Worker

Employer

Anonymised Parties

A Cleaner

A Facilities Management Company

Representatives

Sara-Jane Cromwell SJC Consultancy

Act

Dispute Reference No.

Date of Receipt

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

21/07/2021

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

21/07/2021

The Worker was employed as a cleaner by the Employer, a facilities management company, on a pharmaceutical manufacturing site. The Worker received gross pay of €669; net €492.17 for a 37.5-hour week. The Worker submits that there are three component parts to her dispute (1) the unlawful reduction of overtime rate for the Bank Holiday (2) she is seeking a revocation of a final written warning and (3) that she was being bullied and harassed.  

Public Holiday Overtime Claim:

The Worker submits that the Employer is in breach of contract in that it unilaterally and without agreement reduced her triple rate of overtime pay for a Bank Holiday from 1 August 2020.   The Worker further submits that she consistently objected to this reduction in overtime pay despite two of her colleagues signing letters of agreement to the said reductions.

The Worker rejects the excuse that the triple payment was based on a clerical error nor was the reduction due to the operation of the Employment Regulation Order (ERO) for the industry as she asserts that other employees have retained this triple payment.

The Worker has consistently protested the production of a Letter of Agreement (dated 12th September 2019), purporting to contain her original signature agreeing to the reduction in her overtime rate, (exhibited). The Worker submits that it is clear that the letter and signature is copied and not an original and that the date on the accompanying letter is 26 September, whereas the two other employees signed theirs on 17 September, which was the day the worker was alleged to have signed the same letter they signed theirs, 17 September.

The Worker contends that despite several attempts to be provided with the original letter of agreement as agreed by a member of management, the Employer has persistently failed to provide it despite there being allegedly two copies of the letter. The Worker’s submission contained a comprehensive list of correspondence on this issue, including correspondence from her solicitor at the time. 

The Worker submits that a recent confirmation that some employees  onsite are still in receipt of the triple rate of overtime pay indicates there is a pay discrimination issue between her and other workers.

The Worker is seeking an adjudication on this matter for the purpose of upholding her complaint of a historical premium triple rate for overtime worked on Public Holidays; the existence of a signed agreement to this effect, and to be reimbursed for the difference between the current reduced rate and the €39 (triple time), which is currently 12 public holidays worked since she received the notification of the reduction in the triple rate.

Final Written Warning Investigation:

Extensive detail was given of a disciplinary investigation by the Worker into allegations of aggressive threatening and falsely accusing a work colleague of forging signature in September 2020. This resulted in the Worker receiving a final written warning. The Worker alleges that the investigation was seriously flawed for, amongst other things, a failure by the Employer to provide terms of reference, that the Worker was not properly heard and that she was not afforded requested representation.

It was admitted by the Workers representative that the Worker did not appeal the warning at the time, nor did she attend the appeal hearings. It was also accepted that the final written warning was now removed from the record after the requisite 12 months period had elapsed, in accordance with the Employer’s procedures. The Worker is seeking that the investigation and the resultant be declared null and void.

Bullying and Harassment:

The Worker submits that the two investigations against her: alleged smoking onsite and an alleged  accusation by her of falsely accusing a  member of management of forging her signature on a Letter of Agreement on pay rates were  harassment/retaliation and vexatious conduct, resulting from her unwillingness to agree to the reduced overtime rate and insistence that she did not sign an agreement letter to that effect. She also claims that though an investigation into the smoking issues found that no further action be taken against the Worker, that this was a vexatious act on the part of Management, in that it was a totally unnecessary investigation with its resultant distress. The Worker contends that the second investigation regarding the alleged forged signature was significantly flawed and contains factual errors and falsehoods against her, and that they were designed to make her look non-participative and un-cooperative, which she believes were deliberate.  

She also contends that the inordinate number of communications via post and email, and the various policy documents issued to her have been overwhelming, causing her significant distress, and that this has hugely affected her mental health and her ability to engage with  management.

The Worker submits  this to be a failure of the employer’s duty of care towards her and a breach of the Safety Health and Welfare at Work Act, 2005, Section 8, where it provides: “(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees” and  at  8 (2)(b) where it states that  “managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk.”.

The Employee is seeking adjudication on the failure of her employer’s statutory and common law duty of care and breach of the relevant Safety Health and Welfare at Work legislation and seeks compensation for the significant stress and disruption to her life because of management’s conduct.

The Employer did not attend

In conducting my investigation, I have considered the extensive submission and documentation presented to me by the Complainant only. It should be noted that even though the Employer did not object to a hearing under section 13 of the Industrial Relations Act 1969, it chose not to do so and informed the WRC of this some days in advance of the hearing. I am satisfied that the Employer received copies of the submission and documentation as presented by the Worker at the hearing. The following findings and recommendations are based on the fact that I heard one side only.

Public Holiday Overtime Pay:

After hearing the submission of the Worker, and viewed the extensive documentation provided, I find that the Employee did not agree to a reduction in the public Holiday overtime rate. I recommend that the Employer should immediately  reinstate the public holiday  triple time overtime rate for the Worker going into the future,  upon receipt of this recommendation, and furthermore  that the difference in pay  owed should  be backdated to 1 August 2020 for overtime hours worked on the outstanding public holidays involved in the period between 1 August 2020 and the date of receipt of this recommendation.

Final Written Warning Investigation:

The Worker is seeking that I declare the investigation of allegations against her as being “null and void” on the basis that the investigation was conducted unfairly. I do not find in favour of the Worker on this issue. Firstly, it was accepted that the Worker was afforded the opportunity to appeal the warning but did not turn up at pre-arranged meetings. It is incumbent on a worker to show that she/he has exhausted all internal procedures before a dispute is presented before the Workplace Relations Commission. This is particularly so when the opportunity to challenge unfair procedures was not taken up. Furthermore, I note that the Final Written warning has now been removed as per the Employer’s procedures.

I do not recommend concession of this claim.

Bullying and Harassment:

The Worker is seeking a declaration that the Employer breached its statutory duty under section 8 of the Safety, Health and Welfare at Work Act 2005, or otherwise breached its common law duty by being the cause of stress to the Worker through bullying/harassment. As outlined above in the High Court decision of Mulally  the investigation of an industrial dispute is not concerned with determining the legal rights or duties of any person. Therefore, I am not in a position to make a declaration of breach of statutory nor common law rights. Furthermore, whilst I accept that the issues identified may have been stressful for her, It was incumbent upon the Worker to utilise the internal bullying and harassment procedures to make a complaint, which she plainly did not do. It is not the role of the Adjudicator to investigate whether bullying and harassment did occur, but to investigate whether the procedures utilised were fair and proper. This was not the dispute put before me therefore I do not recommend concession of this claim.

Industrial Relations Act 1969, Bullying and Harassment.