Complainant

Respondent

Parties

Jacek  Kozik

Kellor Services (Ire) Ltd.

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-00044268-001

23/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00044268-004

23/05/2021

The Complainant is a current employee of the Respondent company. He has submitted two complaints:

1.       The Complainant submits that the Respondent company is in breach of the Terms of Employment (Information) Act 1994 with respect to him, that he has never received any updated terms and conditions when his contract or position or rate of pay changed. He further alleges that he never received any handbook outlining a grievance procedure or disciplinary policy from his employer.

2.       The Complainant submits that the Respondent company is in breach of the Employment Equality Act 1998 with respect to him, specifically that he has been victimised by the Respondent as a result of previously making a WRC complaint, inter alia, under the Employment Equality Act 1998 (ADJ-00019545). The Complainant is Polish.

No appearance was entered by or on behalf of the Respondent. I am satisfied that the Respondent was properly on notice of the hearing.

I have anonymised the names of the people against whom the Complainant made direct allegations as they were not present at the hearing to give evidence or be subject to cross-examination.

The Complainant was provided with a Polish language interpreter for the hearing by the WRC.

The Complainant gave evidence on his own behalf, under oath.

He said that he had started work for the Respondent company, on August 7th, 2001, and that he continued to be employed by the Respondent. He outlined that he earned €660.94 per week, based on a 49-hour week.

Complaint under the Terms of Employment (Information) Act 1994

The Complainant outlined that he received a contract in 2001, which he produced. He said that it was ‘a short version’ that there was ‘no full contract’, ‘no full rules, no handbook.’ He gave evidence that he had previously taken a WRC case against the employer, on this point, and had received a finding in his favour. He said that despite the fact that there was a finding in his favour, no action had been taken by the employer. He said that the decision dated from 2019.

Mindful that the Complainant was unrepresented, the Adjudication Officer, at the hearing, explained to the Complainant that the WRC has no jurisdiction with respect to enforcement, that it is the District Court which has jurisdiction with respect to enforcement. The Complainant said that there was an issue with enforcement of that decision through the District Court as he had incorrectly provided the address of the owner rather than the business.

The Adjudication Officer, at the hearing, enquired as to the current position. The Complainant said that the current position was that there was no grievance policy and no handbook.

The Adjudication Officer, at the hearing, enquired as to whether the Complainant had received any updated terms to his contract of employment – the contract of employment he produced contained a figure of £280. He said he had not received any updated terms of employment He said: “No. No updates ever.” He said that he “never received any updates.” He said that “every single time my position was changed [he] was told that those changes were made inside the company and there is no paperwork required for employees, as they don’t need it.”

The Adjudication Officer, at the hearing, enquired that the contract appears to refer to another document, and as to whether the Complainant received any other documents from his employer. He said: “No, I never received any documentation.” He alleged that if employees received documentation, it would provide a basis to make a complaint to the employer.

The Adjudication Officer, at the hearing, enquired in relation to the ‘Induction Take Home Pack’ mentioned in the contract and whether the Complainant had received it. The Complainant said: “No – never received anything. Even now - new employees get nothing now.”

The Complainant outlined that he had specifically requested handbooks and documents from his employer, that he was the only employee who had specifically requested it, “no other employee did” and “I still wasn’t given it.”

He said that: “Right now, I can’t make any complaint about the change in position in relation to changing the wages to lower wages. He said that he had “no way of addressing it.”

Complaint under the Employment Equality Act 1998

The Complainant alleges that he has been victimised on foot of having made a complaint to the WRC previously – his previous complaint (ADJ-00019545) included a complaint under the Employment Equality Act 1998.

Background information:

The Complainant gave evidence the background to his original complaint was that he and three other colleagues (all Irish) were offered either redundancy or a lower position with lower money. He said the offer was made to him by the Personnel Manager. He submitted emails to the Respondent – to the personnel manager - and said that he had been ‘sending those emails every six months.’

He outlined that in all his years working for the Respondent company, he had just one complaint from HR – he said, that what had happened on that occasion, was that he left work six (6) hours early, but he explained that it had been agreed by HR and his manager and actually was the decision of the owner (DR). He said that it happened in 2008 at Easter, and the reason he needed to leave early was due to the flight time - that he was flying to Poland. He said that there was “no investigation, no disciplinary.” [For clarity, my understanding of his evidence is that he was making the point that, with the exception of this minor internal miscommunication in 2008, he had had no dealings with HR from a disciplinary perspective, that he has an unblemished disciplinary record.]

The Complainant outlined that he had been a foreman from 2006 – until January 11th, 2019. He said that he was in the canteen at work and he received a post-it note. The Adjudication Officer, at the hearing, enquired as to what the note said. He said that it said that his wages were to be reduced from “750 to 640 per week.” The Adjudication Officer, at the hearing, enquired as to whether any explanation was provided. The Complainant said that the answer he got was: “That’s the decision of (DR). That’s the final decision. If I don’t like it, I can walk away. That was on the Friday and they said that the new position starts on Monday.”

The Complainant outlined that of his three Irish colleagues who received the same proposition – redundancy or a lower position for lower wages, one took redundancy, two took the lower position at a lower wage. He said, of the two people who remained with the company: “Those two, as far as I know, for the last year, they are already back to their old wages.” He explained that they had also been foremen, also at the same rank as him.

The Complainant alleges that he was singled out from the point when he returned to work from sick leave in 2018. He said that he was on sick leave for two years (2016-2018) and that the intention was to make an example of him to the other Polish workers. He alleges that a manager (GC) asked him when he was “going to leave that place and hang myself like the other people did.”

Victimisation?

The Adjudication Officer, at the hearing, enquired as to who the Complainant alleges victimised him, i.e. punished him after the fact for making a complaint, which was the complaint submitted on his complaint form. The Complainant alleged that two production line managers did – (GC) and (NB). He explained that prior to sick leave, he was on one production line (teak) and post sick leave he was on another (pine).

The Adjudication Officer, at the hearing, enquired as to whether there was any process with respect to redundancy instituted by the Respondent company. The Complainant said that there was, but only for the Irish workers.

The Adjudication Officer, at the hearing, enquired whether there was any return-to-work process. The Complainant said that there was “nothing.” He said, that close to the end of his sick leave, he submitted a fit-to-work certificate from his GP. He outlined that he was still working for the Respondent company but was on sick leave and had been since April 2022, and was in receipt of illness benefit. He explained that the only thing he had received in that time, from his employer was the Christmas schedule, which he received in July.

The Adjudication Officer, at the hearing, enquired as to whether there was anything else the Complainant would like to say that he had not had an opportunity to say? He said that it was the policy of the Respondent company’s owner (DR) not to give handbooks to employees, that this meant that there was no way internally of making a complaint and being heard. He said that he had raised a complaint against his employer previously and that the WRC had confirmed that employment law was being broken. He described the LEAN programme quotes which the Respondent employer displayed in the workplace as a “farce.” He said that he had “sent many emails to HR and still did not receive the handbook.” He said that he “did not agree to the change in his employment conditions, with the lower wages.” He said that it constituted a demotion because he previously had employees under him, that he had been in charge; and, that subsequent to the changes he was “being sent all over the place.”

He said that a year ago, he was trying to talk with HR but that option was not available for him. He said that he asked HR to pass on the required information, and that he was told he could “forget about everything.” He said that he wanted to go back to his old position at his old rates but that he still had no answer in relation to it.

The Complainant said that when he came back to work post-Christmas in January 2021, there was a recommended Covid-related lockdown, which meant there were fewer jobs, as the company reduced the number of employees in the building.

The Adjudication Officer, at the hearing, enquired as to when the Complainant was called back to work. The Complainant explained that there was a phased return of the workforce, over the course of approximately three (3) months. He said that some people returned to work around January 14th, 2021. He said that he emailed the company. He said that people were called back who had much less experience than he did - 2 years; 5 years etc. There were a number of emails and a phone call between the Complainant and the Respondent company, between January and April 2021. He said that on each occasion, he was told that he was not being called back yet. He outlined that about half of the workforce was back by the end of February and the majority of the workforce by the end of March. He said that he was still not offered work anywhere, despite his level of experience. He said he was told that “there was no position for me yet.”

He highlighted the impact this had on him emotionally, in particular, since he was living in a house-share with colleagues who had much less experience than him and who were called back to work sooner than he was. He alleged that (GC) told his housemates/other Polish workers that the Complainant would come back at the end, because he had made a complaint. [For clarity, this is hearsay. No witness other than the Complainant attended at or gave evidence at the hearing.] The Complainant gave evidence that “it was done to make sure that that information would be spread to all the other Polish people, to make sure nobody else made a complaint.”

The Complainant said that all restrictions were due to end on April 5th, 2021, and all people would be going back to work. However, he said that even when the restrictions finished on April 5th, 2021, the Respondent company did not tell him to return straight away. Instead, they told him that he had to come back on April 12th, 2021. The Complainant said that he thought that the company “took back people who had made less problems for Munster Joinery.” He again emphasised that he had nearly twenty (20) years’ experience on the teak line, and that he could do any of the jobs because of his experience. Yet, he was not invited back.

The Complainant further alleges that five or six new employees were hired from Romania and that they started in February 2021, in the middle of restrictions, and that there was “no problem for them.”

No appearance was entered by or on behalf of the Respondent employer.

I find that the Complainant’s evidence was cogent and credible.

I also find that it is noteworthy that the Respondent company elected not to attend the hearing, despite the fact that the Complainant is a current employee. I am satisfied that the Respondent employer was properly on notice of the hearing.

CA-00044268-001 - I find that the continuing failure to provide a comprehensive employment contract along with the failure to provide access to a grievance procedure, in line with S.I. 146/2000, producing a situation whereby the Complainant has no effective mechanism internally by which to make a complaint and have it heard is egregious, and I award the Complainant the maximum compensation allowable under the Terms of Employment (Information) Act which is four weeks’ wages, the correct figure in respect of which I find to be €750 x 4 = €3,000, as I accept the Complainant’s evidence that at no point did the Complainant consent to a cut in his wages, pay being a fundamental term of an employment contract. I find this to be a very serious breach by the Respondent, and an ongoing and continuous one.

CA-00044268-004

“Victimisation” is defined under s. 74 of the Employment Equality Act 1998.

In relation to the law on victimisation and the applicable time limits, I am guided by the Labour Court case of EDA1610, ESB T/A ESB Networks V. David F. Mathews, wherein the Court sets out the law on victimisation under the Employment Equality Act 1998, as follows:

“The Law

Victimisation is defined by s.74(2) of the Act as follows: -

• For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

(d) given notice of an intention to do anything within paragraphs (a) to (c).

In Determination EDA1017,Department of Defence v Barrett, this Court held that in order to make out a claim of victimisation under the Act it must be established that: -

a. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

b. The Complainant was subjected to adverse treatment by the Respondent, and,

c. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

Time Limits

• Section 77 (5) of the Act states:

(5)          Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

Findings of the Court

In accordance with section 77(5) a Complainant must bring a claim for redress in respect of victimisation under the Act within 6 months from the date of the occurrence or as the case may be the most recent occurrence of the act of victimisation to which the case relates.”

In the instant case, the Complainant filed the complaint with the WRC on 23/05/2021. Accordingly, I have jurisdiction to examine any act of victimisation that occurred within the six months ending on that date. The relevant period of victimisation complained of, in this instance, runs from January 2021 through April 2021. I do not have jurisdiction to enquire into complaints of victimisation which pre-date that.

In making out the case the Complainant must show that:

a. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

b. The Complainant was subjected to adverse treatment by the Respondent, and,

c. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

I find, as a matter of fact, that the Complainant meets the threshold set out, under each of the three categories. He took a previous case to the WRC (ADJ-00019545), which included a good faith complaint under the Employment Equality Act 1998, against the Respondent Employer, which gives me jurisdiction to examine the issue of victimisation in respect of having taken that claim. He has sought repeated engagement by the Respondent in relation to the issues highlighted in that case – in particular, in respect of contract, changes to terms of employment, access to a grievance procedure, all to no avail.

I found the Complainant to be a cogent and credible witness. He gave uncontested evidence, as the Respondent employer chose not to engage with the process or attend the hearing.

I find that the Complainant was subjected to adverse treatment by the Respondent, and I find that, on the balance of probabilities, that the adverse treatment to which he was subject was in reaction to the protected action having been taken by the Complainant – in the vernacular, I find that he was “taxed” by his employer for “making trouble” in the form of taking a good faith case to the WRC under two pieces of legislation, including (crucially) one complaint under the Employment Equality Act 1998, and that it is on foot of having engaged in that protected act, that he was victimised, within the meaning of the legislation.

I accept the Complainant’s evidence that the treatment he received from his employer was done, in order to make an example of him, in particular to the other Polish employees, on foot of having made a WRC complaint, which is a protected act under the legislation.

I found his evidence of his experience and ability to occupy a variety of roles cogent and convincing, as was his evidence of not being given the opportunity to do so, until after the point where the entire workforce had returned to work, on April 12th, 2021.

I accept the Complainant’s evidence that in terms of the order of the Workers who were invited to return to work, by the Respondent, post-Covid lockdown: “They took back people who had made less problems for Munster Joinery” than him, and that this constitutes victimisation, under the Employment Equality Act 1998, with respect to the Complainant, in circumstances where he had already made a previous complaint against the company, in good faith, under the Employment Equality Act 1998. I accept his evidence that due to his experience that he could have worked any number of jobs, on different production lines, but instead was invited back to work at the very end rather than the beginning, or any other point throughout the thee month period, “solely or mainly” because he had previously complained. He was therefore on lay-off much longer than he would otherwise have been, and much longer than his peers and contemporaries who had not engaged in a protected act under the legislation.

I also accept the Complainant’s evidence that he was treated less favourably than a new group of workers, who were Romanian, with respect to access to work, insofar as the Romanian workers were brought in to work for the Respondent company at a time when the Complainant was informed it was not possible for him to return to work due to the Covid restrictions, despite his very significant level of experience and that he could therefore have done any of the jobs available. Consequently, he was on lay-off while they were working.

There is clear legal precedent that a remedy in respect of a violation of equality law is to be “effective, persuasive and dissuasive.” I find that the behaviour of the Respondent company is persistent. I find its failure to attend at the hearing and to engage with the WRC to be particularly noteworthy, and that I am entitled to draw inferences from how the Respondent company has conducted itself throughout, and to make findings with respect to same. I find that the Complainant was not invited back to work for a period of three months, despite his level of experience “solely or mainly” (as per the legislation) due to the fact that he had “made trouble” for his employer, by making, inter alia, a good faith complaint to the WRC in respect of a provision under the Employment Equality Act 1998; and I accept his evidence that the delay in his return “was done to make sure that that that information would be spread to all the other Polish people, to make sure nobody else made a complaint.”

I also accept the Complainant’s uncontested evidence that at no point did he consent to a pay cut from €750 per week.

CA-00044268-001

I direct the Respondent to pay the Complainant €3,000 compensation in the amount of €750, which is the maximum allowable under the Terms of Employment (Information) Act 1994, which approximately equates to four weeks’ wages, calculated at his correct weekly rate of €750, within 42 days of the date of this decision.

I further direct the Respondent to provide the Complainant with a comprehensive employment contract, along with a grievance procedure and disciplinary policy, which are compliant with its obligations as set out under the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.  S.I. 146/2000, within 42 days of the date of this decision.

CA-00044268-004

I find that the Respondent victimised the Complainant and I direct the Respondent to pay the Complainant compensation in the amount of €11,250, which accords to the equivalent of approximately 15 weeks’ wages calculated at his correct weekly rate of €750, within 42 days of the date of this decision.

Victimisation; Terms of Employment;