Complainant

Respondent

Anonymised Parties

Cleaner

Cleaning services provider

Representatives

Marius Marosan

Hugh Hegarty Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030439-001

22/08/2019

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

CA-00030439-002

22/08/2019

The complainant commenced employment with the respondent as a cleaner in in 2016. The respondent assigned her to a Dublin hospital. She asked to be transferred to a site nearer to her home in June 2018.

The complainant has submitted two complaints. The first complaint is that the respondent failed to comply with Employment Regulation Order (ERO), S.I No. 418/2015 in that the requisite terms of employment were not provided to her.

Her second complaint is that she was dismissed on the 1/3/2019 contrary to the provisions of the Unfair Dismissals Act, 1977.

She worked 40 hours a week. Her hourly rate was €10.80.

She submitted her complaints to the WRC on 22/8/2019.

CA-00030439-001. Complaint under Section 45A of the Industrial Relations Act, 1946

The complainant commenced employment with the respondent as a cleaner in March 2016. The respondent assigned her to a Dublin hospital. She asked and was transferred to a site nearer to her home in June 2018.

The respondent failed to give the complainant a contract in March 2016 that complied with the then operative Employment Regulation Order for the Cleaning Industry, S.I. No. 418 of 2015 which came into effect in 2015.

Part 111 of S.1 No. 418 of 2015 states:

"All Employers will, on request or within two months of the commencement of employment,

provide each employee with a written statement of the employee’s terms of employment in

compliance with the Terms of Employment (Information) Act, 1994, including:

Name of Worker, PPS Number, Date of commencement of employment (Day, Month, Year),

Name of Company, Address of Company, Pay (Weekly, Hourly, Bonus [if any]), Pension

scheme (if any), PRSA provider, Hours of work (Morning, Evening, Night), Four weeks’

notice of change in hours of work or payment in lieu of notice to be given to each employee,

Overtime, Hours for which it will be paid, Rate during weekdays, Rate at week-ends and

Sundays and Bank Holidays, Shift Hours, Hours, Rate, Particulars of times and duration of

rest periods and breaks"

The complainant’s representative contends that most of the requirements of the above ERO are absent in the contract of March 2016. For example, the respondent could change the complainant’s notice hours with only a week’s notice, despite the above ERO specifying that

 "Four weeks’ notice of change in hours of work or payment in lieu of notice to be given to each employee".

The Industrial Relations Act, 1946, provides at Section 45, subsection (3), paragraph (b) that

"the court by which the employer is convicted may order the employer to pay to the worker

such compensation as it fair and reasonable in respect of such non-compliance."

The complainant maintains that S.I No. 418 of 2015 and not the revised S.I No. 548/2016 -as contended by the respondent and which came into force in November 2016- is what should have applied to the complainant’s contract of employment in March 2016.

CA-00030439-002.Complaint under Section 8 of the Unfair Dismissals Act, 1977

Complainant’s evidence.

The complainant stated that she started in a Dublin hospital in March 2016.She asked to be transferred to a specific site known to have vacancies, and due its proximity to her home.

She never asked for a change of hours nor expressed any unhappiness with the hours worked, as the respondent's representatives stated in their submission.

 The respondent agreed to the transfer in May 2018. She transferred to the site, Site A, nearer to her home in June 2018. She stated that the respondent told her that it was for 6 months but as there was no problem with her work, she would be retained by them after the 6 months. She never asked to take on a new contract. She was not informed that she would be on a fixed term contract and she only learned of this after she had started on the new site. After her contract ended, on 1 March 2019, the complainant discovered that other people were employed to perform her duties. A former colleague of the complainant supplied a written statement confirming this and the complainant asked the adjudicator to consider the statement.

The complainant raised a grievance with the company on 8 January 2019 concerning payment for annual leave and she believes that this is what prompted the respondent to dismiss her. The money was not paid until her dismissal on 1 March 2019.

She states that other cleaning staff were retained on site A, the site where she had worked. She was dismissed despite the job still being available

The complainant states she was offered no concrete job, though plenty could have been offered to her.

She chose not to apply for any of the positions listed on the respondent’s website as she had lost confidence in the company and did not trust them any more arising from their failure to respond to her grievance. In addition, they continued to employ people on the site.

The complainant’s representative stated that the wording of the letter of 22 February only gave her the option to search and apply again for a role. Hence, her dismissal was imminent.

The complainant was only given one week’s notice; she was entitled to two weeks’ notice as she was employed for 3 years.

Remedy.

The complaint seeks compensation.

Loss.

The complainant secured work a month after her dismissal, working 40 hours a week. She receives the same rate of pay. So, her loss was one month's wages and one week’s pay in lieu of notice.

CA-00030439-001. Complaint under Section 45A of the Industrial Relations Act, 1946

The respondent states that they are in full compliance with section 3 of S.I.  No. 548/2016 in that terms were provided to the complainant within 2 months of the commencement of her employment.

ERO, S.I No. 548/2016 replaced S.I No.418/2015.

The respondent submitted a copy of the contract and associated documents demonstrating compliance.

CA-00030439-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The dismissal is not contested.

The respondent accepts that the complainant’s initial appointment was to a part-time permanent position in March 2016.The complainant advised the respondent that she was unhappy with her working hours. She was offered a 40 hour a week position in a site closer to her home, Site A. She signed a fixed tern contract on 18 June for six months a copy of which was submitted after the hearing. It stated that the contract would expire on the 19 December 2018. The respondent wrote on the 29 August, advising her that the contract was due to expire on the 19 December. The respondent informed her by way of letter on the 27 November that the client wanted to retain the respondent ‘s cleaning staff for the remainder of the project on site A; its completion was ultimately delayed until 1 March. The client requested the extension from the respondent on a month-to-month basis.

In February the respondent advised the complainant that the specific purpose contract would expire on 1 March 2019. The respondent advised her of other jobs listed on their website and invited her to apply for same. Had she applied for one of these roles, her employment would not have been terminated.

Evidence of Ms 1, Administrator with the respondent.

The witness stated that she spelt out to the complainant the consequences of her giving up the permanent job in another part of Dublin in June 2018 in exchange for a 6-month fixed term contract nearer to the complainant’s home. The interview notes submitted by the respondent clearly indicate the temporary nature of the job to which she was appointed in June 2018. The fixed term contract was renewable subject to the demands of the client. The witness advised her at the end of February that the company was happy with her work and to apply for other jobs posted on the respondent’s website. Contrary to what the complainant asserts, the witness denied that she had ever said to the complainant that she would be retained.

The complainant signed a statement accepting that the contract was for 6 months.

The reason why the contract was extended for a further 9 weeks on a specified purpose basis was that the project was not completed; it was delayed

In cross examination the witness advised that job performed by the complainant did not exist after the 1 March.

The respondent advised the complainant of the availability of jobs in other sites, all identified on the company websites and to indicate an interest in one of them if she should choose.

Grievance.

The respondent’s representative advised that this concerned a claim in June and December 2019 for payment in respect of untaken annual leave, made before the end of the leave year. She was paid for this leave on the termination of her employment.

Minimum notice.

 The complainant submitted no complaint under the Minimum Notice and Terms of Employment Act 1973.

CA-00030439-001. Complaint under Section 45A of the Industrial Relations Act, 1946

I am obliged to identify what, if any, infringements of the Employment Regulation Orders governing conditions of employment in the cleaning services industry occurred.

The complainant maintains that S.1 418 of 2015 is the operative Order as the complainant commenced employment in March 2016 and S.I 548 of 2016 did not come into effect until Month 2016. However, S.I No 548 of 2016I states that

“the 2015 Order is amended by substitution for the Schedule to it the Schedule set out in the Schedule to this order”

The complainant’s permanent contract which commenced in March 2016 ended in June 2018.The complainant took up a new fixed term contract which she signed in June 2018. This is governed by S.I No 548 of 2016.

The condition of employment signed by the complainant on the 18 June 2018 conform to the requirements of S.I 548 of 2016 with the exception of the requirement set out in Part 111, to provide 4 weeks’ notice of any change in the complainant’s working hours. The complainant signed an addendum to the contract of 18/6/2018 agreeing to a shift fixed at 7am to 3 pm for the duration of the project on which she was engaged on a fixed term contract, and which was scheduled to expire on December 2019. The complainant presented no evidence of any deviation on the respondent’s part from this requirement to retain her at the contractually fixed hours, nor of the failure to give 4 weeks’ notice where the respondent had changed her hours.  Neither did the complainant present any evidence of when and how the respondent failed to comply with the requirement set out in S.I No 418 of 2015 to give four weeks’ notice of a change in working hours during the term of the contract which ran from March 2016 – June 2018.

I do not find this complaint to be well founded.

CA-00030439-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The dismissal is not contested.

The complainant maintains that she understood that she had merely transferred in June 2018 from one site to another, on the same contract, and only became aware of the employer’s position that she was employed on a fixed term contract when she saw the respondent’s submission to the WRC.

On the basis of the written and oral evidence, most especially the fixed term contract signed by the complaint, I accept that the complainant surrendered her permanent contract in June 2018 and entered into a fixed term contract, scheduled to run for 6 months with the respondent. I accept that it was extended as a fixed purpose contract on 27 November 2019 until the completion of the project.

The respondent maintains that the complainant’s fixed purpose contract expired on the 1 March 2019 and that this fact - the mere expiration of a fixed purpose contract -deprives the complainant of the right to seek redress under the Unfair Dismissals Acts 1977-16.

I accept that the respondent set out the effects of transitioning from a permanent contract to a fixed term contract to a limited extent in June 2018. The complainant was not advised to seek advice on the consequences of surrendering a permanent contract and requesting and accepting a fixed term contract.

Section 2(2)(b) of the Unfair Dismissals Act 1977-2016 can exclude the operation of the Act but only in circumstances where a fixed term contract “is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”

The contract signed by the complainant on 18 June 2018 was devoid of this provision and made no mention of the applicability or non- applicability of the Unfair Dismissals Act 1977-2016.

The absence of this written term in the complainant’s contract entitles her to contend that her dismissal was unfair. Section 6 (1) of the Act states that a dismissal

“shall be deemed to be unfair unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6(4)(a) states that

“a dismissal of an employee shall be deemed for the purposes of this Act, not to be an unfair dismissalif it results wholly or mainly from one of or more of the following:

The capability, competence or qualifications of the employee for performing the work of the kind which he was employed by the employer to do.”

No such case was advanced by the respondent.

I find that none of the obligation set out in S.I No 146 and which lie with an employer intent on dismissing an employee were honoured.  She was informed of the termination after the decision had been made; she was not offered the right to argue against her dismissal, nor the right of representation. The respondent denied the complainant the opportunity to appeal the decision to dismiss her. I find that the respondent could have retained her in one of their other sites.

I find that the complainant was unfairly dismissed.

I find that the complainant is entitled to seek redress under Unfair Dismissals Act 1977-2016.

Loss

The complainant took up employment within one month of the dismissal on the same hours and on the same salary.  Section 7(2)(c) of the Act requires that the complaint should attempt to mitigate her loss. The complainant presented no evidence of having sought alternative employment during the month of March. I accept the respondent’s argument that she chose not to apply for any of the advertised positions on the respondent’s website.

I therefore award the complainant €864 which amounts to two weeks salary.

Notice.

The complainant requested payment of an additional week’s notice. No complaint was made out in the complaint form nor indicated in the body of the complaint that a breach of the notice requirements had occurred. Aside from this omission, S.I. No. 548 of 2016, Part 1V, states that the notice to be given to fixed term employees will be as per those set out in the Protection of Employees (Fixed Term Work) Act 2003 which states at Section 8

“(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—

(a) arriving at a specific date,

(b) completing a specific task, or

(c) the occurrence of a specific event.”

The complainant was advised in accordance with these terms on 22 February 2019 of the completion of the project.

I do not find that the complainant is entitled to an extra week’s paid notice.

CA-00030439-001. Complaint under Section 45A of the Industrial Relations Act, 1946

I do not find this complaint to be well founded.

CA-00030439-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977

I find this complaint to be well founded. I require the respondent to pay the complainant the sum of €864 in compensation for this breach of the Unfair Dismissals Act, 1977.

Employment Regulations Order; Unfair dismissal; fixed term contract