Complainant

Respondent

Anonymised Parties

An employee

A Medical Company

Representatives

  Complainant

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049450

31/03/2022

The complainant worked for the respondent for approximately 7.5 months.  While his contract provided for 21 days leave, the respondent’s position was that he was entitled to 14 days based on the length of his normal working day which was 12 hours. The complainant resigned as a result of this issue and alleges that he was subjected to abusive phone calls and threats as a result.

The complainant worked for the respondent for approximately seven and a half months. He was delighted to get the position as it was closer to home and he had wanted to get into the particular sector for quite some time. He was happy with the contract at time of signing and with the holiday allowance which stated "21 days annual leave per year in addition to public holidays" which the complainant thought to be a total of 30 days per year. After approximately 3 months the complainant was booking some days off with his direct manager, when a conversation arose where she told him that the holiday allowance was 14 days as opposed to the 21 stated in his contract. The complainant was extremely disappointed to discover this fact after leaving his previous employment and believes that he was misled in the information that he was given upon joining the respondent.

The complainant asked his manager to rectify the problem but heard nothing for some time. Eventually he was informed by management that his entitlement was 168 hours, which equated to 21 days based on an 8-hour day. As the complainant was working 12-hour days this equated to 14 such days.  Nothing in his contract indicated that this was the situation.  He therefore resigned and in his letter of resignation outlined again his grievance relating to holidays. He did receive a phone call from his Shift Leader – Mr B -  asking him why he had handed in his notice. The Shift Leader was very pleasant on the phone stating that he did not want to see the complainant go as he was getting on very well in the position but understood when the complainant told him about annual leave contract issues.

The complainant submitted a formal grievance.  After 2 working days of nothing not even an acknowledgment or receipt of his grievance the complainant decided to hand in his notice with immediate effect as this was starting to have adverse effects on him. He sent an Email sent on 30/3/22 stating:

‘Good Evening It has been 2 days since I forwarded the below emails for your attention and not one person has had the courtesy to reply or even acknowledge receipt of my grievance. It is with this in mind that I hereby resign with immediate effect. If somebody could kindly respond to my personal email address … I will make arrangements to return my laptop and ID badge / collect my personal effects as soon as possible’.

The complainant received a call from Mr A, (a Manager) in which he was abused. Mr A asked him who did he think he was and what planet was he living on thinking that he was entitled to 21 days holidays.  Mr A further stated “that’s ridiculous" and "you’re an idiot if you thought that". He then proceeded to threaten legal action as the complainant had not worked his notice period of 3 months. The complainant replied that it was the respondent breaking contract.  Mr A then hung up.  Mr A had threatened to find the complainant’s new employer and speak to him. Subsequently, the complainant noted that Mr A had been viewing his LinkedIn account.  The complainant also subsequently received an abusive call from his Shift Leader, Mr B.

CA-00049450-003 Industrial Relations Act

The complainant has lodged this complaint under section 13 of the Industrial Relations Act 1969 indicating that he is in dispute with his former employer is in respect of "Bullying and Harassment Procedures". From the additional submissions made by the complainant it appears that the issue relates to a single telephone call from the Operations Manager, at 18:30 on 30 March 2022.

The claimant received training as part of induction on the Grievance Policy and Bullying and Harassment procedures. No complaint of bullying was received from the complainant prior to his submission of his complaint to the WRC under Section 13 of the Industrial Relations Act 1969.

 S.l. No. 674 of 2020 sets out the definition of bullying as being "Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could be reasonably regarded as undermining the individual's right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work, but, as a once off incident, is not considered to be bullying".

 S.l. No. 674 of 2020, section 6.2, sets out the role of the WRC in terms of resolution of, disputes and issues which arise in the workplace including cases of alleged bullying as being "The provision of Adjudication services under Section 13 of the Industrial Relations Act 1969 following the exhaustion of internal procedures (note: the grounds of a referral to an Adjudication Officer is around the conduct of an investigation in terms of fairness and adherence to fair process and procedure).  As no complaint of bullying was made to the respondent utilising the internal procedures, the respondent submits that this complaint is not properly before the Adjudication Officer.

The employer has argued that this complaint relates to ‘Bullying and Harassment’ and that the complainant did not use the procedures existing in his employment to try and resolve the problems.  The respondent also argues that as the behaviour was not repeated it does not fall within the accepted definition of Bullying and Harassment.

Section 13 (2) of the Industrial Relations Act details matters which may be considered by an Adjudicator as

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

It is clear from the narrative contained in the complainant’s submission that he is concerned with the totality of the treatment he received from his employer, and not just the alleged abusive phone calls and alleged threats.  I find that these complaints fall within the definition of ‘a trade dispute’ and are properly before me.

The underlying issue in this case related to particulars of the contract of employment which the respondent acknowledges were misleading.  From the way the contract was worded it is understandable that the complainant believed his holiday entitlements to be considerably more that what the respondent believed to be the case.  It is clear that this perceived entitlement was of fundamental importance to the complainant, to the extent that he could no longer countenance continuing his employment.  It is difficult to see what acceptable purpose the follow up calls made by representatives of the respondent had.  It is clear that these calls were upsetting to the complainant and indeed subsequent actions of Manager A in viewing his LinkedIn Account were also a cause of concern to the complainant in light of the threat to contact his new employer.

For these reasons I believe the complaint made should be upheld and he should be compensated for the manner in which he was treated.

I recommend that the Respondent pay the Complainant €3000 compensation, in full and final settlement of the dispute.

Industrial relations.  Misleading contract.  Harassment.