ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035331
Parties:
| Complainant | Respondent |
Parties | Javier Fernandez Torres | Sitting Tree Ltd Harbour Bar |
| Complainant | Respondent |
Parties | Javier Fernandez Torres | Sitting Tree Ltd Harbour Bar |
Representatives | Self | William Crean |
Complaint(s):
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-00046495-001 | 03/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00046495-002 | 03/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00046495-003 | 03/10/2021 |
Date of Adjudication Hearing: 27/07/2022
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
The hearing was held on two dates on the 27th of July 2022 and 12th of April 2022 by remote platform.
The Complainant and Respondent arising from the direct conflict in evidence were required to take an Oath/Affirmation and the Interpreter also took the Oath who was translating for the Complainant. Each party was offered the opportunity to cross examine.
The hearing was reconvened so that the respondent would not be taken by surprise as on the first day of hearing the Respondent was not ready to reply to a complaint of penalisation.
At the end of the hearing both parties confirmed to the Adjudicator that their case had been fairly heard.
Background:
The Respondent manager who represented the company, stated that the business was a wet Public House. As is common knowledge arising from Covid Public Health regulations public houses were closed for a very lengthy time. When they opened most pubs experience significant challenges to re-open and the focus was on staying open and ensuring that customers were safe. Pubs had been closed for such a long-time stock challenges and ordering challenges arose. The Complainant has brought this complaint stating that the employer failed to provide him with adequate notice when changing his shift pattern and was allocating shifts based solely on the manager’s discretion. |
Preliminary Matter:
Both the Complainant and Respondent representative are legally qualified.
The Complainant has brought these complaints under the section 7 of the Terms of Employment (Information) Act, 1994.
Section 7 relates to a referral of the complaints to the Adjudication Officer. The Respondent Employer stated that he could only be expected to reply to the complaints that the were ticked on the complaint form. He expressed this view when asked to address the matter of penalisation as no tick of the penalisation complaint had been made. He also queried if the complaint regarding the obligation to provide a written statement within 5 days was in time.
It is very clear from the complainant’s form and supplementary submissions that he believes that he has been penalised. That matter was raised at the first day of hearing and a second day of hearing was allowed so that the Respondent could address that allegation.
The Complainant commenced his employment on 7th of June 2021 and should have received his terms on the 6th of August 2021. He did receive information about his terms of employment on the 3rd of September 2021.
At the time of the contract ending on or about the 24th of September 2021, the Complainant was working two shifts and earning €192 per week. The complaint form was lodged on the 3rd of October 2021 and subsequently amended to reflect an allegation of penalisation.
On the 24th of January 2022 the Complainant writes to the WRC and stated that his contract had been terminated arising from seeking conciliation at the WRC.
I am satisfied that the Complainant amended his form on time. I refer to the commentary on the relevant case law concerning amending the WRC complaint form in Employment Law 3rd Ed, Bloomsbury:
Amendment of complaint form
[28.11]
The circumstances in which the details on a complaint form can be amended were fully considered by the Labour Court in An Employer v A Worker. 28 In this case, the complainant alleged that she was discriminated against in the course of applying for a position with the respondent company. The company contended that she had not applied for a job but for a self-funded training programme. The Labour Court was satisfied that, if the interview following which she was not selected was not directed at access to employment within s 8(1)(a) of the Employment Equality Act 1998, it was ‘most undoubtedly directed at vocational training’ within the meaning of s 12(2). Having regard to the observations of McGovern J in County Louth VEC v Equality Tribunal 29 that the complaint form was only intended to set out in broad outline the nature of the complaint and that it was permissible to amend a claim set out therein ‘so long as the general nature of the complaint...remains the same’, the Court was satisfied that the complaint form could be legitimately amended to reflect the proper construction of the claim.
In Ballarat Clothing Ltd v Aziz, 30 the complainant (who was not legally trained or advised) incorrectly filled in the complaint form naming the individuals who were directors of the company, but not the company itself, as the employer. The Equality Tribunal dismissed the complaint under s 77A (1) of the 1998 Act as being ‘frivolous, vexatious or misconceived’. The complainant appealed to the Labour Court and the company submitted that the Court had no authority to substitute it for the two named directors.
The Court noted that the company acknowledged that it was aware from the commencement of the case that an error had been made and that it would suffer no prejudice were the appeal to be allowed. In these circumstances, the Court felt that, not to allow the appeal for such a technical reason would be a ‘grossly disproportionate response’.
In Department of Foreign Affairs v Cullen, 31 however, the Labour Court said that an amendment would not be allowed if its effect would be to permit the complainant to pursue a complaint that would otherwise be excluded by s 77(5) of the 1998 as being statute barred.
The complaint regarding a failure to provide a statement within 5 days is also in time as what is central to dispute relates to information about what normal weekly hours and daily hours are. In that context, the broad narrative in the complaint form lodged with the WRC in October 2021 is consistent with that matter also being presented and heard.
At the hearing it became clear that the dispute was about not receiving information on time about terms and conditions of employment, a belief that the Complainant was penalised for bringing the complaint under the Information Act and finally that hours of work were being changed without adequate notice and consultation.
The Complainant is seeking to be reinstated to his previous position.
The original complaint form stated that
My name is Javier Fernandez Torres and I am currently working as a bartender for the company "Sitting Tree lltd." in Arklow Co.Wicklow. My purposes to request this service are 1. To recover my shift in the Harbour Bar in Arklow Friday 16-24h or closing time, and Saturday 13-16, 18-23 or 16.00-23.30 2. To make "Sitting Tree ltd."commit to communicate any change in the planning schedule to any employee at least 10 days in advance. Please find attached the last letter referred by the employer and the countless communications …..
The complaints while brought under the Information Act would also appear to involve an industrial relations trade dispute and notification regarding shift change.
An Adjudicator can assist a lay litigant to communicate their case but not to make their case having regard to the obligation to be impartial to both parties. In this instance both the Respondent and Complainant possess legal qualifications. It is appropriate to allow the complaint to be amended to include penalisation and failure to provide a written statement after 5 days. However, there are limitations to what the Information Act can rectify since that has been specifically relied upon by the Complainant, the complaints are limited to be heard under that head of legislation.
Summary of Complainant’s Case:
The Complainant is looking to be reinstated believing that he was penalised by his employer for complaining about the lack of notice concerning his shift pattern. He stated that he did not receive the required information when starting his employment and then the more comprehensive statement of terms within 2 months of commencing his employment.
The Complainant believes that his employer took a dislike to him because he was asserting his legal rights. There were incidents where his employer had wrongly accused him of being difficult and inflexible and not open with him. One incident that his Employer cites against him related to helping a colleague at the Pub while certified sick. One day he went to the Pub, not on scheduled shift and voluntarily helped a colleague who was under too much pressure due to staff shortages. He believes that incident created an impression that he was misrepresenting his illness to his employer. Which was not so. |
Summary of Respondent’s Case:
The Respondent manages staff and assists in the running of the Public House which is referred to as a wet pub. The Respondent stated that while a delay did take place in providing a contract detailing the main terms of employment that primarily arose due to Covid pressures regarding the reopening of Public Houses after a very lengthy closure. The Respondent accepts that it did not meet the timeline as set down in the legislation; however, there were exceptional reasons for that breach, and it was always the intent to provide a contract. A contract was provided while somewhat late. The Complainant did receive a payslip which detailed his main terms within a week of joining the business. The employer stated that the Complainant’s employment was terminated during his probationary period. He stated that he had facilitated the Complainant on numerous occasions both regarding the number of hours he worked during the week and the days of the week. There was a lot of pressure in managing a Pub having regard to the Covid Health Regulations and this meant that staff had to be flexible. It became apparent after a few weeks that the Complainant was very fixed on what hours he could work and at what time he would end his shift. Based on the restricted hours such as not staying until after closing time on Saturday, the Manager decided that the Complainant was not a good fit for the business and ended his contract during the probationary period. |
Findings and Conclusions:
The fact that information as set out in the legislation was not provided on time is not in dispute. What is in dispute is the reasonableness or otherwise for the delay. On balance I find that there were genuine operational reasons why contract provisions were not provided on time arising from the Pandemic and the extreme business pressure that such companies and family pubs faced arising from Covid Public Health Regulations. The law requires that the employer shall provide the following within 5 days of commencing employment and after 2 months, which is detailed at section 3 of the of the Terms of Employment (Information) Act, 1994: (1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say: (a) the full names of the employer and the employee; (b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014); (c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; (d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000; (e) the number of hours which the employer reasonably expects the employee to work— (i) per normal working day, and (ii) per normal working week. This was not complied with, and the absence of that information arguably has given rise to the dispute between the parties around the contractual obligations of both parties. The employee believing that the employer is abusing his position by changing shift patterns at will and the employer believing that this employee is difficult and intransigent. The second provision states that: 3.—(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say— (a) (b) (c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places, (d) the title of the job or nature of the work for which the employee is employed, (e) the date of commencement of the employee’s contract of employment, (f) (fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, (ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,] (h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, (i) any terms or conditions relating to hours of work (including overtime), (j) any terms or conditions relating to paid leave (other than paid sick leave) (k) any terms or conditions relating to— (i) incapacity for work due to sickness or injury and paid sick leave, and (ii) pensions and pension schemes, (l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, (m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made. Section 7 provides that: (1A) An employee shall not be entitled to present a complaint under Part 4 of the Workplace Relations Act 2015 in respect of a contravention of section 3(1A)— (a) unless the employee has been in the continuous service of the employer for more than 1 month, or (b) if the employer concerned has been prosecuted for an offence under this Act in relation to the same contravention. (2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of [sections 3, 4, 5, 6 or 6C] shall do one or more of the following, namely— (a) declare that the complaint was or, as the case may be, was not well founded, (b) either— (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer undersection 3, 4, 5, 6 or 6C, or (ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer, (c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer, (d) In relation to a complaint of a contravention under change 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 calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.] (e) 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 respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.] And section 5 requires that the employer shall: Notification of changes. 5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— (a) 1 month after the change takes effect, or (b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure. (2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute , other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4. The Hours of Work clause in the contract states: The current opening hours of the pub are 4pm to 12 am Monday to Friday and 1pm to 12am Saturday and Sunday. The opening hours of the pub may change and at the discretion of the management subject to the demands of the business operations. This may impact the hours you will be asked to work. Your normal hours of work will be assigned based on the weekly work schedule. Hours may change week to week due to other staff availability, sickness or increased/decreased demands. This clause is not in compliance with section 3 of the Information Act that requires: (e) the number of hours which the employer reasonably expects the employee to work— (i) per normal working day, and (ii) per normal working week. There are factual circumstances relevant to this case concerning the employee’s request for a change in working hours that were facilitated. This dispute does centre around the lack of clarity around hours of work that have not been complied with as set out in the Act. The complaints relating to the failure to provide the information as set out in the Act within 5 working days of commencing employment and thereafter a more complete statement of pertinent information after 2 months are well founded. CA-00046495-001-5-day statement and specific terms: The Act provides for compensation up to 4 weeks for breaching the obligation to provide the information within the prescribed time limits. Allowing for the mitigating circumstances concerning Covid, this may have been reduced. However, having regard to the fact that the contract is silent on specifics relating to the number of hours which an employee can reasonably be expected to work in a working day and normal working week, I award 4 weeks in compensation for the failure to comply with what must be in a statement. I also require that the employer comply with the Act’s provisions as detailed concerning specifying the hours of work that the employee is reasonably expected to work in a normal week and normal working day. I award an amount based on 4 weeks x €192=€768. CA-00046495-002 Statement after 2 months: The employer is substantially in compliance with what the Act requires after 2 months, apart from the hours of work details concerning a normal working week and day. I have addressed that matter in CA-00046495-001. CA-00046495-03 Penalisation: The Complainant seeks to be reinstated; however, that is not a provision contained in this Act. The case law while made in the context of the Safety, Health and Welfare at Work Act 2005 is relevant concerning the test of penalisation. Penalisation in case law has been described to have occurred where there is a direct causal link between making a complaint and a detriment that followed because of that complaint [Murphy and Regan Employment Law 2nd edition Bloomsbury 2017]: [5.54] The Labour Court has made it clear that there is a distinction between a detriment suffered by an employee because of an employer’s failure to fulfil a duty under the 2005 Act, and a detriment amounting to penalisation under the 2005 Act, as set out above. In the case of Patrick Kelly t/a Western Insulation v Girdsius 107 the employee’s claim for penalisation failed as he was unable to show that the detriment that he suffered was a result of, or was in retaliation for, his having made a complaint under the 2005 Act. He was a Lithuanian employee who was injured when he fell off a ladder at work that was not properly secured. He claimed that he had limited English and that he did not receive any health and safety training at work in a language that he could understand. He took a penalisation claim against his employer on the basis that this failure operated to his detriment. The Labour Court dismissed his claim due to the complete absence of a causal connection between the alleged shortcoming on the part of the employer and any act on the part of the employee. Similarly, the Labour Court, in the case of Margaret Bailey t/a Finesse Beauty Salon v Farrell, 108 found that the circumstances in which liability will be imposed are ‘very limited and circumscribed’ and that the 2005 Act ‘only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer as regards any matter relating to safety, health and welfare at work. Penalisation of an employee for other reasons does not come within the scope of the [Act]’. [5.55] In contrast, in the Labour Court case of Toni & Guy Blackrock Ltd v Paul O’Neill, 109 the claimant successfully appealed a previous decision that he had not been unfairly dismissed by reason of penalisation under s 27 of the 2005 Act. Mr O’Neill alleged that he had made complaints about the poor quality gloves that had been provided by his employer for use when handling colouring agents and that his complaints were ignored. He also brought the matter to the attention of the HSA, and informed his employer that he had done so. He ultimately purchased his own gloves for use at work. He claimed that his employer’s attitude towards him changed after these complaints had been made. He was then dismissed for alleged poor time keeping and theft. The Labour Court found in his favour, referencing the causal link between his complaints under the 2005 Act and the treatment that he was then subjected to, which was absent in the two cases cited above. He was awarded €20,000 by way of compensation. In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test: “The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant 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 Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.” I note that the Court has stated that where there is more than one causal factor in the chain of events leading up to the dismissal the commission of the protected act must be an operative cause. The Complainant was informed that his employment would be terminated on or about the 24th of September 2021 during his probationary period. The complaint form was lodged on the 3rd of October 2021. On balance the complainant was not in a position to work as flexibly as the manager wished. The complainant was on probation. The manager also believed that the employee was not a good fit for his business. I am minded of the recent decision of the Court of Appeal in Donal O’Donovan v Over-C-Technology Limited [2021] IECA 37, affirming the right of an employer to dismiss without reason during a probationary period subject to the right of fair procedures concerning an allegation of misconduct. In this case there is no allegation of misconduct, the termination arose according to the manager because of fit and flexibility relating to hours of work. The employee believes that it occurred when he referred the matter to conciliation and that action gave rise to a retaliation. The matter of the hours of work and flexibility were a matter of dispute between the parties. On balance it was a factor in the dismissal; however, so was the employee’s limited availability to work only on certain days and up to a certain time. As there is no one operating cause that predominated in making the decision to dismiss during probation, I cannot find in favour of the employee concerning the complaint of penalisation. This complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00046495-001-5-day statement and specific terms: This complaint is well founded. I award the complainant an amount based on 4 weeks x €192 weekly pay on termination=€768. The Act provides for compensation up to 4 weeks for breaching the obligation to provide the information within the prescribed time limits. Allowing for the mitigating circumstances concerning Covid, this may have been reduced. However, having regard to the fact that the contract is silent on specifics relating to the number of hours which an employee can reasonably be expected to work in a working day and normal working week, I award 4 weeks in compensation for the failure to comply with what must be in a statement. I also require that the employer comply with the Act’s provisions as detailed concerning specifying the hours of work that the employee is reasonably expected to work in a normal week and normal working day. CA-00046495-002 Statement after 2 months: This complaint is well founded. The employer is substantially in compliance with what the Act requires after 2 months, apart from the hours of work details concerning a normal working week and day. I have addressed that matter in CA-00046495-001 and award no further compensation concerning this complaint. CA-00046495-003 Penalisation: I am minded of the recent decision of the Court of Appeal in Donal O’Donovan v Over-C-Technology Limited [2021] IECA 37, affirming the right of an employer to dismiss without reason during a probationary period subject to the right of fair procedures concerning an allegation of misconduct. In this case there is no allegation of misconduct, the termination arose according to the manager because of fit and flexibility relating to hours of work. The employee believes that it occurred when he referred the matter to conciliation and that action gave rise to a retaliation. The matter of the hours of work and flexibility were a matter of dispute between the parties. On balance it was a factor in the dismissal; however, so was the employees limited availability to work only on certain days and up to a certain time. As there is no one operating cause that predominated that gave rise to the dismissal during the probationary period, I cannot find in favour of the employee concerning the complaint of penalisation. This complaint is not well founded. |
Dated: 10th August 2022
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Statements-Hours of Work-Penalisation |