Complainant

Respondent

Anonymised Parties

A Cleaner

A Cleaning Company

Representatives

Ger Kennedy, SIPTU

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 13 of the Industrial Relations Act, 1969

CA-00033280-001

19/12/2019

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

CA-00033280-002

19/12/2019

The Complainant commenced employment with the Respondent, a contract cleaning company, on 27 August 2018, in the role of a part time cleaning operative, primarily providing relief cover. 

In her first year of employment, the Complainant worked on eight different sites, with each assignment being of a short duration. In addition, the Complainant was uncertified sick leave for five months.

On 13 September 2019, while on a period of sick leave, the Complainant was advised by the Respondent that she was no longer required at the site at which she worked at prior to her sick leave. Over the following period, the Complainant was offered alternative work on two other sites. The Complainant refused these offers on the grounds that the hours were insufficient.

In October 2019, the Respondent, at the Complainant’s request, issued a letter for Social Welfare stating that her last day of work was 13 September 2019.           

On 19 December 2019, the Complainant submitted two complaints to the Workplace Relations Commission as follows:      

§  Complaint under Section 13 of the Industrial Relations Act, 1969 (Ref CA-00033280-001)

§  Complaint under Section 6 of the Payment of Wages Act, 1991 (Ref CA-00033280-002)

These complaints are the subject of this adjudication.

CA-00033280-001 – Industrial Relations complaint:

According to representations made on behalf of the Complainant, she is a permanent employee of the Respondent and, as such, had an expectation to be treated reasonably, in line with complete procedures in regard to any matter effecting her employment relationship.

It was submitted on behalf of the Complainant that hair removal from her contractor position in September 2019 was without notice and without any opportunity of contesting that decision. It was further submitted that the manner in which the cap Respondent acted was in total disregard of their own disciplinary policies and the provision of S.I 146 of 2000.

According to the Complainant’s submission there was a clear obligation on the Respondent to engage with her in an effort to find some reasonable remedy in respect of an alternative work location. It was submitted that the Respondent took three months to make any offer of alternative work and that those offers were only made following her referral of the matter to the WRC. The Complainant further stated that that Respondent made no attempt to reconcile the employment limbo that she had been placed in.

In conclusion, the Complainant stated that she was seeking a recommendation that Respondent engaged positively with her with the view to securing a reasonable alternative position. The Complainant is also seeking compensation on a financial basis for what she deems to be a fundamental breach of her rights to fair procedures and natural justice full stuff.

CA-00033280-002 - Payment of Wages complaint:

In submissions made on behalf of the Complainant, with regard to her payment of wages claim, reference was made to Section 5 (6) of the Act, which confirms that non-payment of wages properly due to an employee is considered as a deduction from wages.

According to the Complainant’s submission, the removal from her employment by the Respondent without notice or the application of fair procedure must be viewed as a suspension from duty and, therefore, as a result she is entitled to be paid during that suspension.

The Complainant further submitted that, at the time of her referral to the WRC, she was owed €2,462.40 in wages.

In conclusion, the Complainant stated that she was seeking a determination that the non-payment of wages constituted a breach of the Payment of Wages Act and, therefore, a direction that the Respondent to make good on that payment.

CA-00033280-001 – Industrial Relations complaint:

According to submission made on behalf of the Respondent, the claim brought by the Complainant under the Industrial Relations Act is not properly before the Adjudicator, as she had not raised this matter internally. According to the Respondent, the Complainant had not raised a grievance in relation to this claim, had not instigated the grievance procedure and had not completed the internal process, which would be required in order to properly bring this claim before the WRC.

The Respondent further submitted it is standard practice in Industrial Relations that internal procedures should be exhausted prior to a complaint being submitted to the WRC. According to the Respondent, as the Complainant had failed to fulfill her obligations to follow procedures, she should be prevented from having this matter adjudicated upon.

Notwithstanding the above argument, the Respondent submitted that the Complainant had, at all times, being treated fairly and was paid for the hours she worked. In response to the Complainant’s contention that she had not been provided with contractual hours of work upon her return from sick leave, the Respondent submitted that the Complainant was employed as relief staff and her terms and conditions of employment are silent on the hours to be provided.

According to the Respondent, the Complainant's employment had no guaranteed hours and, in support of this contention, it was submitted that in each of the 19 pay cycles during the Complainant’s employment, she never worked the same number of hours in any cycle. The Respondent submitted that this was due to the nature of the cover work provided by the Complainant.

The Respondent submitted that when the Complainant finished work on her last site, she was offered two positions, totaling 14 hours per week. It was further submitted that when the Complainant made contact with the Respondent in December seeking work, she was offered 5 positions. However according to the Respondent, the Complainant refused these offers of work and a further 5 positions which were offered in January 2020.

In conclusion, the Respondents submitted that the Complainant’s complaint is not well founded, that she did not utilise the internal procedures and, additionally, that she is not owed any contractual hours, as she was offered alternative work at the time.

CA-00033280-002 - Payment of Wages complaint:

In response to the Complainant’s claim under the Payment of Wages Act, the Respondent submitted that she commenced employment as a relief worker and, as a result worked on multiple sites, where the number of hours varied. It was further submitted that, at no time, was the complaint guaranteed any set hours by her terms of employment. According to the Respondent, it is the nature and the necessity of cover work that the Complainant cannot be guaranteed any steady hours as the work available is based on the needs as they arise.

According to the Respondent’s submission, the Complainant is not entitled to the 19 hours she is claiming, as she neither worked those hours nor was she entitled to them under her terms and conditions of employment. In addition, the Respondent submitted that following completion of her work on her last site, the Complainant was offered two positions which would have mitigated any loss which she is alleging she suffered. However, the Respondent pointed out that the Complainant made the choice to refuse the job offer, preferring instead to avail of social welfare.

In conclusion, on this aspect of her complaint, the Respondent submitted that the Complainant’s decision to refuse the job offers made to her obviates any claim she may believe she has under the Payment of Wages Act. According to the Respondent, the Complainant cannot refuse work and then successfully make a claim under the Act.

Accordingly, the Respondent denies that the Complainant has any claim to the wages for the period for which she is claiming. However, notwithstanding this, the Respondent submitted that if the Complainant did have a contractual right to offered hours, then that obligation was met by the hours which she was offered, but subsequently refused.

With regard to the issues arising in relation to this complaint, the Complainant and the Respondent made written submission and also provided oral evidence at the Hearing. I have carefully considered and evaluated all of the evidence adduced and submissions made in this regard in reaching my determinations as set out below.

It is clear from the evidence adduced that the Complainant was employed as a relief cleaner and her contract of employment did not specify hours of work or work location. The evidence also indicates that, while the Complainant was on sick leave, the position she had been filling prior to her sick leave was no longer available to her on her return, due to the return of the original job holder to that position.

In addition, I am satisfied, from the evidence adduced, that the Respondent made reasonable efforts to source alternative locations/hours for the Complainant. However, as the Complainant found these alternatives to be unsatisfactory, she refused the offers and decided instead to avail of social welfare.

On that basis, I find the Complainant’s contentions, that the Respondent removed her from the roster in a manner that constituted a disciplinary action and/or was linked to a disciplinary matter, to be unfounded. In addition I do not accept that the period of time from 13 September 2019 onwards constitutes a period of suspension.

With regard to the specifics complaints made by the Complainant, I set out my conclusions/findings below, based on the above general findings:

CA-00033280-001 – Industrial Relations complaint:

In her complaint submission, the Complainant requested a recommendation that the Respondent would engage positively in discussions with a view to securing a reasonable alternative work location.

During the oral hearing, it became apparent that the Respondent was more than willing to engage in such discussion with a view to arriving at a mutually acceptable.

Consequently, I issue a recommendation (as set out below) that such discussions should be entered into by both parties.

Submission made on behalf of the Complainant, in relation to her complaint under the Industrial Relations Act,  requested financial compensation for what were deemed to be breaches of her rights  to fair procedure and natural justice. Based on the findings, as set out above, I find that the Complainant’s claim in this regard is not well founded.

CA-00033280-002 - Payment of Wages complaint:

In her claim under the Payment of Wages Act, the Complainant contended that her removal from employment on 13 September 2019, must be viewed as a period of suspension and, as a result, she should have received payment during this period. It was further contended that this represented the non-payment  of wages properly due to her and must be considered as an unlawful deduction from her wages.

Again, based on the general findings/consideration set out above, I find that the Complainant’s complaint in this regard is not well founded. The period of time post 13 September 2019 did not constitute a period of suspension. The Complainant clearly choose not to accept the offers of alternative hours/locations.

Consequently, I find that the Complainant’s claim, that there was an unlawful deduction from her wages, is not well founded.

Industrial Relations Act

Payment of Wages Act