Complainant

Respondent

Anonymised Parties

A Warehouse Operative

A Regional Distribution Centre

Representatives

David Nohilly Solicitor

Larkin Tynan Nohilly Solicitors

Killian O'Reilly Solicitor            Fieldfisher Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032173-001

13/11/2019

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

CA-00032173-002

13/11/2019

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

CA-00032173-004

13/11/2019

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

CA-00032173-005

13/11/2019

The Complainant is a Warehouse Operative. He commenced employment with the Respondent on the 1 September 2010.  He was in employment with the Respondent at the time of the hearing.

His gross monthly pay was €2,300.00.

Complaints CA-00032173-001 and CA-00032173-002 were withdrawn prior to the hearing

CA-00032173-004

This complaint was of penalisation for requesting a banded hours contract / a new 36 hour + contract in March 2019 under the Employment (Miscellaneous Provisions) Act 2018.

The Complainant submitted that he was the second of three employees at the time that requested such a contract. He submitted that of the other two employees, one was dismissed, and one was on a final written warning.

The Complainant was advised by management at the time that it was "not profitable" to offer him such hours.

The Complainant explained that he was subjected to a disciplinary process in July/August 2019.

He submitted that he had a settlement agreement with the Respondent which set out that no disciplinary proceedings could commence without the prior approval of a named manager.

The Complainant requested a copy of his personnel file and there was no prior approval to the commencement of the disciplinary process against him on the file. The Complainant submitted that this amounted to a breach of the settlement agreement.   

The Complainant explained that the terms of reference for the disciplinary process were not the same as the findings in the final decision and verbal warning.

He claimed the whole process was vexatious and fundamentally flawed.

The Complainant made a Labour Court referral CD/19/409 and arising from same, the verbal warning given to him was expunged and removed in its entirety as if it had never happened from the

Complainant's employment file.

The Complainant had no dispute about the level of his recorded absences. He explained how working on the distribution centre floor involved lifting items continuously and this led to injuries.  He submitted medical certificates and the reasons for his absences were identified on same.

He disputed that his level of absenteeism had been raised earlier.  His case was that immediately or instantaneously after requesting his banded hours contract, he was subjected to a disciplinary process which referred to absences more than two years earlier. He asked the question why these absences were not investigated at the time. He submitted that it was "but for" requesting a banded hours contract that he was penalised in the manner described.

CA-00032173-005

This complaint related to deliberately false or misleading information in the Complainant core terms.

The Complainant received a Sick leave absence form dated 27th of August 2019 as part of his data access request which allegedly contained his signature. The Complainant explained that this was not his signature. He submitted that he did not authorise any person to sign the procedure on his behalf.

He claimed that management for the Respondent falsified this sick leave absence form and submitted that this was evidence of penalisation.

CA-00032173-004

The Respondent submitted that there was no reality or truth to the Complainant's claim that an act of penalisation arose out of his request for a banded hours contract.

It submitted that it embraced the introduction of banded hours and it promoted the payment of a living wage to its staff.

Its evidence was that on 26 March 2019, the Complainant sought a 36-hour contract. His request was granted on 11 April 2019.

89 other staff in the Distribution Centre also sought and were granted contract amendments following the enactment of the Employment Miscellaneous Provisions Act 2018.

The Respondent explained that there were 248 staff currently employed at the Distribution Centre.

The Complainant had the highest level of absence of any employee in the Distribution Centre. The average in the Distribution Centre was six days per annum per employee. The Complainant's average absence between 2015 and 2019 was 34 days per annum.

The Respondent explained that it had a generous sick pay policy and monitored the use of the scheme.  23 other staff were subject to similar investigation into their absences in the summer of 2019.  Of the 23 other staff that were investigated, 3 had requested a banded hour contract like the Complainant.

The Complainant was invited to an investigation meeting July 2019 to discuss his level of absenteeism. The named manager in the earlier settlement agreement was aware of and had approved the commencement of the investigation. Following the investigation, the Respondent concluded that the Complainant had a case to answer and the matter proceeded to the disciplinary phase.

A disciplinary meeting took place on 12 August 2019 and ultimately a verbal warning was imposed. This was the lowest form of sanction available and it was communicated to the Complainant by letter 19 August 2019. The Respondent submitted that the letter communicating the decision to impose the sanction of verbal warning contained a typographical error whereby the author confirmed that the Complainant had failed to adhere to the correct absence notification process.

The Respondent set out how the findings of the investigation and disciplinary hearing were reached clearly in relation to the Complainant's level of absenteeism.

An appeal hearing took place on 6 September 2019. The appeals officer refused to uphold the appeal.

In November 2019, the Complainant raised a formal grievance relating to the way an internal Absence Report Form had been completed while he was absent. The grievance was not upheld. Following an appeal, the Respondent paid the Complainant's sick pay.

By letter 26 February 2020, the solicitors for the Respondent confirmed that the verbal warning was inaccurate for the reasons aforesaid and confirmed that it would be expunged from the Complainant's personnel file. 

CA-00032173-005

The respondent submitted that the form the subject matter of this complaint was an internal payroll form. It covered notification by line managers to payroll regarding payment under the sick pay scheme.

CA-00032173-004

The Employment (Miscellaneous Provisions) Act 2018 was introduced to address problems identified by the casualisation of work and to improve the security and predictability of working hours for employees.

It inserted protection against penalisation into the Terms of Employment (Information) Act 1994 in Section 6(c).

This section is broadly similar to Section 27 of the Safety, Health and Welfare at Work Act 2005. 

6C sets out: Protection against penalisation

(1) An employer shall not penalise or threaten penalisation of a employee for —

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

………

6C (5)

In this section “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), 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 or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

A cause of action can only accrue to an employee under s.6C of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by subs.(1) and but for the protected act the employee would not have suffered the detriment complained of (see O'Neill v Toni & Guy Blackrock Ltd [2010] E.L.R. 1) in terms of the Safety, Heath and Welfare at Work Act 2005.

“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 detriment 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 suggests 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. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

The Complainant must establish, on the balance of probabilities, that he is entitled to the protection of Section 6C of the Act.  It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his actions covered by Section 6C were an operative consideration leading to his detriment or penalisation.

My concern is not the fairness or otherwise of the procedures implemented. 

In the instant case the action relied upon is the requesting of a banded hours contract in March 2019. The penalisation or detriment complained of is the investigation and disciplinary action in relation to a sick pay scheme in July 2019.

Having considered the evidence presented to me orally and in writing, I prefer the evidence of the Respondent namely that the investigation and disciplinary action into the Complainant's level of absence was brought in circumstances where the Complainant had a very high level of absence in comparison with his co-workers in the Distribution Centre and it had nothing to do with his request for a banded hours contract.

The Complainant was one of a number of staff who were similarly investigated at this time.

I have no doubt that there are other employment-related issues between the parties.  However, as a matter of probability, I do not accept that the request for the banded hours contract was the operative reason for the investigation and disciplinary process. Based on the evidence presented to me in relation to the Complainant's number of absences, there was an independent reason for the Respondent to decide to instigate an investigation not related to his request for a banded hours contract.

CA-00032173-005

Section 3(1A) of the Terms of Employment (Information) Act 1994 sets out the core terms that must be provided to an employee.

Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week.

The Complainants complaint is not covered by these core terms. 

I have no jurisdiction to hear this complaint. 

CA-00032173-001 - CA-00032173-003  Withdrawn

CA-00032173-004.  This complaint is not well founded.

CA-00032173-005.  This complaint is not well founded.

Request for a banded hours contract. Penalisation.