ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037810
Parties:
| Complainant | Respondent |
Parties | Peter Toland | Dunnes Stores |
Representatives | Vernon Hegarty SIPTU | Owen Keany & Elaine Kelly Byrne Wallace Law Firm |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001 | CA-00049226-001 | 16/03/2022 |
Date of Adjudication Hearing: 30/08/2023
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 2001 and/or Section 19 of the Carer’s Leave Act following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The complainant asserts that the cessation by the respondent of a rostered day off arrangement following the complainant’s return from Carer’s leave constituted penalization under the Act. The respondent denied the allegation and disputed that any rostered day off arrangement was in place.
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Summary of Complainant’s Case:
Introduction 1. Adjudication Officer, the case before you today concerns the complaint of Peter Toland (the Complainant) that he has been subject to penalisation by his employer, Dunnes Stores (the Respondent), from his return to work on the 4th of October 2021, contrary to the provisions of sections 14 and 16 of the Carer’s Leave Act, 2001 (the Act).
Factual Background
2. Peter Toland commenced working in Dunnes Store Letterkenny ‘Old Town’ on the 30th of October 1986. He is employed as a Sales Assistant. (Appendix 1) 3. In August 2018 Peter was put on a ‘rostered day off,’ by the Store Manager, an arrangement which Peter agreed to. This agreed arrangement remained in place from that time. 4. On the 8th of July 2019 Peter started a period of agreed carer’s leave which initially involved a working week reduced to 15 hours per week (from 35); 3 hours per day over five days per week, while maintaining the agreed ‘rostered day off’ within the reduced working time arrangement. 5. The carer’s leave agreement was reduced to working zero hours in October 2020. 6. Peter was originally scheduled to return to work on the 8th of July 2021 but, as his mother had passed away, he did not return until the 4th of October 2021. 7. On his return to work, and without any consultation or notice whatever, Peter learned that his rostered day off was no longer being applied by the Respondent. He raised the matter with the Personnel Manager, pointing out that the agreed term and condition had been in effect since 2018, but was told that as it wasn’t in his contract so ‘it didn’t make any, difference’ whether it had been previously agreed or not. 8. Peter then raised the issue with the Store Manager, who, having checked with Head Office, confirmed the same decision. 9. Peter raised the issue through the internal procedures in the employment by letter dated 22 October 2021 and subsequently through correspondence on his behalf from his trade union representatives on 24/11/21 and 21/02/22 respectively. The Respondent refused to engage in the internal procedure to resolve the issue. 10. The Complaint was referred to the WRC on the 16th of March 2022.
Union case
Summary
Conclusion
The following supplementary submission was made by the union on the 7th.Nov. 2022 Introduction Adjudication Officer, we make the below submission as per your instruction at hearing in the above case, on the 24th of October 2022, that the Complainant make any supplemental submissions he considers appropriate as regards the detail of the ‘timecard’ records submitted by the Respondent in their appendices to their written submissions to the original hearing.
Timecards – a key to understanding what is being recorded
Timecards – illustration of the pattern in the record
Conclusion
Summary of Pertinent Evidence of the Complainant In his direct evidence the complainant said that when he commenced employment with the respondent in 1986, he worked most often on early shifts. He asserted that the contract submitted by the union in their submissions was the correct contract and disputed the contract submitted into evidence by the respondent. The complainant was adamant that his hours were set hours over the years. The claimant said he had a set starting time with no late nights as per the contracts that applied to staff recruited prior to 1994.The claimant asserted that the Handbook referenced in the respondent’s submission regarding flexibility in hours and days did not apply to him. When asked if he accepted the respondent’s assertion that there was no agreement on a rostered day off the claimant replied that his manger said one day when he was passing “ I am putting you on a rostered day off “ , he replied that is fine that’s grand. The complainant said if it did not suit him he would have said I don’t agree to it and stated that he would have disputed it. The claimant said if the respondent was proposing a change to existing terms and conditions they would mainly ask you if you would do it and it was done by agreement .On certain days he would come in for a stock take or if someone was coming from Head Office , the start time would be changed. The claimant said that he was told by Ms. K that he would have to sign for the Handbook submitted into evidence by the respondent.
The claimant said that when he applied for Carers Leave that he did not put down for the rostered day off as he did not think it was necessary to put it down – he took it that it was accepted and agreed. The claimant set out the ensuing exchanges with his line manager in relation to his requests to continue with his rostered day off. The claimant was asked what he had to say to the respondent’s assertion that there was no detriment to him he replied that he was very upset, it physically hit him and he was affected by it. He believed the set hours he worked were a condition of his employment. The claimant said he was delighted when he got the rostered day off and when it was taken away it was the worst thing that could have happened to him. The complainant stated that his second application to amend his carer’s leave arrangement in Oct. 2020 was verbally refused. The complainant said that the rostered day off meant that he could avail of long weekends over a 6 week period and he could plan ahead. He referred to his full time pre 1994 colleagues availing of a rostered day off. The claimant said that if he changed his rostered day to a different day, that would be an exception. The witness said that from time-to-time management would ask him to change his day off for different reasons and sometimes he would change depending on his family and the care of his Mum – he said a bank holiday would not be his rostered day off. The claimant said while there were some exceptions after holidays, it was clear from the submission that he had a sequence of rostered days off over a period of 2 years. Under cross examination, the claimant recounted the historical pattern of working hours and it was put to him that he could have rostered for any day off. The claimant replied yes. He was asked if he was saying that there wasn’t any requirement re flexibility and he replied he accepted you had to be flexible. The claimant was referred to the documentation that had been submitted with regard to his application for Carers Leave and confirmed that the application had been accepted by the respondent. It was put to the claimant that the respondent was glad to have him back and that there was no issue about his Carers Leave. When asked why he did not refer to the rostered day off when he was completing his application for same when he expressed the desire to work 15 hours per week , the complainant responded that he did not think it would become an issue. He acknowledged he should probably have referred to it . It was put to him that the reality was that it had not been agreed – the complainant replied I never thought it would be taken off me. The claimant said he disagreed with the respondent’s denial that there had been an agreement. The claimant was questioned on the rosters that were submitted into evidence and it was put to him that the pattern of a rostered day off was not evident. The claimant acknowledged that there may have been some discrepancies but in general he was on a sequence that included a rostered day off. It was put to the claimant that he could not explain why the rosters did not follow the pattern the complainant had spoken about. It was put to the claimant that he was pre 94 Part time Worker on 35 hours per week – the claimant said he did not know if he was part time or not. He did not think a 35 hour week was part time .He said other people on a 35 hour week did not have a rostered day off. The claimant was asked if flexibility applied to him and he replied – not in terms of working hours. The claimant said he asked for the company handbook to prepare for the case and accepted that he probably saw it previously. When asked if he accepted that the handbook applied to Dunnes Stores staff, the claimant suggested there were different contracts and that certain parts are relevant. It was put to the claimant that he had previously accepted that flexibility was part of his contract he replied that you can be flexible but that there are different terms and conditions in the contracts. The complainant was asked if he was saying that the contract did not require him to be flexible and he replied it depends on the actual situation – every situation was different .The claimant asserted that because of his pre 1994 contract , the flexibility did not apply to him. The claimant said if he was rostered from 9.00a.m.-6.00p.m. sometimes he would be asked to come in at 8.30 and he would do it by agreement. He was aware of other staff who would not do that. The claimant insisted that he was flexible and would oblige – certain things came about by agreement – he referred to his rostered day off from August 2018 – October 2020.The claimant confirmed that prior to Nov.2018 over a period of 32-33 years there was no question of a rostered day off. With respect to whether an agreement existed between the complainant and Mr. PC the claimant replied that his manager Mr. PC said I have put you on a rostered day off and “I said that’s grand P” . The complainant was referred to records of exchanges with Ms. O’D and Ms.K – he denied that he had said there had been no conversation with Mr. PC -the witness confirmed he had no notes but stated he could remember the details but not the date. He was advised that Mr. PC would say in evidence that there was no discussion agreement or entitlement to the rostered days off. The respondent’s representative asserted that the rosters did not demonstrate a general pattern and that a run of a few weeks did not provide for an entitlement as of right to a rostered day off. It was advanced that the union were referring to a pattern that did not exist and were seeking to have that written into the contract of employment .
In summing up the claimant’s representative asserted that the evidence demonstrated that there had been a rostered day off arrangement in place from Nov. 2018 to Dec. 2020.It was advanced that the evidence of the claimant and the Timecards verified the pattern of rostered days off that were in place. It was submitted that the claimant’s evidence to the effect that this arrangement had been the subject of agreement with his line manager was more credible than the evidence of the line manager. It was submitted that the benefits and of the pre1994 contract applied to the complainant. It was submitted that the respondent was asserting that the rostered day off was introduced as it was helpful to the operation of the business. It was submitted that this suggests that the arrangement could be brought into play for operational reasons and subsequently stopped. It was asserted that the arrangement was to the claimant’s benefit and that therein lay the disadvantage – the arrangement was discontinued to the detriment and disadvantage of the complainant. It was submitted that Section 16 referred to unfavourable change. This was a condition of employment that had existed since 2018 – the union was not saying there was ill intent – other than it was opportune to give effect to a change that disadvantaged the claimant. The purpose of the legislation was to protect employees. While some might consider the condition to be slight – it was of significance to the complainant. The effect of withdrawing it was felt keenly; it felt like the withdrawal of benefits .It was submitted that it was opportunistically seized upon by the respondent to discontinue it.The representative referenced Toni & Guy Blackrock v Paul O Neill [2010] HSD095 .It was submitted that but for the fact of having taken carer’s leave , the rostered day off arrangement would not have been changed. |
Summary of Respondent’s Case:
PRELIMINARY 1.1 The Claimant has brought a claim of penalisation, contrary to the provisions of section 16 of the Carer’s Leave Act 2001, as amended. This claim is denied and contested in full. 1.2 It is submitted that the Claimant has failed to adduce facts or evidence from which any finding of penalisation contrary to section 16 of the Carer’s Leave Act 2001 might be made. 1.3 In his complaint form submitted on 16 March 2022, the Claimant asserted that he was penalised by reason of what he describes as the Respondent’s decision to take an agreed “rostered day off” from him following his return from carer’s leave on 4 October 2021. Notably, the Claimant failed to provide any details whatsoever of the “rostered day off” he states was agreed or how he states same was agreed. In addition, the Claimant has failed to provide any facts or evidence in support of his contention that he suffered penalisation for having exercised his entitlement to carer’s leave. 1.4 Following a request for further information from the Respondent’s solicitors, the Claimant’s representative provided written submissions on the 17 October 2022. Regrettably, those submissions, too, omit to provide necessary details in support of the Claimant’s claim of penalisation. 1.5 It remains the case that the Claimant has failed to provide details of any detriment he alleges he suffered; he has failed to provide details of the agreement alleged to have been reached with his former Manager in respect of rostering; he has failed to disclose any details in relation to the “rostered day off” to which he claims an entitlement and he has failed to establish how it could be contended that the matters complained of (even if true, which they are not) could constitute penalisation. 1.6 The Respondent reserves the right to make such further submissions as may be necessary during or following conclusion of the hearing. During the hearing the Respondent will refer to a book of supporting documents where relevant and necessary. 1.7 Subject to the evidence adduced on behalf of the Claimant, the Respondent reserves the right to cross examine the Claimant on oath.
RELEVANT FACTUAL BACKGROUND
2.1 The Claimant is employed as a Sales Assistant by the Respondent and a copy of the Claimant’s contract of employment is contained in the Respondent’s book of documents. This contract provides: “You are employed as a part-time sales assistant and your employment with Dunnes Stores commenced on 30 October 1986. Your minimum working hours are 15. You are employed on a flexible hours basis and your hours can be changed to suit business requirements at any time in the future… For further particulars in this regard, I would refer you to page 9 and 10 of the company handbook”.
2.2 The contract also provides: “I would ask you to note that the company handbook, as updated from time to time issued to you when you commenced your employment with Dunnes Stores sets out in greater detail some of the information set out below. The company handbook also forms part of your terms and conditions of your contract of employment”.
2.3 The Dunnes Stores Employee Handbook provides, at page 11, under the heading ‘hours of work ’: “In order to maintain a higher standard of customer service, your hours of work will change from time to time throughout your employment and you must be flexible in your hours. Your roster will be posted each week on the notice board and it is your responsibility to take note of your hours of work. Your hours will be subject to change according to the store needs and at any time during the course of your employment as dictated by the business. You will be paid actually rostered and worked. All employees must work flexible hours and days, including late nights, Saturdays, Sundays, and Public Holidays as part of your working week.”
2.4 The Claimant applied to take a period of 104 weeks of Carer’s Leave to commence on 8 July 2019 and to terminate on 5 July 2021. This was agreed by the Respondent. Initially the Claimant asked to work 15 hours a week only during this period. The 21091820.1 3 Respondent agreed to this. The Claimant amended his request as he did not wish to work any hours during this period. This was also agreed by the Respondent.
2.5 On the 7 of June 2021, the Claimant wrote to the Respondent to advise that he intended to return to work on 8 of July 2021. The Claimant did not return to work on that date due to a period of certified leave due to a bereavement. He returned to work on the 4 October 2021.
COMPLAINT UNDER THE CARER’S LEAVE ACT - LEGAL SUBMISSIONS
3.1 The Claimant claims that he was penalised by the Respondent in breach of Section 16 of the Carer’s Leave Act 2001.
3.2Section 16(1) of the Carer’s Leave Act provides that: “(1) An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to carer’s leave. (2) Penalisation of an employee includes— (a) dismissal of the employee. (b) unfair treatment of the employee, including selection for redundancy, and (c) an unfavourable change in the 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 Unfair Dismissals Acts, 1977 to 1993, in respect of that dismissal and such dismissal may not be referred to a rights commissioner under Part 4”.
No Casual Link identified by the Claimant
3.3 The Labour Court clarified in Toni & Guy Blackrock v Paul O’Neill [2010] (Determination No. HSD095) that for a claim of penalisation to succeed, there must be a causal link between the protected act and the detriment subsequently imposed on the employee. The Labour Court stated: “It is clear from the language of [section 27] that in order to make out a complaint of penalisation it is necessary for a Claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus 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.”
3.4The Claimant himself does not assert that he suffered a detriment for or in retaliation for having availed of his right to avail of Carer’s Leave, rather he says that he had an agreed rostered day off before he went on Carer’s Leave and then did not have and agreed a rostered day off after his return from Carer’s Leave. Even if that was true – and it is not – that could not constitute penalisation as defined in the Act. On this basis alone, his complaint should be dismissed. The Claimant has not suffered any detriment.
3.5 On the complaint form which the Claimant filed with the Workplace Relations Commission, the Claimant stated the following: “From 2018 I had an agreed, rostered, day off at work and, on my return to work on 4 October 2021 after a period of agreed Carer’s Leave, I found that my rostered day off had been taken off me without any consultation whatsoever, or any explanation from the employer. I raised the matter through internal procedures to try to resolve the issue, but my employer refused to deal with the matter”.
3.6 While the Claimant maintained on his complaint form that he had an agreed rostered day off, during at least two conversations with his Store Manager, the Claimant admitted that there was no agreement with regard to his being rostered on a particular day off. Further, the submission that has since been filed on the Claimant’s behalf now accepts that there was no such agreement. This states that “in August 2018, Peter was put on a rostered day off by the store manager”, an arrangement which Peter agreed to”. The rostering by a Store Manager of the hours and days to be worked by an employee clearly cannot be characterised as an agreement between the store manager and the employee regarding rostering.
3.7 The submission then states that this “arrangement” remained in place from that time. The Claimant’s roster from that period to the commencement of his carer’s leave illustrates that this is not the case.
3.8 The Claimant then submits that – to use his own words – the placing by the store manager of him on a ‘rostered day off’ was an “agreed term and condition in effect since 2018”. Even if there was a consistent pattern to the rostering of the Claimant’s days off – and this is denied- there is no legal authority to support the contention that this creates a legal entitlement to forever more be rostered by reference to this pattern.
3.9 In any event the Claimant’s contract of employment expressly stated that the Claimant is employed “on a flexible hours basis and your hours can be changed to suit business requirements at any time in the future”. Further, the company handbook again expressly provides for flexibility in hours and days of work. Therefore flexibility in term of hours and days of work is an express term of the Claimant’s contract of employment.
3.10 The importance the Respondent places on flexibility in terms of rostering is universally known amongst its employees. The Claimant has worked with the Respondent since 1986 with full understanding of the need for flexibility regarding working times and days and he has many years of experience with the variable demands of the Respondent, and in particular the manner in which the organisation of shifts varies over time. While it is denied that there was a consistent pattern during this period, it must be borne in mind that the period 2018 to July 2019 is but a mere snapshot of the Claimant’s long history of working with the Respondent
3.11. In the case of A Psychiatrist v A Health Service Provider ADJ-00017774 applying Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, the Adjudication Officer held that an act or omission is a detriment only if a reasonable person in the Claimant's position would regard the act or omission in question as detriment. “[A]n unjustified sense of grievance” cannot amount to detriment.
No facts presented from which penalisation may be presumed
3.12 The burden of proof rests with the Claimant. It is only if the Claimant establishes facts from which it may be presumed that there was penalisation that the burden of proof shifts to the Respondent. In the absence of any such facts or evidence, it is respectfully submitted that there is no onus on the Respondent to explain or justify the Claimant’s roster.
3.13 Notwithstanding this, the Respondent will give evidence that the Claimant’s roster pattern is no different to that of the other part-time employees who work in the Store alongside him none of whom have taken Carer’s Leave and that no employee in the Store is by design or by agreement rostered on the same day off each week.
Legal Authorities provided do not avail the Claimant
3.14 In his submissions, the Claimant has sought to rely on certain decisions of the WRC concerning claims of penalisation under the Carer’s Leave Act 2001. The Respondent does not accept that any of those cases assist the Claimant in his pursuit of this claim and that in fact one of the cases is supportive of the Respondent’s position. Oral submissions will be made at the hearing in relation to this. The Respondent respectfully submits that the Adjudication Officer should dismiss the claim. Summary of Pertinent Evidence of Respondent’s Witnesses: Ms.O D
In her direct evidence, the witness recounted her exchanges with the complainant on his return from Carer’s Leave. She advised that when the complainant raised the matter of the rostered day off she told him there was no set sequence and that the needs of the business were a priority. He replied that he was going to the union and wanted to retain the rostered day off. The witness said that the complainant said there had been no conversation with Mr.PC. She said the complainant had said he had a pre 1994 contract – she said there was no evidence of an agreement on a rostered day off. She said when she reviewed his attendance – there were so many sequences – she could not make head nor tail of it. She said the rosters were based on the contracts held.
Under cross examination, the witness said she was confused about the complainant’s pattern of attendance. She did not accept that there was a defined pattern and stated that the complainant was rostered based on the needs of the business. The witness said the company would accommodate requests for change. She said the complainant’s sequence was too erratic. It was put to her that she was confused in her assertion that the complainant said there had been no conversation with Mr. PC. When asked what would constitute a rostered day off the witness said the complainant would revert back to a sequence – she said he did not – he returned to a different sequence It was put to the witness that it was an incorrect characterisation to say the claimant’s work pattern was erratic – this was not accepted by the witness.
Summary of Pertinent Evidence of Ms.K
In her direct evidence the witness set out her experience of working for the company as HR Manager since 1999 and referenced the appointment of the complainant, his contract of employment of 21st. April 2000 – which had been issued to all staff, the 2019 version of the handbook (updated from time to time) and the complainant’s confirmation of receipt of the employer’s Handbook .She stated that the company had never refused a Carer’s Leave application. She recounted her exchanges with the complainant about starting times. The witness confirmed that Mr. PC did the rostering when he was the Store Manager. The witness confirmed that the employer had never refused an application for Carer’s Leave. She said that when the complainant raised the matter of a rostered day off, she thought he was chancing his arm. She advised him he was not on a rostered day off. The witness said that any amendments to the terms of a contract would have to be done by the company’s Head Office – they had no authority to make amendments locally. The witness said the company had been more than accommodating with Carers Leave and tried to facilitate people.
Under cross examination the witness was referred to the complaint’s procedure set out in the company handbook and confirmed it applied to the complainant. It was put to her that because there was no mention of rostering in the complaints paragraph she had formed the view that the procedure did not apply and that this was incorrect. The witness said that when she examined the complainant’s rosters and went back and forth, she concluded there was no consistency in his patterns of rostered days off and that consequently it could not be conceded. She was unable to see pockets of time off that were consistent. The witness said it was examined in great detail . The witness said she was unable to make contact with Mr. PC because he was off on Carer’s Leave at the time. The witness said it was the Store Manager who dealt with grievances.
Summary of Pertinent Evidence of Store Manager Mr.PC In his direct evidence Mr.C confirmed he was Store Manager over the period 2018 – 2020 and had no HR manager at the time so he did it all himself. He devised the rosters – they were based on contracts and business needs on a week to week basis. The witness said he did not consult the complainant about days off – he operated on the basis of the complainant’s contract. He was concerned about stock rotation and observed that when the claimant was off there were a lot of mistakes arising. He said there was no agreement with the complainant – there was no need for him to talk to the complainant. The witness said he did not have the authority to change. As he had a HR brief he dealt with Carers Leave and when the complainant applied and set out the hours he wanted to work he was satisfied they would suit and he said it was no problem. The witness said there was no mention of a rostered day off.
It was put to the witness under cross examination that he may have forgotten about the conversation with the claimant – the witness replied there was no need to talk to the claimant about his contract. It was put to the witness that for operational reasons he had given effect to a rostered day off to deal with the mistakes that were being made and that this was beneficial to the store. The witness replied the pattern was not consistent and was not fully applied. The witness said he could have given the claimant any day off. It was put to the witness that it was not credible that there had not been any conversation with the complainant. It was put to the witness that this was a loose arrangement and that when it was discontinued it was understandable that the complainant would be aggrieved. The witness replied that it was an informal arrangement – he did not formalise anything – there was no authority without going to Head Office for approval. The witness said he was operating within the terms of the complainant’s contract – the rostered day off was an arrangement he put in place to try and overcome the stock taking problems arising on the floor when the complainant was off and was being covered by less experienced staff.
Summing Up In summing up the respondent’s representative referenced Section 16 of the Act and submitted that the claimant was attempting to make the case about a lot of things that it was not about. It was submitted that the dispute/ difference of opinion regarding the contract of employment was of no relevance. Whether or not there was a written contract , there was no dispute about the company handbook – it was contended that it cannot be disputed that the contract carries flexibility provisions and there was a requirement on the complainant of flexibility. It was submitted that the complainant’s pre 1994 contract carried certain benefits that applied to that cohort of worker – including no Sundays or late nights as well as tea breaks.
There was flexibility re locations, hours and days that can be rostered. It was submitted that what was being sought was a rewriting of the terms of a contract on foot of the existence of a pattern / arrangement that was in place for a period of 23 months. The claimant had been working and dealing with the employer for 37 years. Prior to Nov. 2018 – over a period of 32 years – there could not be any arrangement for rostering other than Sunday. It was submitted that a decision to uphold the complaint would cast aside a pattern up to 2018 – it was contended that this had no legal basis.
It was submitted that there had been some confusion as to whether this arrangement was the subject of an agreement .In the grievance submitted by the complainant in October 2021 , the complainant had made no reference to an agreement .There was no evidence of formal communications from the company.
It was submitted that a review of the work patterns as set out in the supplemental submission furnished by the union indicated that there were pockets of days off that suited the business but this was not a universal pattern that applied. It was contended that it had been accepted by the complainant that there had been errors, discrepancies and exceptions. It was submitted that no universal pattern applied. It was submitted that Section 16 required that the complainant had to be penalised for having exercised his entitlement to Carers Leave.
What was being sought by the complainant was that a term would be written into his contract that had never existed. The representative invoked Toni & Guy Blackrock v Paul O Neill [2010]HSD095 which it was contended set a precedent in clear language – detriment was imposed for having committed one of the acts . because of or in retaliation for ………..
It was submitted that there had to be a consideration of motive or reason in assessing the imposition of detriment. To uphold the complaint there would have to be a finding of detriment and the cause was Mr. Toland’s seeking to exercise his rights. The union’s assertions were if one followed another one must be caused by the other.
The representative compared it to a case of a car crash – where an argument could be advanced that but for getting out of bed I would not be in a car crash….It was submitted that one event did not cause the other .No operative reason or motive had been established .It was submitted that there was no suggestion being made of mal intent. It had been accepted on behalf of the complainant that he had been facilitated when he applied for Career’s Leave. It was asserted that in assessing whether or not there was penalisation, mal intent or motive had to be examined.
No evidence had been advanced to show that the company had any issue with staff - the respondent’s representatives had reported that they had never seen an application for Carers Leave being rejected.
It was submitted that the instant case had to be distinguished from the cases being relied upon by the union. It was submitted that there were no similarities between the instant case or the cases invoked by the claimant’s side.
It was submitted that the WRC was being asked to do something beyond their remit – i.e. to rewrite the terms of the claimant’s contract.
The representative questioned the union’s emphasis on the certainty for the claimant of knowing what day he would be off into the future in circumstances where the company devised rosters that were generated 4 weeks in advance.
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Findings and Conclusions:
I have reviewed the evidence presented at the hearings, the submissions made and the authorities relied upon by the respective parties. While much of the focus of the hearings related to the question as to whether the complainant had a rostered day off or not , it is clear from the evidence of Mr. PC that there was an informal arrangement in place - notwithstanding the dispute between the parties regarding patterns and sequences of off days - that realised a rostered day off for the complainant in response to business imperatives and the requirement to deal with the stock taking mistakes that were taking place when the complainant was off. This arrangement was in place for a 2 year period prior to the commencement of the complainant’s carer’s Leave. The union has argued that the refusal to apply this arrangement on the complainant’s return from Carers’Leave constituted penalisation under Section 16 for having exercised his rights under the Act. For their part the respondent has insisted that there is no jurisdiction under the Act to implement what was being sought by the union – to rewrite the complainant’s contract. Section 16 provides as follows :
16.—(1) An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to carer's leave. (2) Penalisation of an employee includes— (a) dismissal of the employee. (b) unfair treatment of the employee, including selection for redundancy, and (c) an unfavourable change in the 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 Unfair Dismissals Acts, 1977 to 1993, in respect of that dismissal and such dismissal may not be referred to a rights commissioner under Part 4. (4) An employee who is entitled to return to work in the employment concerned in accordance with section 14 but is not permitted by his or her employer to do so— (a) shall be deemed to have been dismissed on the date on which he or she was entitled to so return to work and the dismissal shall be deemed, for the purposes of the Unfair Dismissals Acts, 1977 to 1993, to have been an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal, and (b) shall be deemed for the purposes of the Redundancy Payments Acts, 1967 to 1991, to have had his or her contract of employment with his or her employer terminated on the date aforesaid.
I do not accept that the rostered day off was an implied term of the complainant’s contract in circumstances whereby the complainant’s own admission he had not sought this arrangement. I found the evidence of Mr. PC that the measure was introduced informally in response to operational requirements with respect to stock taking to be credible .Both parties have accepted that there was no mal intent on the part of the employer .On the basis of the evidence presented by the respondent’s witnesses , it is reasonable to deduce that the non continuation of the rostered day off arrangement was grounded on industrial relations reasoning – ie. from their perspective there was no evidence of an agreement between the parties either to the existence or continuation of a rostered day off arrangement and this was unrelated to his exercising his entitlement to Carers Leave. While I fully accept the claimant’s evidence that he considers the removal of this concession to be detrimental, I cannot accept that given the acceptance by both parties that there was no mal intent involved that the removal of the concession constituted penalisation for having exercised his entitlement to Carers Leave.
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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.
Section 19 of the Carers Leave Act 2001 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I do not accept that the cessation of the rostered day off constituted penalisation under the Act and consequently I do not uphold the complaint. |
Dated: 14th December 2023
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Key Words:
Rostered Day Off ; Penalisation for availing of Carer’s Leave |
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