Complainant

Respondent

Anonymised Parties

An Analyst

A Recruitment Company

Representatives

IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00039157-001

13/08/2020

The respondent is an employment agency, and the complainant commenced an assignment with its client on September 10ty, 2018. The contract concluded on September 9th, 2020.

In January, 2020 the complainant had a holiday hours balance but was not able to use it as the respondent was introducing a new leave booking system.

This resulted in the complainant missing an important family event, but he says the respondent made no attempt to help and suggested that the system malfunctioned due to a misspelling by him of his name.

The complainant says that he has have suffered a campaign of victimisation at their hands, and following the Covid-19 lock-down, on March 18th, 2020, when co-workers were facilitated with working from home (WFH), he was told that his living arrangements were not suitable for WFH.

It was suggested that the only way for him to get income was to use the annual leave that was due to him.

He did not do so he thought this might invalidate any future claim.

The respondent has maintained the position that if his living arrangements were to change, he could work from home.

For that reason, he moved, but after providing details of his new address his employer said that that the new location was not suitable and did not qualify for WFH.

They advised that his employment with them would end on September 9th, 2020.

There is nothing wrong with his location; it is a single occupancy bedsit, and there was nothing wrong with his previous address and co-workers whose living arrangements were significantly worse than his were facilitated with WFH.

It is accepted that the complainant had difficulty in booking annual leave when the respondent introduced an online booking system.

The respondent did its best to resolve the issue and the complainant was the only person who experienced any difficulty. It denies that it suggested the misspelling of his own name was the problem.

Regarding the allegation that this caused the complainant to miss an important family event the respondent was at no stage made aware of any such event. Had it been aware it could have facilitated the complainant’s request for leave by doing a manual override of the online booking system

He did not submit any formal grievance about the leave issue.

Regarding the working from home complaint, it was not the respondent which refused the complainant the opportunity to work from home, but the direct employer to whom he was contracted. The respondent was not made aware of this until June when the client made contact to establish whether the complainant’s living arrangements had changed.

The respondent is an employment agency, and it was the client for whom the complainant was working direct which deemed his living arrangements (he was living in a hostel) to be unsuitable.

He then moved to a B&B which was regarded as an insignificant improvement from the point of view of privacy and the standard of confidentiality necessary to work from home. However, this was a decision for the client. The respondent was not aware, for example, that the complainant had not been working.

There are several aspects to the complaint.

In relation to the first of these, which was a simple request to take annual leave, the respondent, however it managed to do so, could not organise to grant the complainant the time off he sought.

In one sense, it is hardly any more relevant that the reason for the complainant’s application was an important family event than if he merely wanted the time off for some lesser purpose, in that, subject to the normal rules that apply a person is entitled to apply for and get annual leave within reason.

But in another sense, it certainly compounds the situation given the poverty of the respondent’s explanation for why it was not done. It claimed that it made ‘continuous attempts to fix the issues.

But the fact remains it did not do so, and it is not credible that had it actually made ‘continuous attempts’ it would have fixed the issue. All it had to do was arrange time off for the complainant. As a result, he was, inexcusably, denied his annual leave, however he wished to spend it.

In relation to the working from home issue, this was not a simple issue of the complainant being denied the right to work from home; in reality he was denied the right to work at all.

The respondent’s client, which refused the option to the complainant, appears to have had good grounds to do so.

But it is extraordinary that the respondent was not aware of the fact that the complainant was not working until it discovered this by accident in June 2020, by which time the complainant had been out of work (it seems) since March 18th.

It then took until June 25th to establish that the client could not accommodate the complainant at its normal workplace.

The next event was when the respondent contacted the complainant on July 30th to establish whether his domestic arrangements had changed to the point where they were suitable for working from home. It appears that, while they had changed, they had not improved to the point required by the employer for working from home.

This is not the main issue.

The respondent said that it was not aware that the complainant had not been working between March and June, which seems extraordinary, even allowing for the pandemic and its impact on workplaces generally.

An employer which does not know that one of its employees is not working, even making all due allowances for the circumstances, is not managing its affairs as an efficient employer should.

Overall, the respondent was cavalier, if not indifferent in its attitude to the respondent.

It may not have been directly responsible for the WFH problem, but it is hard not to see a very serious failure of its duty of care to the complainant.

He is entitled to a remedy for the manner in which he was treated both in respect of the holiday incident and the subsequent failure to engage and monitor his working arrangements and produce a satisfactory outcome.

An issue arose at the hearing regarding the complainant’s failure to process a grievance at the level of the workplace. As determined by the Labour Court and the practise of the Adjudication service this is generally a pre-requisite for the consideration of a claim under this legislation and one rigidly followed by this Adjudicator. 

The complainant said that he had not been aware of the procedures for doing so, and in most cases, this would be a consideration but even when true may not entirely excuse a failure to raise a matter at the level of the workplace.

Specifically, he said that he had not been shown or given the standard document or handbook containing the grievance procedures

The respondent produced a document which purported to show that the complainant had been given such a document and which, it said, bore his signature.

The complainant, who had not been given sight of the evidence before the hearing, (the reasons offered by the respondent for this were entirely unacceptable) and he was afforded the opportunity to confirm or otherwise whether the signature alleged to be his was in fact so.

He hotly disputed that the signature which was submitted was his and he submitted samples of his signature which supported this.

On balance, it appears as if the signature submitted by the respondent may have been one used by the complainant.

However, I have some doubts on this score and in any event, it would be exceptionally harsh to punish a complainant initially denied annual leave by the inaction (and I would again say indifference) of his employer and deny him a remedy in the circumstances set out here.

Throughout the matter, including the hearing and subsequently, the respondent seemed to be more concerned with finding ways to evade its responsibilities to the complainant than with addressing the genuine issues he raised and resolving them.

Specifically, the inexplicable ignorance of the respondent as to the plight of one of its employees and that he had lost his employment was extraordinary.

In these exceptional circumstances and on these very particular facts, including that the complainant is no longer employed by the respondent it would be totally inequitable to apply the strict rule requiring local processing before offering a remedy at the WRC.

I further consider that the circumstances of the pandemic and his lay off from work provide sufficient extenuating circumstances to exceptionally depart from that rule, which remains the settled jurisprudence on this matter.

Accordingly, I find for the complainant.

His treatment by the respondent fell unacceptably below what one would expect from a responsible employer.

 My recommendation is below.

I uphold complaint CA-00039157-001 and recommend the payment of compensation of €7,500.00 to the complainant for the breach of his rights.

Breach of rights, compensation.