ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033146
Parties:
| Complainant | Respondent |
Parties | Mariusz Pawlak | Lidl Ireland GMBH |
Representatives | David Nohilly Solicitor Larkin Tynan Nohilly Solicitors | Killian O’ Reilly Solicitor Fieldfisher LLP |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Parent’s Leave and Benefit Act 2019 and the Workplace Relations Act 2015. | CA-00043857-001 | 04/05/2021 |
Date of Adjudication Hearing: 02/09/2021 and 28/10/2021
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
The parties were very capably represented on both sides and the witnesses were all courteous to me and the hearing process.
I allowed the right to test the oral evidence presented by cross examination.
Much of this evidence was in conflict between the parties. I have taken time to review all the evidence both written and oral. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected. I have adopted the direction provided in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 at p.113 where O'Flaherty J. in the Supreme Court noted that minute analysis or reasons are not required to be given by administrative tribunals, but that the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.
Background:
The Complainant's case was that his terms and conditions of employment were unfavourably changed after his request for Parents Leave 20th of April 2021. |
Summary of Complainant’s Case:
The Complainant’s case was that he commenced employment with the Respondent on the 5 March 2014. He had a very good relationship with his work colleagues including management. This was subsequently clarified in indirect evidence that he did not have a good relationship with his line manager. He had previously requested parental leave and had been accommodated regarding same. Background information was submitted to me regarding a disciplinary investigation which related to performance issues. The Complainant was in employment with the Respondent at the dates of the hearings. He had a performance review with his line manager in April 2021. The Complainant prepared a request for parental leave on 20 April 2021 and met with his line manager on the 22 April 2021. He requested parents leave for a period of one week from the 28 June 2021 to 4 July 2021. The Complainant’s case was that his line manager said to him “you’re always off”. The Complainant was requested to complete the Respondent’s own form (headed Notification of Parents Leave) which he did on 22 April 2021. His line manager approved the granting of the Parents leave on the 29 April 2021. The Complainant’s submitted that following this request, his terms and conditions of employment work were unfavourably changed. He explained that for the previous five or six years, his days off work were Monday and Tuesday of every week. The Complainant’s wife had the same days of. He submitted that the Respondent was aware of this. Three days after his request for parents leave, his weekly days off were changed to Sunday and Monday. This resulted in a loss of his Sunday supplement which he calculated on average amounted to approximately €2,500 per year. The Complainant submitted that this change in the roster did not apply to other co-workers. He explained that the change to the roster was carried out without notice or consultation with him. His representative submitted that was an unfair and arbitrary system and was more than coincidental. The Complainant submitted that this immediate detriment was linked to his request for parents leave. The change to the roster affected his entire family. He has two children and his wife had to resign from her job due to the changes to his roster. |
Summary of Respondent’s Case:
The Respondent accepted that the Complainant made an application for Parents leave on the 22 April 2021. The request was made to the Complainant’s line manager and point of contact who had been his line manager for the previous two years. The Respondent’s case was that the request was granted without issue and the leave was taken without issue. The Respondent explained that the Complainant had previously made applications for Parents Leave in February 2019, June 2020, October 2020 and January 2021. The Respondent set out how it employs circa 225 staff in the relevant Distribution Centre. The Complainant works in the selection area and 130 operatives working alongside him. The staff roster is completed three weeks in advance and posted on notice boards outside the selections office and at the exit to the canteen. The staff roster is calculated by anticipating the demand for the warehouse services and matching it with the pool of available staff. The manager responsible for preparing the roster noted in April 2021 a number of emerging trends which had the effect that there were more staff rostered on Sundays than required. Insufficient staff were rostered on other days of the week, in particular Mondays and Tuesdays. Because of this, he implemented changes to the roster to rebalance it and align it with the requirements of the business. The Respondent submitted that at least 10 staff experienced changes to their roster as a result of these changes and the Complainant was one of the 10. They disputed that it was only the Complainant that was impacted by the change and pointed out that three co-workers of the 10 affected worked on Sundays and all three were now rostered to work on other days of the week. The Respondent explained that the changes to the roster affected week 19 and thereafter. The roster for week 19 was posted on the 25 April 2021. Direct evidence was given to me by the Complainant’s line manager, the acting Logistics manager and the selections deputy logistic manager. I requested to hear from the Selections deputy logistic manager and the hearing was adjourned on the first day to allow same. The Complainant’s line manager explained that he had no responsibility for preparing the roster since February 2021. He was the Complainant’s line manager for two years and described having a fantastic relationship with them. He disputed that he commented to the Complainant “you’re always off”. He said that he verbally agreed when approached by the Complainant to grant the Parents leave. The Selections deputy logistic manager explained how the Complainant had trained him when he started working for the Respondent eight years previously. He said he got on very well with him. He explained how he was assigned the duty of preparing the roster February 2021. He described the role as forecasting the need for staff to meet the demands and trends in the business. He discovered that the business needed more staff during the week to pick stock and he set the roster to match that forecast. The first week he affected the roster changes was week 19. The roster was completed on the 25 April 2021. The witness explained that he changed the rest days for 10 operatives and did so in a way to try to avoid impacting on their work life balance. He understood that for employees who previously worked on Sundays were affected. He explained how he used a planning tool/computer program that worked out the roster. The witness confirmed that the Complainant’s line manager never said to him that the Complainant had requested parents leave or asked that he interfere with the roster. He explained that he tried to make the changes to the roster as manageable as possible for staff. He did not treat any staff preferentially. He explained that 10 employees were affected by the roster changes and of those 10 employees, 4 (the Complainant and 3 others) had previously worked on Sundays. Following the roster changes these four employees no longer rostered for Sundays. |
Findings and Conclusions:
Section 19 of the Parent's Leave and Benefit Act 2019provides that an employee is protected from penalisation for exercising the entitlement to parent's leave. It is in terms similar to s.16A of the Parental Leave Act 1998.
19. Protection of employees from penalisation
(1) An employer shall not penalise, or threaten penalisation of, an employee for proposing to exercise or having exercised his or her entitlement to parent's leave.
(2) For the purposes of this section, penalisation of an employee includes— (a) dismissal, or the threat of dismissal, of the employee, (b) unfair treatment of the employee, including selection for redundancy, and (c) an unfavourable change in the terms or conditions of employment of the employee.
(3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee, as referred to in subsection (2)(a), the employee may institute proceedings under the Act of 1977 in respect of that dismissal.
Penalisation – Applicable Legal Test In HSD095, Paul O’Neill v Toni and Guy Blackrock [2010] E.L.R. 21, the Labour Court stated as follows: “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 a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment. In the instant case, the complainant contends that he was penalised within the meaning of the Act for requesting parents leave on the 22 April 2021 and “but for” requesting same, his roster would not have been changed and he would not have lost his Sunday supplement. Having heard the submissions of both parties in relation to how the roster was prepared, I accept the bona fides of the Respondent in its clarification of the process. I further accept that the Complainant had applied for and was granted parents leave on several occasions in the past following which there was no issue. More importantly he was not the only person affected by the roster change for week 19 which was posted on the 25 April 2021. Overall, I find that he has not shown that the detriment suffered was a result of or in retaliation for having requested parents leave. In all the circumstances of this complaint, I find that the complainant has not made out a complaint of penalisation within the meaning of the Act. Accordingly, the complaint fails. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
This complaint is not well founded. |
Dated: 07-02-2022
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Penalisation. Parents leave |