Complainant

Respondent

Parties

David  Rooney

Starrus ECO Holdings Ltd Panda & Greenstar

Representatives

  self

Jason Murray, BL instructed by Rory Muldowney, Solicitor.

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-00039565-001

02/09/2020

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

CA-00039565-002

02/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977

CA-00039565-003

05/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977

CA-00039565-004

05/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00039565-005

04/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00039565-006

04/02/2021

The complainant is employed as a weighbridge operator and, as a consequence of a TUPE, he is continuous employment with the respondent since 01/03/1978.  He is paid €20 per hour and works 9.5 hours per day, five days per week.  As a result of a number of issues in 2020 the complainant is on sick leave since August 2020.  These issues gave rise to the complaints which were submitted to the Workplace Relations Commission in September 2020 and February 2021. The complainant submitted three complaint forms to the Workplace Relations Commission (WRC) and the following is clarification of the order and sequence of the complaints received:

a)      Form 1:  Date Received by WRC: 02/09/2020.  This was updated by the complainant on 12/11/2020.  The reference number for this complaint is CA-00039565-001.

b)     Form 2:  Date received by WRC: 05/01/2021.   The reference numbers for these two complaints are CA-00039565-002 and CA-00039565-003.

c)      Form 3:  Date received by WRC: 04/02/2021.  The reference numbers for these two complaints are CA-00039565-004, CA-00039565-005 and CA-00039565-006.

The respondent raised a number of preliminary matters in relation to the six complaints submitted by the complainant.

There is a total of six complaints submitted.  The first complaint (CA-00039565-001) is the only claim that is properly before the WRC.

The WRC has no jurisdiction to hear second complaint (CA-00039565-002) in relation to the unfair dismissal complaint as the complainant is still an employee of the respondent.

In relation to the two claims seeking adjudication under the Organisation of Working Time Act, (CA-00039565-003 and  CA-00039565-004 these relate to illness benefit and public holidays and which the employee retains an entitlement as he is still an employee.

The two claims seeking adjudication under the Employment Equality Act, 1998 (CA-00039565-005 and  CA-00039565-005 are well out of time and no application was submitted in relation to seeking an extension of this time frame.

The complainant informed the hearing that he could not afford legal representation and that this was the first time he had any dealings with the Workplace Relations Commission.  In that context he was not familiar with the legal requirements and asked that he be granted some leeway in relation to hearing his complaints.

The complainant was informed by the Adjudication Officer that he would be afforded leeway in relation to presenting his case, but the Adjudication Officer had no jurisdiction amend any timelines or timeline extensions  as set out in the various acts in relation to his complaints.

In relation to the complaint of unfair dismissal the complainant confirmed that he was not dismissed by the respondent and also that he had not submitted any resignation.  He confirmed his understanding that he remained an employee of the respondent but expressed the view that he did not envisage any return to work.  He confirmed that he brought his complaints to the WRC as he did not believe that he had any other process to deal with them.

The complainant outlined that he was submitted the two complainants in relation to holiday pay and public holiday pay as he had not heard anything from the respondent since his last pay date in August 2020.  No one contacted him in relation to this wellbeing.

The two complaints in relation to employment equality are related to his age and disability.  He outlined that a pay increase was given to younger employees of the same grade and role, but he did not receive the same increase and he did not receive any explanation from the respondent in relation to his many queries.  His complaint in relation to disability relates to the effect that the various issues had on him and which was diagnosed when he went on sick leave.

I uphold the respondent’s objection in relation to the unfair dismissal complaint.  It is clear that the complainant remains an employee and, in that context, I have no jurisdiction to hear this complaint.

By virtue of this decision objection by the respondent to the two complaints in relation to the Organisation of Working Time Act  these objections are also upheld.

I have decided to deal further with each complaint in my findings and conclusions so as to provide greater clarity on my decisions.

CA-00039565-001:  The complainant was asked by the respondent to take a 5% pay reduction from 30/03/2020 until 30/06/2020.  The rationale behind this was linked with implications of Covid-19 on the business.  The complainant refused to consent to this reduction.  On 10/04/2020 he was then placed on a three-day week and submits that the deduction of two days pay for a period of three weeks was unlawful and is seeking an amount of approximately €1,710.   The complainant also submits that the respondent failed to pay him sick pay even though he submitted sick certificates.

CA-00039565-002: The complainant submits that he was constructively dismissed.  He outlined a number of grievances and concerns he had with the respondent which were not addressed.  As noted in the preliminary point raised by the respondent the complainant remains an employee as he was never dismissed or submitted a resignation.  At the hearing the complainant confirmed that he was neither dismissed or resigned. 

CA-00039565-003:  The complainant submits that he has not received holiday pay for the period up to 11th August 2020.

CA-00039565-004:  The complainant submits that the has not been paid his public holiday entitlements.

CA-00039565-005:  The complainant submits that he was discriminated, harassed and victimised onthe ground of age in relation to his conditions. The example submitted is that colleagues who were younger than him received a pay increase and he was excluded from this increase due to his age.

CA-00039565-006:  The complainant submits that he was discriminated against on the ground of disability in relation to his conditions of employment.  He became ill and following a diagnoses by his GP he was deemed to be suffering from a mental health disability and has undergone counselling.  It was submitted by the complainant that this disability is associated with his unresolved workplace concerns which continue to prevent him returning to work.  The complainant also submits that the respondent failed to “act with prudence towards my illness and mental health condition” and this amounts to direct discrimination.

The complainant submitted that he felt that his complaints were well founded.  He worked for the respondent for almost 43 years and he had hoped to finish his career on reaching retirement and to do so with good memories of his time working for the respondent since 1978. 

The complainant submits that the respondent treated him callously, unfairly and ignored his reasonable requests and concerns.  He further submits that the respondent blatantly discriminated against him on the grounds of age and disability.

CA-00039565-001:  The respondent submits that there was no reduction in the complainants salary.  The reduction in the days was put in place at the time of Covid-19 commenced and to mitigate the impact on the business.  There were other employees also affected.  Those who did not consent to the temporary pay reduction were placed on a reduced working week for a period of three weeks.  The respondent has discretion in relation to the hours worked which may be changed depending on the business needs.  There was no guarantee that the weekly hours would remain in place.

CA-00039565-002:  The respondent submits that the complainant was not dismissed and remains a valued employee of the respondent.  As noted in the preliminary point above the respondent submits that the WRC has no jurisdiction to hear the complaint in relation to the unfair dismissal complaint as the complainant is still an employee of the respondent.

CA-00039565-003:  The respondent submits that the complainant is legally entitled to holiday pay and this can be paid when he resumes duty.

CA-00039565-004:  The respondent accepts that the complainant has an entitlement to public holidays and he has not received the benefit of those as he remains on sick leave.  This will be paid when he resumes duty.

CA-00039565-005:  The respondent submits that the pay increase referred to by the complainant did not, as a matter of law, concern him.  The respondent clarified the rationale in relation to this pay increase.   Other employees who were paid below the industry average wage but above the national minimum wage received the increase align them to the industry average norm.  This did not apply to the complainant as he was in receipt of payment above the industry average norm.

It was also submitted on behalf of the respondent that this complaint is also out of time.  The event, or act, complained of occurred in November/December 2019 and the complainant submitted his complaint to the WRC on 01/02/2021.

CA-00039565-006:    The respondent submits that at no stage did the complainant provide any evidence that he had a disability.  His diagnoses occurred after he went on sick leave and he has not returned to duty since.  There was no prima facia evidence on which a presumption of discrimination could be made. The respondent also submits that the complainant submitted this complaint to the WRC on 01/02/2021 which is outside the time limit in the Act.

It was submitted on behalf of the respondent that the complainant is a long-standing employee and remains a valued member of staff.  The respondent awaits his return to the workplace.  The personal grievances submitted by the complainant are not well founded and must fail as a matter of law.  The respondent relies on both the preliminary and substantive submissions in support of its position.

It is clear that this is a difficult case for the complainant. He has worked for the respondent for almost 43 years and is due to retire in the near future.  By his own acknowledgement he was not familiar with employment law matters and could not afford legal representation as he is on sick leave.  The respondent confirms that the complainant is a valued long-term employee and his return to the workplace is awaited.

I find that that the complainant remains employed by the respondent and that he is currently on long-term sick leave.  I have reviewed the complaints and taken account of the submissions received and the evidence provided at the hearing.  The conclusions in relation to each complaint are outlined below:

CA-00039565-001:  I find that the respondent exercised its discretion to change the hours of work to align with the business needs which were impacted as a result of Covid-19.  I find that this complaint is not well founded.

CA-00039565-002:  I find that I do no jurisdiction to hear the complaint in relation to the unfair dismissal complaint as the complainant is still an employee of the respondent.

CA-00039565-003:  In view of the finding at CA-00039565-002 above this complaint is not well founded as the complainant is still employed by the respondent.

CA-00039565-004:  In view of the finding at CA-00039565-002 above this complaint is not well founded as the complainant is still employed by the respondent.

CA-00039565-005:  An Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates, or such other date as may be set out in Section 41(6) of the WRC act of 2015.

Section 77 of the Employment Equality Act States:

“(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this part shall have affect.”

 I find that this complaint is outside the six-month time period laid down in the Act. The event, or act, complained of occurred in November/December 2019 and the complainant submitted his complaint to the WRC on 01/02/2021. Notwithstanding that the time frame for an extension has also been exhausted, no application for an extension was submitted.

CA-00039565-006:  This complaint is also outside the six-month time period laid down in the act. 

CA-00039565-001:  I find that this complaint is not well founded.

CA-00039565-002: I find that I do no jurisdiction to hear the complaint in relation to the unfair dismissal complaint as the complainant is still an employee of the respondent.

CA-00039565-003:   I find that this complaint is not well-founded.

CA-00039565-004:  I find that this complaint is not well-founded.

CA-00039565-005:  I find that I do not have jurisdiction to hear this complaint as it is outside the time limit.

CA-00039565-006:   I find that I do not have jurisdiction  to hear this complaint as it is outside the time limit.

Unfair dismissal.  Discrimination.