ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036033
Parties:
| Complainant | Respondent |
Parties | Paul Dusa | Excel Recruitment Ltd |
Representatives | Catherine Fitzsimons-Belgaid FreshThinking | Barbara Johnston Employment Law Services |
Complaint(s):
Act | Complaint/Dispute 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-00047251-002 | 19/11/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00047251-003 | 19/11/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00047251-004 | 19/11/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00047251-005 | 19/11/2021 |
Date of Adjudication Hearing: 11/01/2023
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of theEmployment Equality Acts, 1998 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed by the Respondent recruitment agency on an if and when basis. Upon starting for the Complainant, he was immediately placed with a third party hirer. His period of employment was from 29th March to 26th of May 2021.
A remote hearing was held to investigate the below complaints together with complaints submitted against the third party hirer. The Complainant attended the hearing and gave evidence under oath.
The Respondent attended the hearing and Laurence Rogers (Account Manger) gave evidence under affirmation.
The hirer, Masterlink, attended the hearing to respond to complaints submitted against them and Chris Conway (General Manager) gave evidence under affirmation, some of which was relevant to the investigation of complaints against the Respondent.
Each witness was subject to cross examination by the representatives of the other two parties in attendance at the hearing.
The Complainant’s representative had not provided submissions in advance of the hearing and submitted that they had not received the Respondent’s submissions. On review of the relevant correspondence I am satisfied that the Complainant’s representative was notified of the need to provide any written submissions 15 days in advance of the hearing and was provided with the email address to make the submissions to the WRC. On review of the correspondence on file I am also satisfied that the Complainant’s representative was sent the submissions of the Respondent which were sent to the WRC on 6th of October 2022.
I did not invite post hearing submissions.
The claims are summarised as follows.
CA-00047251-002 The Complainant was issued with a contract of employment and handbook. He alleges that this did not comprise of a full statement of particulars as required by the legislation and that the terms regarding working hours were changed unilaterally.
CA-00047251-003 The Complainant sought out his role with the hirer because it was advertised as a Monday to Friday role. The Complainant is a single parent who cares for his child on weekends and as such cannot work weekends.
The Complainant alleges that he was discriminated against by the Respondent and the hirer because could not take on overtime and that this amounted to discrimination on the basis of family status. Each week he was asked to work weekends and was not able to do so. The Complaint argues that he began to become harassed by the hirer and Respondent over this issue and was ultimately let go by the hirer as a result of his stance. The Complainant also alleges that he was harassed due to his disability, which is that he has a partial hearing impairment.
CA-00047251-004 The Complainant accepted that he took neither parental leave nor force majeure while employed by the Respondent. It was suggested by the Complainant representative that this complaint may have been misconceived and due to the way the WRC complaint form is laid out.
CA-00047251-005 The Complainant was unclear as to whether he thought he had received the appropriate holiday pay. He stated that he had received a further payment a full year after his service with the Respondent ended. The Complainant decided in the hearing that this concerned a nominal amount of money and did not want to pursue it further.
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Summary of Complainant’s Case:
The Complainant applied for the position in the hirer’s warehouse specifically because it was advertised as a Monday to Friday role. He was employed by the Respondent and placed with the hirer. On one occasion he worked overtime. After that he was asked all the time. He said that he could not due to his family responsibilities. He began to be regularly harassed to do overtime by the hirer’s supervisors and management. He felt under a lot of pressure and suffered negative comments when he would refuse to work overtime. At one stage one of the hirer’s supervisors said to him that “we don’t sleep weekends”. He was also told by the General Manager that him not working weekends was an issue for them and that they would in contact Respondent to bring it up with them. He would also regular texts messages from the Respondent over this period of time offering him overtime with the hirer. Around this time the Complainant alleged to have been harassed by his supervisor. The supervisor in question was aware he was hard of hearing due to an earlier encounter where he had ridiculed him for frequently asking the supervisor to repeat himself. Shortly before the Complainant’s employment ended the supervisor became mad at him and shouted “I don’t care if you’re deaf” as he walked away from him following an interaction. The Complainant attempted to bring these issues up with both the Respondent and the hirer. After about 9 weeks in the role, on the 26th of May 2021, the Complainant was called into the office at the hirer’s warehouse by Mr Conway. The Complainant was told he was being let go because he wouldn’t do overtime. He was escorted from the premise in a very public and humiliating fashion. The Complainant accepted that he had been offered an alternative posting immediately by the Respondent with one of their other client warehouses but that he felt very let down by the Respondent who had let him be treated terribly by the hirer. He felt he could not continue working with them. The Complainant’s representative submits that though most of his allegations focus on the hirer and their staff the duty of care and employment relationship rests with the Respondent and that they are liable for his being discriminated against and dismissed by the Respondent. |
Summary of Respondent’s Case:
The Respondent submits that they breached no obligation to the Complainant and that he resigned from their service. They were unaware of the issues that the Complainant says he was having with the hirer. The Respondent had posted 25 workers to the hirer. They were obliged to send a group text to all of their workers to let them know of overtime opportunities. When the Complainant expressed frustration over receiving these texts the relevant account manager (Laurence Rogers) was clear that there was no obligation on him to take up the offer, all he had to respond was that he did not want to do the overtime. Text messages demonstrate the collegiate and respectful tone of Mr Rogers who would respond “no problem (thumbs up)” each time the Complainant said he didn’t want to do overtime and was clear that it was optional and that family is more important that work. When the Complainant was unable to attend work one Monday, Mr Rogers notified the hirer without issue. The Respondent in no way discriminated against the Complainant. The Respondent was entirely unaware he had a hearing deficiency as he had not provided this detail in his onboarding questionnaire. Mr Rogers was aware from the Complainant that he was having issues with his supervisor and had committed to follow up with the hirer to see if it could be resolved. The hirer stopped inviting the Complainant back before this could happen. When the hirer sent the Complainant home Mr Rogers notified him that he had work available for him immediately with another client starting the next day. The Complainant turned down this offer and the employment relationship ended by way of his resignation. The Respondent provided the Complainant with a detailed contract and handbook. At no times did they change the contents of the Complainant’s contract as it was drafted to be flexible regarding hours and in any case the Complainant had never been required to work overtime, only offered the opportunity. The Respondent is clear they paid the Complainant’s annual leave in full. Mr Conway gave evidence on behalf of the hirer. He rejected the allegation of discrimination and that the Complainant was dismissed for failing to take up overtime. Mr Conway was clear that he had no power to dismiss the Complainant as he was not an employee of the hirer. On the day in question there was a managers meeting being held which Mr Conway had to attend. As such Mr Conway was being covered by a Mr Brian Harrison who was the General Manager of a different warehouse. Mr Harrison knew the warehouse well and supervised its operation all morning. He reported to Mr Conway on his return to the office that he had pulled Mr Dusa up on a performance issue in the course of his duties and Mr Dusa became extremely heated and spoke to Mr Harrison in a disrespectful tone. After Mr Harrison had left Mr Conway called the Complainant into the office to discuss the issue. The Complainant became extremely heated an aggressive towards Mr Conway in this meeting. Mr Conway felt he had to remove the Complainant from the workplace due to this behaviour. Mr Conway told him he was to go home and escorted him off the floor to the canteen. |
Findings and Conclusions:
CA-00047251-002 Section 3 of the Terms of Employment Information Act 1994 requires that an employer issue a written statement of terms of employment to an employee within 2 months of them starting. As the Complainant did not work for the Respondent for 2 months there can be no claim that the Respondent was required to provide a full statement. The Employment (Miscellaneous Provisions) Act 2018 amended Section 3 to include Section 1A which requires an employer to give an employee a statement in of the following particulars within 5 days of them starting employment. These are: a) the full names of the employer and the employee; (b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014 ); (c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; (d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000 ; (e) the number of hours which the employer reasonably expects the employee to work— (i) per normal working day, and (ii) per normal working week.”, On review of the contract provided it clearly complies with terms a,c and d. It does not contain the employer’s address as required under b. I am also of the view that clause viii in the contract does not comply with subsection e. The Complainant was recruited for a regular posting with core hours. While he was not guaranteed these hours the Respondent still had an obligation to set out the number of hours which they reasonably expected the Complainant would work per each normal day and each normal week in a statement to him within 5 days of him starting. CA-00047251-003 There are a number of matters brought under the Employment Equality Act by the Complainant. This first is that the Complainant was harassed by the hirer on grounds of disability and that the Respondent is liable for this as his employer. The alleged incident of harassment was the Complainant’s supervisor saying loudly “I don’t care if you’re deaf” while walking away from him. After having heard the evidence of the Complainant and Mr Rogers I am satisfied that the Respondent had no knowledge of this incident and as a result couldn’t do anything about it or offer support to the Complainant. In such circumstances, if the incident occurred as alleged, it would be for the hirer to answer not the Respondent. I note the Complainant’s submissions regarding the duty of care resting with the Respondent as the Complainant’s employer however the Employment Equality Acts clearly envisage hirers having to answer to alleged discrimination against agency workers. The Respondent can also take no action regarding something they know nothing about. The second matter concerns the allegation that the Complainant was discriminatorily dismissed by the hirer and Respondent. I note there is significant difference between the evidence of the Complainant and Mr Conway. Mr Conway alleges the Complainant was sent away from the hirer’s warehouse because following a heated conversation with Mr Conway and concerning the way he spoke to another general manager. The Complainant alleges he was sent away because he had refused to work weekends due to his family responsibilities and that this amounted to discrimination on the basis of the family status ground. Ultimately, if the Complainant was sent away from the third party hirer as alleged, it would be for the hirer to answer not the Respondent. The Respondent was on notice that the Complainant was experiencing some issues with the hirer but on review of the text messages available to me this appears to just be regarding interactions with the Complainant’s supervisor. The Complainant raised no suggestion that he was being discriminated against. I note that Mr Rogers stated that he was going to look into this matter but the Complainant was sent away from the hirer’s warehouse only a week later and then immediately resigned from the Respondent, as such he did not get the chance. The Complainant has also alleged that he had been discriminated against and harassed by the Respondent because he had received regular text messages offering overtime from Mr Rogers. The Complainant was clear that he didn’t want to receive these texts. I have reviewed these messages. Mr Rogers was exceedingly polite in responding the Complainant. He was upfront that he was required to send the text asking for overtime and that the Complainant had no obligation to take up the offer. In relation to the above matters I am satisfied that the Complainant has failed to establish a prima facia case of discrimination concerning the Respondent. CA-00047251-004 The Complainant accepted that he took neither parental leave nor force majeure while employed by the Respondent. It was suggested by the Complainant representative that this complaint may have been misconceived and due to the way the WRC complaint form is laid out. CA-00047251-005 The Complainant was unclear as to whether he thought he had received the appropriate holiday pay. He stated that he had received a further payment a full year after his service with the Respondent ended. The Complainant decided in the hearing that this concerned a nominal amount of money and did not want to pursue it further. The Respondent was clear that it paid all holiday pay owing to the Complainant. Redress I have found in favour of the Complainant in regard to one complaint, CA-00047251-002. As the employment relationship has broken down the only form of redress that I would consider is compensation which is capped at 4 weeks’ remuneration. The Complainant was paid €466 per week. The Complainant had less than 2 months service with the Respondent. One review of the evidence presented to me I have no doubt he was aware of the particulars omitted in contravention of Section 3 of the Terms of Employment Information Act. As such this matter only relates to a technical breach of the legislation. In the circumstances I think only a nominal award of €200 is warranted.
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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 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00047251-002 I find this complaint is well founded and direct the Respondent to pay the Complainant €200 in compensation. CA-00047251-003 I find this complaint is not well founded. CA-00047251-004 I find this complaint is not well founded. CA-00047251-005 I find this complaint is not well founded. |
Dated: 03/02/2023
Workplace Relations Commission Adjudication Officer: David James Murphy
Key Words:
Agency Worker |