Complainant

Respondent

Parties

Thomas  Moore

Skyframe Facades Limited (In Liquidation)

Representatives

  Self-Represented

 No Appearance

Act

Complaint Reference No.

Date of Receipt

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

CA-00042107-001

21/01/2021

The Complainant commenced employment with the Respondent on 12th June 2015. The Complainant was a full-time, permanent member of staff, receiving a weekly payment of €880.00.

On 21st January 2021, the Complainant referred the present complaint to the Commission. Herein, he alleged that he was penalised for seeking to exercise his rights under the Terms of Employment (Information) Act, 1994. The Respondent did not submit any defence to this complaint by submission.

A hearing in relation to this matter was convened for and finalised on 3rd September 2021. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing. No issues as to my jurisdiction to hear the present complaint were raised at any stage of the proceedings.

The Complainant stated that both he, and his wife, were long-standing employees of the Respondent. In the months prior to the referral of the Complaint, both he and his wife were in discussion about formalising their terms of employment. Following a period of informal consultation, the managing director approached the Complainant and his wife with a written contract that did not reflect that did not accurately reflect their terms of the employment and these were not accepted by the parties.

The Complainant stated that since the issue regarding contractual terms was raised he suffered a number of instances of penalisation. He stated that an offer of promotion, that had been informally agreed, was withdrawn. The Complainant also stated the he was informed that he would no longer have use of the company vehicle, despite having continuous use of same for a number of years previous. The Complainant also stated that he was routinely called upon to take direction from other workers that had less experience and expertise than him. Finally, the Complainant stated that in the months prior to the lodgement of the present complaint, the managing director would make comments such as “you’re gone” and “you’re finished” to the Complainant. The Complainant stated that the purpose of these actions were to force him from his employment.

In summary, the Complainant stated that since he raised issue with his employer regarding his written terms of employment, he suffered a number of instances of penalisation.  

The Respondent did not attend the hearing or provide any form of written submission in defence of the complaint referred by the Complainant. 

Having reviewed the fie, I am satisfied that the Respondent was aware of the date, time and venue of the hearing. No application was made prior to the hearing to adjourn same, not was any correspondence received following the hearing explaining the Respondent’s non-attendance.

Having regard to the foregoing, the matter proceeded in the absence of the Respondent.

Section 6C(1) of the Terms of Employment (Information) Act 1994 (as amended) provides that

“An employer shall not penalise or threaten penalisation of an 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.”

Penalisation, for the purposes of this section is defined in Section 6C(5) as,

“…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.”

Having regard to the foregoing, in order to be successfully prove penalisation the Complainant will have to satisfy the following tripartite test. Firstly, the Complainant will have to prove that he sought to invoke his rights under the present Act. Secondly, the Complainant will have to demonstrate the unfair treatment as envisaged by Section 6C(5). Finally, the Complainant will have to demonstrate a causal link between the invocation of his rights and the unfair treatment suffered.

In relation to the final point, in the case of  O’Neill v Toni and Guy Blackrock Limited E.L.R. 21 the Labour Court stated that,

“it is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a Complainant 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 Complainant 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 Complainant 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 detriment.”

Regarding the first part of the test, the Complainant’s uncontested evidence was that both he sought to have both his, and his wife’s, terms of employment formalised with the Respondent. I further note his uncontested evidence that these negotiations broke down and the employment relationship became somewhat strained thereafter. In light of the foregoing, it is clear that the Complainant has sought to invoke a right under the Act, as set out in Section 6C(1).

In his evidence the Complainant stated that following this complaint he had an agreed promotion withdrawn, had the use of a company vehicle withdrawn, was effectively demoted in relation to his duties and was subjected to numerous remarks to the effect the his employment was no longer tenable. Having regard to the uncontested evidence of the Complainant, I find that he suffered penalisation within the meaning of Section 6C(5) of the Act (as amended).  

Finally, regarding the causal link between the invocation of his rights and the unfair treatment suffered, from the timeline of event presented by the Complainant, it is clear that the detriment suffered arose solely from the earlier invocation of his rights.

In light of the accumulation of the foregoing points, I find that the Complainant was penalised within the meaning of the Act and consequently, his complaint is well-founded.

I find in favour of the Complainant and consequently his complaint is well founded.

Regarding compensation Section 7(2)D of the Terms of Employment (Information) Act (as amended) provides that,

“…in relation to a complaint of a contravention under section 3 , 4 , 5 , or 6 , and without prejudice to any order made under paragraph (e), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment”

Section 7(2)E provides that

“…in relation to a complaint of a contravention under section 6C , and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration”

In circumstances whereby the present complaint relates to a contravention of Section 6C, Section 7(2) empowers me to award four weeks’ compensation under paragraph D, and a further four weeks under paragraph E.

Having regard to the foregoing, I award the Complainant compensation to the value of €7,040, or the equivalent of 8 weeks’ normal compensation.

Terms of Employment, Penalisation, Compensation