ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031822
Parties:
| Complainant | Respondent |
Parties | Aivis Fadejevs | Ktech Security |
| Complainant | Respondent |
Representatives | Self- Represented | Conor O’Gorman of IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00042161-001 | 26/01/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00042161-002 | 26/01/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00042161-004 | 26/01/2021 |
Date of Adjudication Hearing: 16/09/2021
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015; Section 79 of the Employment Equality Acts, 1998 – 2015 and Section 6 of the Payment of Wages Act, 1991 following the referral of the Complaints to me by the Director General, I inquired into the Complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the Complaints.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation was administered to the first witness (the Complainant) and a Religious Oath to the second witness, a Respondent Manager
Full Cross Examination took place.
Background:
The issues in contention concern a Complaint that the Employee did not receive proper paid Holidays, did not receive proper levels of paid overtime, was subject to discrimination on grounds of Civil Status and was subject to a Discriminatory dismissal. The Complainant was first employed on the 1st August 2011 and, at the date of the hearing, remains in employment with the Respondent. The rate of pay was € €2,600 gross per month for a working week that could reach 65 hours. |
1: Opening Issues / Status of Complaints.
The Respondent stated that the entire Complaint was misconceived. The Complainant had only recently recovered from a serious medical issue. The Complaint had been lodged while the Complainant was out on long term absence. It was open to question whether or not the Complainant was properly fit, at the relevant time, to lodge his Complaint.
The Respondent Managers were most anxious to resolve, directly, any issues the Complainant might have.
In discussions facilitated by the Adjudication Officer the first listed Complaint - seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00042161-001 was withdrawn.
It was accepted that the second Complaint, Minimum Notice under Section 6 of the Payment of Wages Act, 1991 - CA-00042161-002 was misconceived as the Employment still continued.
The third Complaint under Section 77 of the Employment Equality Act, 1998 - CA-00042161-004 was also misconceived as no discrimination under the Civil Status grounds had taken place and no discriminatory dismissal had taken place as the Employment continued.
2: Summary of Complainant’s Case:
In relation to all Complaints, CA- 00042161-001, 00042161-0012 and 00042161-004 the Complainant maintained that the Managers of the Respondent had effectively treated him without any proper personal respect in relation to any work queries he had raised. Their dismissive attitude towards him had caused him to have a break down. |
3: Summary of Respondent’s Case:
In relation to all Complaints, CA- 00042161-001, 00042161-0012 and 00042161-004 the Respondent maintained that they were misconceived. The Complainant had suffered a serious period of ill health. The had kept his job open for him and he had now returned to work. He had been a very good employee since 2011 and it was unfortunate that he had a lengthy bout of ill health during 2000. If he had any issues in regard to Overtime, Working Hours or general employment matters they were most anxious to resolve these matters directly with him. |
4: Findings and Conclusions:
It was clear, from the oral evidence of the Parties and as discussed above, that the Complaints, CA- 00042161-001, 00042161-0012 and 00042161-004 were Misconceived. The Complainant had suffered a both of severe ill health and was now only still recovering. Accordingly, the Complaints are Not Well Founded. |
5: Decision:
Section 41 of the Workplace Relations Act 2015, Section 79 of the Employment Equality Acts, 1998 – 2015 and Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the Complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
5:1 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA -00042161-001
This Complaint is Not Well Founded.
5:2 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA -00042161-002
This Complaint is Not Well Founded.
5:3 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998. CA-00000042161-004
No prima facie case of Discrimination under Civil Status grounds or Discriminatory Dismissal was made. This Complaint is Not Well Founded.
Dated: 9th November 2021
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Misconceived complaints. No prima facie case. |