Complainant

Respondent

Parties

Ben  O’Neil

Bidvest Noonan

Representatives

Joseph Ateb, Siptu Trade Union

Ruth Heenan, Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00051517-001

04/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00051517-002

04/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00051517-003

04/07/2022

The Complainant started working for the Respondent company in 1998. His duties include carrying out cleaning duties at locations as required by the Respondent.

This complaint was received by the Workplace Relations Commission on 4th July 2022.

Complaint CA- 00051517 – 001  a complaint submitted under section 6 of the Payment of Wages Act, 1991.

•         On the 10th January 2022, the Complainant sent a message to Mr Wayne Gannon, his line manager, asking where he was to work the next day, Tuesday 11th 2022. (It should be pointed out that rota is communicated to workers by message daily). Mr Gannon replied that the Complainant was to start at 2:30pm.

•         The Complainant replied to Mr Gannon that his COE states that his working time is 8-4:30. Mr Gannon replied that it was quiet at the moment. The Complainant ended up not getting any work on that date.

•         The Complainant was not given any work on the 13th January 2022 and the 14th January 2022. The Complainant sent a message to Mr Gannon informing him that he is still waiting and available for work. (See Appendix 3)

•         On Sunday 16th January 2022, Mr Gannon informed the Complainant where to go the next day Monday 17th January 2022, which the Complainant performed. (See Appendix 3)

•         On the 17th January 2022 at 9:23pm, The Complainant sent a message to Mr Gannon asking where he was to report for work the next day, Monday 18th January 2022. There was no response from Mr Gannon. (See Appendix 3)

•         On the 18th January 2022, when Gannon did not respond to the Complainant's previous message, the Complainant sent another message to Mr Gannon at 9:17am indicating that he had not been given any work that day and where he was working the next day. Later that day, at 12:16pm (approximately 3 hours later) Mr Gannon replied to the Complainant stating he did not see the message from the previous night and without making any reference to the Complainant query about work that day, stated that the Complainant would be informed about work for the next day Tuesday 19th January 2022. The Complainant ended up not having any work that day. (See Appendix 4)

•         On the 19th January 2022, Mr Gannon sent a message at 12:59pm informing the workers (the Complainant included) that they were to report for work at 2pm-16:30. Again, this time is outside the Complainant's hours of work and as a result, the Complainant ended up not getting any work that day.

•         On the 3rd February 2022, the Complainantsent a message to Mr Gannon about getting paid for these days he was not given work or given work outside ofhisCOE.MrGannon replied that theComplainantdidnot attend workonthesedaysandassuchwasnotgettingpaid.

•         On the 18th February 2022, SIPTU wrote to the Respondent regarding the

Complainant's unpaid hours and asked that the matter be resolved as a matter of urgency.

•         On the 29th March 2022, SIPTU sent a follow-up email seeking update.

•         On the 2nd April 2022, the Respondent replied to SIPTU stating that the Complainant has a contractual obligation to be flexible in line with the needs of the business and its clients, that the Complainant was offered work but refused to work.

•         On the 21st April 2022, SIPTU replied to the Respondent stating that the

onus lies solely with the Respondent to provide the Complainant work within his contracted hours and to pay the Complainant for any hours contracted even in the event where work is not available.

•         The Respondent replied to SIPTU email denying any existence of such a contract, asking for the said contract to be forwarded for review.

•         SIPTU responded to the email from the Respondent drawing to its attention that the Complainant joined the Respondent company in 1998 and signed a COE which was standard across the division. SIPTU informed the Respondent that the Complainant is not currently in possession of his contract as it got lost when he was moving homes. SIPTU further drew the attention of the Respondent to the fact that a copy of the Complainant's COE should be on record/file with the Respondent.

•         On the 25th  May 2022, after SIPTU sent an email seeking clarification on the stage of the matter, the Respondent replied stating that "... due to the passage of time there is no contract on file for Ben ..."

•         On the 7th  June 2022, in an extra-ordinary show of goodwill, SIPTU send

an email to the Respondent in an attempt to resolve the matter without the need for a third-party referral. The Respondent replied that its position remains unchanged.

•         On the 10thJune 2022, in light of the discrepancies surrounding the COE,

the Respondent made a formal request for his employee file, hoping that a copy of the COE will be contained within that file which will answer the question[s] surrounding his contracted hours. It should be noted that to date the Respondent had still neither replied to nor complied with the request.

Complaint CA- 00051517 – 002 – complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

•         On numerous occasions, the Respondent had tried to get the Complainant to sign a new contract. On one occasion when the Complainant was having discussion with Mr. Finton Lawlor (a senior manager) about getting extra payment for performing supervisory duties, Mr Lawlor brought up the issue of the Complainant's COE and told him to sign the "NEW CONTRACT' that he was been asked to sign, but the Complainant informed Mr Lawlor that he had a contract and intend to be bound by the contents. It is the Complainant's position that Mr Lawlor was not happy with this response from the Complainant.

•         It is the Complainants position that following this discussion where he insisted on sticking by the terms of his contract regarding his hours of work, he was put on a different hours which he was not able to do resulting in a loss of income thereby constituting a detriment to him.

•         This penalisation occurred over a five-day period. On the 11th,12th,13th,14th & 18th January 2022.

Union Argument.

•         It is respectfully submitted that the Respondent is in clear breach of the Act as its actions constitute a penalisation.

•         It is the position of the Union that an employer of such import should not be allowed to engage in such action without consequences.

•         It is respectfully submitted that there is no defence, grounded in law or otherwise, that should be deemed exculpatory in nature where a finding in favour of the Complainant should not be reached.

•         It is respectfully submitted that the action of the Respondent indicates a clear pattern of coercive behaviour and an absolute disregard for the laws of the land.

Conclusion.

•         It is respectfully submitted that, based on the abundance of evidence, a finding in favour of the Complainant is required.

•         It is respectfully submitted that the Respondent cannot rely on any prima­ facie defence for its coercive behaviours and its absolute disregard for the consequences of its action, be it emotional or financial.

•         It is the position of SIPTU that, some form of monetary compensation be made to the Complainant. It is the position of SIPTU that such compensatory payment should be made to act as a deterrence to the Respondent. In light of this, we would like to draw the Adjudicators attention to the CJEU case of Von Colson & Kamann v Land Nordrhein­ Westfalen [1984] where the CJEU made it clear that where an infringed right flows from European Law the redress provided should not only compensate for economic loss sustained but must serve as a real deterrence against future infractions.

Claim No 3 Failure to preserve Documents under the Terms of Employment (Information) Act 1994

Introduction.

Adjudicating officer, pursuant to section 7(1) Terms of Employment (Information) Act 1994-2014, this claim is before you for a finding that the Respondent is in breach of the said Act.

Background to Case.

•         The Complainant started working for the Respondent company in 1998. His duties include carrying out cleaning duties at locations as required by the Respondent.

•         The Complainant contends that he was issued a Contract of Employment (COE). The Complainant further contends that his working hours as contained within his COE are Monday- Thursday 8am-4:30pm & Fridays 8am-3:30pm.

•         The Complainant stated that some years back, while he was moving houses, his COE was among several documents that got lost. In 2022, after the Complainant got involved in a dispute over the terms of his contract of employment, after the matter could not be resolved, the Complainant got the Union involved.

•         When the Respondent denied the existence of any such contract, SIPTU responded to the email drawing the Respondents attention to the fact that when the Complainant joined the company in 1998, it was standard practise for employees to be issued with a contract of employment and a copy retained on file by the company. (See Appendix 13)

•         On the 25th May 2022, after SIPTU sent an email seeking clarification on the stage of the matter, the Respondent replied stating that " ... due to the passage of time there is no contract on file for Ben ... " (See Appendix 14 & 15)

•         On the 10th June 2022, in light of the discrepancies surrounding the COE, the Respondent made a formal request for his employee file, hoping that a copy of the COE will be contained within that file which will answer the question[s] surrounding his contracted hours. To date, the Respondent had neither replied to nor complied with the request. (See Appendix 17)

UnionArgument.

•         Adjudicator, it is respectfully submitted that the respondent is in clear breach of section 3(5) of the said Act for failing to comply with the statutory obligation imposed upon it to issue a contract of employment to its employee and preserve a copy of said document for the duration that the employee is in the employ of the employer and one year after that employment ceases.

•         It is respectfully submitted that the Respondent has shown an absolute disregard for the law of the land.

•         It is respectfully submitted that this is an unacceptable behaviour from employee of such size and import.

•         It is respectfully submitted that the respondent cannot put forward any prima-facie defence, grounded in law or otherwise why such an action should not warrant a finding against it.

Conclusion.

•         Adjudicator, it is respectfully submitted that, based on the balance of probabilities, it is clear from the preponderance of evidence that a finding in favour of the Complainant is required.

•         It is the position of SIPTU that, since Complainant cannot be put in the position he was before this breach, some additional monetary compensation be made as some form of restitution to the complainant. It is the position of SIPTU that such compensatory payment should also act as a deterrence to the Respondent. In light of this, we would like to draw the Adjudicators attention to the CJEU case of Von Colson & Kamann v Land Nordrhein-Westfalen [1984] where the CJEU made it clear that where an infringed right flows from European Law the redress provided should not only compensate for economic loss sustained but must serve as a real deterrence against future infractions.

Background to the Respondent Company

Bidvest Noonan (ROI) Limited is a customer-focused services group which employs over 27,000 people across the UK & Ireland. The Respondent is the market leader for a wide range of outsourced services in Ireland.

Background to the Complainant

The Complainant is a long serving employee of the Respondent company. The Respondent recognises the Complainant’s right to bring the claims under discussion today.

The Complainant is employed as an Industrial Operative with the Respondent, he is paid fortnightly at the rate of €12.67 per hour. It is of note that this contract under “Hours of Work” mentions flexibility required from employees twice. This is in contravention with the Complainant’s suggestion that his established working hours are 8am to 3.30pm, and in line with the flexible nature of the work done by all Industrial Operatives at Bidvest Noonan nationwide. The Respondent concedes that in most instances the Respondent would ordinarily work shifts of 8 to 4.30pm, but when work is tight or client demands change, the Respondent has always been required to show flexibility.

CA-00051717-001 (Pay)

By way of background to these issues, the Respondent submits details of communication to the Complainant regarding working hours from January 4th upon return from Christmas, to which they received no response. The Respondent first received communication from the Complainant on 10th January. The work assigned to the Complainant began at 2.30pm. This later start time was as a result of client requests for tasks to be completed such as cleaning kitchens, carpets and toilets which would normally be done out of hours. Other employees were also being asked to work later shifts on this date out of necessity. This was a quiet period, and this was the only shift available for the Complainant. The Complainant did not complete this work. The Respondent explained the circumstances for why later shifts were necessary on 11th January.

The Respondent did not hear from the Complainant until after 9pm on 17th January. Mr. Wayne Gannon, Line Manager, did not see this message until the next morning when he told the Complainant there would be work for him the next day.

The Respondent contends that the Complainant failed to make himself available for work during this time period by refusing shifts and not communicating with his line manager to be given working hours for any days in the period of 10th January to 17th. The Respondent would submit that the work continued with the rest of the team during this time period, and that if there is any reason why the Complainant did not receive pay for this week, it was solely down to his refusal of shifts and failure to comply with established communication channels to get work.

The Respondent would submit there was no right to pay to be invoked under these circumstances, but that, notwithstanding that, as the employee was not entitled to the pay, he accordingly was not treated unfairly. We respectfully request this claim fails on these grounds.

CA-00051717-002 (Penalisation)

The Respondent wholly denies any penalisation of the Complainant.

There is a clear disagreement as to the events and facts relevant to this matter.

The Respondent strongly refutes the claims made by the Complainant in his own submission which suggest he was pressurised to sign documents not explained to him.

The Respondent categorically denies the allegations made in the Complainant’s submission (that a line manager told an employee to “just sign it” and stormed off) and say such an event never took place.

For the sake of clarity here, it is worth noting that the Respondent introduced a new classification system for the permanent employees of the Industrial Division. As part of this classification system, employees’ rates of remuneration would be linked and benchmarked to the Contract Cleaning ERO. The classification levels in this structure are based on numerous criteria such as length of service, experience within the industry, training qualifications, nature of the work performed and others as outlined in the enclosed document. Employees would therefore receive a premium on top of the ERO rate based on their classification as per the outlined criteria. The Respondent company completed a roadshow to meet with their employees and engage with them on the new structure.

It is these meetings we believe the Complainant refers to where he refers to a conversation with Mr Fintan Lawlor. The nature of these meetings was to explain the purpose and benefit of the new pay structure and give the employees an opportunity to sign an agreement to move to this structure. Mr Fintan Lawlor recalls this specific conversation and will give evidence that the purpose of the conversation was to explain the benefits of the scheme to the Complainant and that this conversation ended with Mr Lawlor asking him to take some time to consider the new scheme, which the Complainant agreed to do.

The Respondent denies any pressure was put on the Complainant to sign any new contract and that the engagement regarding the new pay scheme was nothing more than ordinary consultation. The Complainant is one of a cohort of employees who did not agree to the new scheme and the Respondent denies any inappropriate communication in relation to this.

CA-00051717-003 (Contract)

We would like to draw attention to the length of the Complainant’s service with the organisation and mention there has been reasonable turnover in management over the course of this time. This has certainly presented administrative challenges in accessing the contract of employment for the Complainant.

Recently, the Respondent has found the contract, as issued in 2009.The Respondent concedes this is not an entirely satisfactory contract, but does note that same has been signed by the Complainant. A copy of this contract has since been sent to the Complainant for his reference.

The Respondent makes no further submissions on this claim as a result of a lack of supporting documentation available to them at this time.

Conclusion

The Adjudicator is respectfully requested, based on the Respondent’s submission and the evidence adduced herein, to find that the breaches claimed did not occur and to find in the Respondent’s favor.

CA – 00051517 – 001. Complaint submitted under section 6 of the Payment of Wages Act, 1991.

The submission from the Complainant is very confusing in relation to dates. The submission states that the Complainant was offered no work at all on two days. I now order the Respondent to pay the Complainant for these two days i.e., 12.65 x 16 hours = Euro 202.40.

In relation to the days that the Complainant was offered work which he states are outside his contracted hours e.g., 2.00pm to 6.00pm I find that the period from 4.30pm to 6.00pm are outside his hours, the period from 2.00pm to 4.00pm are inside his normal work hours. The Complainant should not have refused to work at all on these days, he should have worked under protest until such time as he could submit a complaint under the Respondent’s grievance procedure. I make no award at all for these days.

CA – 00051517 – 002. Complaint submitted under the Terms of Employment (Information) Act, 1994.

As per submission the Respondent has stated –

The Respondent strongly refutes the claims made by the Complainant in his own submission which suggest he was pressurised to sign documents not explained to him.

The Respondent categorically denies the allegations made in the Complainant’s submission (that a line manager told an employee to “just sign it” and stormed off) and say such an event never took place.

For the sake of clarity here, it is worth noting that the Respondent introduced a new classification system for the permanent employees of the Industrial Division. As part of this classification system, employees’ rates of remuneration would be linked and benchmarked to the Contract Cleaning ERO. The classification levels in this structure are based on numerous criteria such as length of service, experience within the industry, training qualifications, nature of the work performed and others as outlined in the enclosed document. Employees would therefore receive a premium on top of the ERO rate based on their classification as per the outlined criteria. The Respondent company completed a roadshow to meet with their employees and engage with them on the new structure.

It is these meetings we believe the Complainant refers to where he refers to a conversation with Mr Fintan Lawlor. The nature of these meetings was to explain the purpose and benefit of the new pay structure and give the employees an opportunity to sign an agreement to move to this structure. Mr Fintan Lawlor recalls this specific conversation and will give evidence that the purpose of the conversation was to explain the benefits of the scheme to the Complainant and that this conversation ended with Mr Lawlor asking him to take some time to consider the new scheme, which the Complainant agreed to do.

The Respondent denies any pressure was put on the Complainant to sign any new contract and that the engagement regarding the new pay scheme was nothing more than ordinary consultation. The Complainant is one of a cohort of employees who did not agree to the new scheme and the Respondent denies any inappropriate communication in relation to this.

This version of events is more credible that the version provided by the Complainant.

The Complainant has provided no detail in relation to dates when he was spoken to by Mr. Lawlor. Mr Lawlor denies that any exchange took place between himself and the Complainant.

I find that this complaint as presented under section 7 of the Terms of Employment (Information) Act, 1994 is not well founded.

CA – 00051517 – 003 Complaint submitted under the Terms of Employment (Information) Act, 1994.

As per submission the Respondent has stated the following:

“We would like to draw attention to the length of the Complainant’s service with the organisation and mention there has been reasonable turnover in management over the course of this time. This has certainly presented administrative challenges in accessing the contract of employment for the Complainant.

Recently, the Respondent has found the contract, as issued in 2009.The Respondent concedes this is not an entirely satisfactory contract but does note that same has been signed by the Complainant. A copy of this contract has since been sent to the Complainant for his reference.

The Respondent makes no further submissions on this claim as a result of a lack of supporting documentation available to them at this time”.

Section 3 (1) of the above referenced Act reads as follows:

An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say - ………..

Section 7 of the Act states:

7.-(1) An employee may present a complaint to a rights commissioner that his or her employer has contravened section 3, 4, 5 or 6 in relation to him or her and, if he or she does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a recommendation in writing in relation to it and shall communicate the recommendation to the parties.

Section 7 (2) of the same Act states:

7(2) A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:

(a)    Declare that the complaint was or, as the case may be, was not well founded,

(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977.

In the instant case the Complainant has stated that he lost his contract of employment when he moved house. The partial copy of the contract produced at hearing did not contain the required information specified in the Act and clearly stated “Employee Copy”.

I find that the Respondent has breached the Act and now order the Respondent to pay two weeks pay to the Complainant as compensation. This amounts to Euro 986.70 (12.65 x 78).

All monies awarded to the Complainant should be made within 42 from the date of this decision.

As outlined above.