ADJUDICATION OFFICER DECISIONS & RECOMMENDATION
Adjudication Reference: ADJ-00026423
Parties:
| Complainant | Respondent |
Anonymised Parties | A chef | A catering provider |
Representatives | Self-represented | IBEC |
Complaints and disputes:
Act | Complaint Reference No. | Date of Receipt |
Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act | CA-00033696-001 | 09/01/2020 |
Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act | CA-00033696-002 | 09/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00033696-003 | 09/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00033696-004 | 09/01/2020 |
Dates of Adjudication Hearing: 12/5/2021 and 09/02/2022
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 9th January 2020, the complainant submitted complaints pursuant to the Safety, Health and Welfare at Work Act and the Terms of Employment (Information) Act as well as two disputes pursuant to the Industrial Relations Act. The complaints were heard at adjudication on the 12th May 2021 and the 9th February 2022. The hearing took place remotely and the witnesses were affirmed.
The complainant attended in person and the respondent was represented by Aleksandra Tiilikainen, IBEC and nine witnesses gave evidence.
These complaints were heard along with the complainant’s unfair dismissal claim against the respondent, addressed in ADJ-00028796.
In accordance with section 41 of the Workplace Relations Act, 2015and section 13 of the Industrial Relations Act following the referral of the complaints and disputes to me by the Director General, I inquired into the complaints and disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and disputes.
Background:
The complainant worked for the respondent as a chef between 2018 and 2020. He was paid €540 per week and was assigned to a client site. The complainant asserts that he was penalised for raising health and safety issues and that there was a contravention of the Terms of Employment (Information) Act. The respondent denies the claims. |
Summary of Complainant’s Case:
The evidence and submissions of the complainant are set out in ADJ-00028796. |
Summary of Respondent’s Case:
The evidence and submissions of the respondent are set out in ADJ-00028796. |
Findings and Conclusions:
CA-00033693-001 and CA-00033693-002 These are disputes pursuant to the Industrial Relations Act regarding bullying and harassment. The complainant outlined that he was bullied by a named manager, including being followed to his car. The complainant raised grievances about the manager’s behaviour. As stated by the respondent, the purpose of an industrial relations referral is not to re-investigate a grievance or bullying complaint, but to ensure that the employer followed the relevant procedures and any Code of Practice. There can be no doubt in this case that the employer investigated and decided each grievance in accordance with its policies. While the complainant does not agree with the outcome, including after appeal, the respondent implemented those procedures. It follows that I am not able to make a recommendation in the complainant’s favour in these disputes. CA-00033693-003 This is a complaint pursuant to the Safety, Health and Welfare at Work Act. An employee can bring a complaint of penalisation to the Workplace Relations Commission. This is for detriment caused to the employee for raising an issue of health and safety. The burden of proof is the ‘but for’ test, i.e. lower than the normal burden of proof in civil proceedings. It is for the complainant to show that reporting the health and safety issue was an operative cause in the detriment. The complaint of penalisation must be made within six months of the date of contravention, extendable to 12 months with reasonable cause. In evidence, the complainant identified that the health and safety issues related to the glasses and the shoes. The complainant was entirely correct to raise these issues and to highlight that he could not wear the safety glasses provided as they would not fit over his prescription glasses. The boots did not have a toe-cap. The complainant was injured at work and the arising personal injury proceedings were resolved. While these are serious issues, there is insufficient evidence to show that these health and safety issues were in any way related to the acts of detriment. The complainant’s employment ended for specific reasons unrelated to these health and safety issues. The client ended the complainant’s access to the facility for a reason unrelated to these health and safety issues. The complainant raised grievances about his interactions with a named manager and they were addressed by the respondent. While the complainant was not satisfied with the conclusion of these processes, this outcome was unrelated to the health and safety issues. For the above reasons, I find that the complaint of penalisation is not well-founded. CA-00033693-004 This is a complaint pursuant to the Terms of Employment (Information) Act regarding the correctness of the statement provided to the complainant at the outset of his employment. The complainant outlined that his contract of employment stated that he was on a flexible contract of 10 hours work per week. He informed the respondent that this was not accurate as he had always worked 40 hours per week. He asked that this be corrected, and it was not corrected. The respondent accepted that the complainant worked 40 hours per week and that there had been an omission in sending out a letter to confirm the complainant’s hours. It submitted that the complainant had incurred no loss in not being provided with a contract that reflected these hours. It relied on Irish Water v Hall TED161. The Terms of Employment (Information) Act transposes the Written Terms Directive 91/533/EC. The central facet of the Directive and the transposing legislation is transparency in the employment relationship, so that the employee is provided with the key information. Weekly hours of work is certainly one such piece of key information (subsections (i) in section 3(1) and Article 2(1) of the Directive). As noted by the Labour Court in 2016, the claimant in Irish Water v Hall was in receipt of remuneration (€78,000 plus a 14% bonus) and the most significant omissions in the statement related to the terms citing the National Minimum Wage Act. The national minimum wage terms in section 3 do not have a Directive underpinning, but also the claimant’s income was far above the national minimum wage (then €9.15 per hour in 2016). An employee’s working hours is of a completely different order, especially when they challenged the inaccuracy in the statement. The complainant had a statutory entitlement to a statement citing the correct working hours. The contravention is not having the correct statement. The complainant does not have to show consequential loss arising from the contravention. Redress is awarded on foot of the contravention, rather than on foot of some other, consequential loss. To require some further loss would severely undermine the protections offered by the Terms of Employment (Information) Act. The complainant was entitled to a statement of terms that reflected his employment, in this case his correct working hours. The contract does not cite the correct working hours, leading there to be a contravention of the Terms of Employment (Information) Act. Given the importance to an employee of their working hours, I award the complainant redress of €2,160. |
Decisions and recommendations:
Section 13 of the Industrial Relations Act requires that I make a recommendation on the merits of the dispute.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00033696-001 For the above reasons, I do not make a recommendation in the worker’s favour. CA-00033696-002 For the above reasons, I do not make a recommendation in the worker’s favour. CA-00033696-003 I decide that this complaint pursuant to the Safety, Health and Welfare at Work Act is not well-founded. CA-00033696-004 I decide that this complaint pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay €2,160 to the complainant as redress. |
Dated: 12/12/2022
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Penalisation / Safety, Health and Welfare at Work / Terms of employment / Written Terms Directive |