the legislation, must be more serious than the issuing of a defective statement so I award the complainant four weeks’ remuneration.

CA-00031881-003 – A complaint of penalisation pursuant to Section 28 of the Safety, Health and Welfare at Work Act, 2005.

The complainant maintains that he made disclosures to his employer about petty cash not being accounted for, service users not being properly provided for and staff not receiving adequate training or supervision. These are the same complaints that the complainant has submitted a complaint about under the Protected Disclosures Act. He maintains that his complaints inherently related to the safety and health of both service users and employees of the respondent and were, as such, protected complaints under the 2005 Act. He maintains that as a result of having raised such complaints he was penalised by having his hours reduced without consultation, being forced out of the respondent and his pay being erratically and improperly discharged.

The respondent submits that the complainant has not identified the penalisation claimed in that it was not clear whether he was complaining of erratic wage payments or the alleged dismissal. Further, the respondent submits that the complainant has not shown any causation.

The complainant did not provide details of the dates on which complaints were made other than from 2017 onwards. No copies of the complainants were submitted with the submission or at the hearing.

Protection against penalisation for making a complaint regarding safety, health or welfare at work is provided for at Section 27 of the Act:

Protection against dismissal and penalisation.

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.

(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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair

Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly

from penalisation as referred to in subsection (2)(a).

The Labour Court considering Section 27 of the Act in Toni & Guy Blackrock Limited v O’Neill HSD095 held:

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment.

The respondent does not dispute the fact that complaints were made over a two-and-a-half-year period of the complainant’s employment.   However, the respondent maintains that all issues raised were dealt with and the complainant was not penalised for raising any such issues. It is for the complainant to establish that he suffered a detriment and that the detriment he alleges he suffered was imposed for having made the complaints.   The complainant, in his submission under the Protected Disclosure Act complaint, alleges he was penalised by having his hours reduced without consultation, being forced out of the respondent and his pay being erratically and improperly discharged.   Based on the submissions and evidence at the hearing I am satisfied that there was no dismissal in this case.  

It was clear from the evidence of both the complainant and the respondent that the business was in difficulty and had problems obtaining payments from a state agency. This resulted in wages being paid erratically.   The complainant stated that other staff had raised this problem with him. I am satisfied, based on the evidence of the complainant and the former director, that the way wages were paid was erratic for all employees and the complainant was not treated differently to other employees.

The complainant claims he had his hours were reduced without consultation. In his submission he exhibited two payslips, one for January 2018 and the other for March 2018. They show the complainant worked more hours in March 2018 than in January 2018 and do not support the claim that his hours were reduced in 2018.   He also exhibited a copy of his P60 for 2017 showing gross payments of €52,018.00. His P60 for 2018 was not exhibited but it was stated at the hearing that the gross payment for 2018 was €58,191.00. Clearly there was no reduction in hours between 2017 and 2018.   The gross payments for the first four months of 2019 do show a reduction in hours as compared to 2018.   However, it was clear from all the evidence that the business was in great difficulty in 2019, before going in to liquidation. Mr X in his evidence described how the change in the payment system introduced by the state agency had created particular difficulties. I note that the complainant worked more hours in April 2019 than in each of the previous three months. The complainant has not established that there was a link between the complainants he made and the reduced hours he worked between January and March 2019, compared to previous years. I accept the evidence of Mr X that the business was in trouble and that the new payment system introduced by the state agency created significant problems in early 2019. The complainant has not established that, ‘but for’ having made the complaints, the protected acts, he would not have worked reduced hours. Having considered the submissions and the evidence I am satisfied that the complainant was not penalised for making complaints concerning health and safety issues. This complaint is not well founded.

CA-00031881-004 – A complaint of penalisation pursuant to Schedule 2 of the Protected Disclosures Act, 2014.

The complainant claims to have made protected disclosures to his employer about petty cash not being accounted for, service users not being properly provided for and staff not receiving adequate training or supervision. The complainant maintains that these disclosures come within the definition of Sections 5(3)(a), (b) and (d) of the 2014 Act. He maintains that he satisfied the requirements of the 2014 Act and as the disclosures are protected disclosures he is protected from penalisation in the form of dismissal. The complainant did not provide details of the dates on which complaints were made other than from 2017 onwards. No copies of the complainants were submitted in the submission or at the hearing. The complainant claims he was penalised, as a result of having raised the complaints, by having his hours reduced without explanation, being forced out of the respondent company and his pay being erratically an improperly discharged.

The respondent did not take issue with the description of the listed complaints as being fairly described as protected disclosures. However, the respondent rejects the allegation of penalisation and submits there is no causal link between the alleged penalisation and the complaints made.

The Protected Disclosures Act, 2014 provides, at Section 11, protection from dismissal for having made a protected disclosure. I have already considered the submissions and oral evidence concerning the termination of the complainant’s employment. I am satisfied that the complainant was not dismissed.   Therefore, there was no penalisation in the form of dismissal for having made protected disclosures.

At Section 12 the following protection is provided for:

12. (1) 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 made a protected disclosure.

The Labour Court in Fingal County Council v O’Brien PDD184 considered the application of Section 12 and quoting the section held; “It follows that a complainant under the Act must demonstrate (i) that they made one or more protected disclosures; (ii) that they suffered a detriment; and (iii) that there is a causal connection between (i) and (ii).” Therefore, the complainant must establish that ‘but for’ having made the protected disclosure he would not have suffered the detriment alleged.

The complainant’s own evidence was that staff complained to him about the erratic payment of wages and that some left their employment because of that. It is clear that the problem with payment of wages was not directed at the complainant because he made protected disclosures. Based on the evidence of the gross payments made to the complainant there was no reduction in hours between 2017 and 2018. There was a reduction in hours in the first three months of 2019 compared to 2018 which occurred at the time when the respondent company was in significant difficulty. The complainant has not established that ’but for’ having made the protected disclosures he would not have suffered the reduction in his working hours in 2019.   Having considered the submissions and the evidence at the hearing I am satisfied that the complainant was not penalised for making protected disclosures. The complainant is not well founded.

CA-00030827-004, CA-00030827-006, CA-00030827-009, CA-00030827-011 – these complaints were withdrawn.

CA-00030827-010 and CA-00031881-001 – A complaint pursuant to Section 8 of the Unfair Dismissals Act, 1977

Having considered all the submissions and the evidence of each witness I am satisfied that there was no dismissal in this case. I find that the complainant was not unfairly dismissed.

CA-00031881-002 – A complaint pursuant to Section 6 of the Payment of Wages Act, 1991.

Following the hearing the complainant’s solicitor confirmed by email, dated 28 February 2020, that having reviewed the documentation provided by the respondent they were content that the claimant had been paid all his wages. The complaint was not well founded.

CA-00030827-007 – A complaint pursuant to Section 27 of the Organisation of Working Time Act, 1997.

I declare the complaint is well founded. I require the respondent to pay the complainant €2,244.00 gross for leave outstanding at the date of termination. This amount includes €1,980.00 for the statutory leave year 2018/2019 and €264.00 for the statutory leave year 2019/2020.

CA-00030827-008 – A complaint pursuant to Section 7 of the Terms of Employment (Information) Act, 1994.

The respondent accepted that there was a breach of the Act as no statement in writing of the terms and conditions of employment had been issued to the complainant. I declare the complaint is well founded. Considering all the circumstances I find it is just and equitable to order the respondent to pay to the complainant €2,845.00, equal to four weeks’ remuneration based on the 2019 figures submitted.

CA-00031881-003 – A complainant of penalisation pursuant to Section 28 of the Safety, Health and Welfare at Work Act, 2005.

Having considered the submissions and the evidence I am satisfied that the complainant was not penalised for making complaints concerning health and safety issues. I declare the complaint is not well founded.

CA-00031881-004 – A complaint of penalisation pursuant to Schedule 2 of the Protected Disclosures Act, 2014.

Having considered the submissions and the evidence at the hearing I am satisfied that the complainant was not penalised for making protected disclosures. I declare the complaint is not well founded.

Unfair Dismissal

Terms and Conditions of Employment

Penalisation

Protected Disclosure

Safety Complaints

Holiday Pay