CORRECTION ORDER
ISSUED PURSUANT TO SECTION 41 OF THE WORKPLACE RELATIONS ACT 2015
This Order corrects the original Decision ADJ-00019471 issued on 10th March 2023 and should be read in conjunction with that Decision.
Adjudication Reference: ADJ-00019471
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | A Government Department and a Public Service Organisation |
Representatives |
| Aoife Burke Chief State Solicitors Office |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011 | CA-00025433-002 | 30/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00025433-003 | 30/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00025433-004 | 30/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00025433-005 | 30/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00029835-001 | 23/07/2019 |
Date of Adjudication Hearing: 05/05/2022
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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 from 1st November 1991. |
Summary of Complainant’s Case:
CA-0029835-001 The Complainant was suspended from a Public Service in 2013 for something she did not do. On 1st August 2018, the Complainant’s wages were stopped although she was appealing her conviction. No justification has been received for this. Other staff are in receipt of wages while suspended. The Complainant is innocent and has been framed because she is a whistleblower exposing corruption in the service. She wants her wages reinstated and backdated. CA-00025433-002 The Complainant reported corruption to the Confidential Recipient from 2011 until 2013. In February 2017, August 2017 and January 2019 the Complainant made protected disclosures to an Ombudsman and other bodies. She made a statement to the chairman of the Disclosures Tribunal and will be included in Disclosures Tribunal. CA-00025433-003 The Complainant has not received details of the procedures of the Respondent pursuant to S14 (1) of the 1977 Act despite request. CA-00025433-004 The Complainant has not received notice of changes to her terms of employment in writing since joining the service in 1991. CA-00025433-005 The Complainant claims her employer is not keeping statutory employment records of breaks since 2012. |
Summary of Respondent’s Case:
The complaints are misconceived and should be dismissed. CA-0029835-001 The Complainant wages ceased on 1st August 2018 pursuant to her contract of employment S5 (1 (a) of the 1991 Act authorised by HQ Directive 073/15 and regulation 7 of the Garda Siochana (Discipline) Regulations 2007 as the Complainant was serving a 20 month prison sentence following conviction of a criminal offence. The Respondent denies any breach of S5 of the Payment of Wages Act 1991 and says the deduction is permitted by S5 (1) (a) of the 1991 Act instruments under statute which is Regulation 7 of SI 214/2007 or by contract under S5 (1) (b) of the 1991 Act. CA-00025433-002 The Respondent was unaware the Complainant made any protected disclosures until receiving her complaint form to the WRC in January 2019. It is unclear what penalisation the Complainant alleges, penalisation is denied. The incidents of penalisation must be those alleged to take place within 6-12 months prior to date of submission of her complaint form. The Complainant is not permitted to make a complaint pursuant to the Criminal Justice Act 2011 for alleged penalisation that took place subsequent to 15 July 2014. The Respondent denies penalisation as they were not aware of the protected disclosures made by the Complainant until the complaint was received. CA-00025433-003 The complaints did not occur during 6-12 months prior to submission of the complaint on 30th January 2019. CA-00025433-004 The complaints did not occur during 6-12 months prior to submission of the complaint on 30th January 2019. CA-00025433-005 The regulations do not apply to the Complainant. |
Findings and Conclusions:
I have heard and considered the submissions and evidence given by the parties and their witnesses. In light of the Complainant’s medical situation, and reports, it is appropriate that the parties be given anonymity. CA-0029835-001 The Respondent has produced S10 (a) of the Respondents policy document on suspension from duty of members of An Garda Siochana as authorised by Statutory Instrument 214/2007 An Garda Siochana (Discipline Regulations) 2007 as amended which states that a member will not be paid a suspension allowance in lieu of pay where the member is detained in pursuance of a Court sentence. The Complainant was convicted of harassment contrary to the Non-Fatal Offences against the Person Act 1997 on 1 August 2017 and sentenced for 3 years which was subsequently reduced to 20 months on appeal. I find the Respondent is authorised to withhold payment of the Complainant’s suspension allowance in accordance with S5 1(a) of the Payment of Wages Act 1991.This complaint is not well founded. CA-00025433-002 The Complainant alleges penalisation for reporting breaches of the Criminal Justice Act 2011 in a complaint received by the Workplace Relations Commission on 30th January 2019. The Complainant says she reported corruption and protected disclosures in February 2011, December 2012, June 2013, February 2017, August 2017, and January 2019. S41 of the Workplace Relations Act 2015 provides; (6) Subject to subsection (8) an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates….. (8) An Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7)( but not later than 6 months after such expiration)as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll. “It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”. The incidents of penalisation alleged must take place within six months prior to date of submission of the complaint form on 30th January 2019, which can be extended up to twelve months where there is reasonable cause. The Complainant alleges penalisation due to cessation of her salary in August 2018. The alleged penalisation falls within the six month statutory time limit within which complaints can be made in accordance with S41 of the Workplace Relations Act 2015. There are other allegations of penalisation made by the Complainant outside the statutory time-limits which do not fall within my jurisdiction. The Complainant says she reported protected disclosures in February 2011, December 2012, June 2013, February 2017, August 2017, and January 2019. She has provided a statement setting out numerous allegations of fraud, bullying, corruption, breach of privacy, breach of the Safety Health and Welfare at Work Act 2005, and Organisation of Working Time Act 1997 which allegations amount to protected disclosures within the meaning of the Protected Disclosures Act 2014. The Respondent says there is no record of any communications being received by the Office of the Garda Commissioner from the office of the Confidential Recipient from 2011 to 2013 and deny knowledge of protected disclosures being made by the Complainant until 2019. The Complainant has provided an excerpt from Court proceedings in 2017 whereby a senior member of the Respondent was informed that she had made various protected disclosures. The test for penalisation of a worker due to a protected disclosure complaint was set out by the Labour Court in Aidan & Henrietta McGrath Partnership v Monaghan [2017] ELR 8 and that the Court must: (i) Establish that a protected disclosure had been made; and (ii) If so, then it must examine whether a penalisation within the meaning of the Act has occurred. The Court stated the act or omission that is being complained of must be because of, or in retaliation for, the worker having made a protected disclosure. The making of the protected disclosure must be an operative cause of the penalisation. A consideration of the motive or reasons which influenced the decision maker to subject the worker to the act or omission complained of must be undertaken. In 2013 the Complainant was arrested and suspended with pay. A disciplinary investigation was commenced which was paused until the conclusion of the criminal proceedings following request by the Complainant. The Complainant was convicted of harassment contrary to the Non-Fatal Offences against the Person Act 1997 on 1 August 2017 and sentenced for 3 years in prison which was subsequently reduced to 20 months on appeal. She was remanded in custody on 30th October 2017. The withdrawal of suspension pay took place in August 2018. S10 (a) of the Respondents policy document on suspension from duty of members of An Garda Siochana as authorised by Statutory Instrument 214/2007 An Garda Siochana (Discipline Regulations) 2007 as amended states that a member will not be paid a suspension allowance in lieu of pay where the member is detained in pursuance of a Court sentence. A member of the Respondent gave evidence that the reason for his decision to withdraw suspension pay from the Complainant in August 2018 was due to her conviction of a serious criminal offence and being detained in prison. He says he was not aware of a protected disclosure being made by the Complainant until 27th July 2019. He had no other dealings with the Complainant. Having considered the evidence, I find the complaint is not well founded. The Complainant has not provided evidence of a link between the decision by the Respondent to withdraw suspension pay which is authorised by statutory instrument and her protected disclosures. CA-00025433-003 The Complainant claims she did not receive a statement of her terms of employment in accordance with S7 of the Terms of Employment (Information) Act 1994 which was requested by her on 5th July 2017. S6 of the Act provides that where before commencement of the Act an employee has entered into a contract of employment, the employer shall if requested furnish a statement of terms of employment within 2 months. This is a continuing obligation on the part of the employer. A witness for the Respondent said that members of staff on suspension do not have access to the Portal. The Complainant can request documents from an appointed person while on suspension. The Complainant did not want contact from the appointed person while in Dochas. No evidence has been adduced that the request for a statement of terms of employment was made to the appointed person. I find the complaint is well founded and direct the Respondent to provide a statement of terms of employment to the Complainant. CA-00025433-004 The Complainant claims she did not receive notification of changes to her terms of employment in accordance with S7 of the Terms of Employment (Information) Act 1994. S5 of the Act provides that the employer should notify the employee in writing of the nature and date of the change no later than 1 month after the change. A witness for the Respondent said that members of staff on suspension do not have access to the Portal. The Respondent’s witness said there was no change to the Complainant’s pension or pay while on suspension so there was no requirement to provide details of pension benefit to the Complainant. I find the complaint is not well founded. CA-00025433-005 I find the complaint is not well founded. The regulations do not apply to the Complainant. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-0029835-001 This complaint is not well founded. CA-00025433-002 The complaint is not well founded. CA-00025433-003 I find the complaint is well founded. I award the Complainant compensation of €250.00 for the breach and direct payment by the Respondent. CA-00025433-004 I find the complaint is not well founded. CA-00025433-005 I find the complaint is not well founded. |
Dated: 08-05-2024
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
|
CORRECTION ORDER
ISSUED PURSUANT TO SECTION 41 OF THE WORKPLACE RELATIONS ACT 2015
This Order corrects the original Decision ADJ-00019471 issued on 10th March 2023 and should be read in conjunction with that Decision.
Adjudication Reference: ADJ-00019471
Parties:
| Complainant | Respondent |
Anonymised Parties | {An Employee} | {A Government Department and a Public Service Organisation} |
Representatives |
| Aoife Burke Chief State Solicitors Office |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011 | CA-00025433-002 | 30/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00025433-003 | 30/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00025433-004 | 30/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00025433-005 | 30/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00029835-001 | 23/07/2019 |
Date of Adjudication Hearing: 05/05/2022
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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 from 1st November 1991. |
Summary of Complainant’s Case:
CA-0029835-001 The Complainant was suspended from a Public Service in 2013 for something she did not do. On 1st August 2018, the Complainant’s wages were stopped although she was appealing her conviction. No justification has been received for this. Other staff are in receipt of wages while suspended. The Complainant is innocent and has been framed because she is a whistleblower exposing corruption in the service. She wants her wages reinstated and backdated. CA-00025433-002 The Complainant reported corruption to the Confidential Recipient from 2011 until 2013. In February 2017, August 2017 and January 2019 the Complainant made protected disclosures to an Ombudsman and other bodies. She made a statement to the chairman of the Disclosures Tribunal and will be included in Disclosures Tribunal. CA-00025433-003 The Complainant has not received details of the procedures of the Respondent pursuant to S14 (1) of the 1977 Act despite request. CA-00025433-004 The Complainant has not received notice of changes to her terms of employment in writing since joining the service in 1991. CA-00025433-005 The Complainant claims her employer is not keeping statutory employment records of breaks since 2012. |
Summary of Respondent’s Case:
The complaints are misconceived and should be dismissed. CA-0029835-001 The Complainant wages ceased on 1st August 2018 pursuant to her contract of employment S5 (1 (a) of the 1991 Act authorised by HQ Directive 073/15 and regulation 7 of the Garda Siochana (Discipline) Regulations 2007 as the Complainant was serving a 20 month prison sentence following conviction of a criminal offence. The Respondent denies any breach of S5 of the Payment of Wages Act 1991 and says the deduction is permitted by S5 (1) (a) of the 1991 Act instruments under statute which is Regulation 7 of SI 214/2007 or by contract under S5 (1) (b) of the 1991 Act. CA-00025433-002 The Respondent was unaware the Complainant made any protected disclosures until receiving her complaint form to the WRC in January 2019. It is unclear what penalisation the Complainant alleges, penalisation is denied. The incidents of penalisation must be those alleged to take place within 6-12 months prior to date of submission of her complaint form. The Complainant is not permitted to make a complaint pursuant to the Criminal Justice Act 2011 for alleged penalisation that took place subsequent to 15 July 2014. The Respondent denies penalisation as they were not aware of the protected disclosures made by the Complainant until the complaint was received. CA-00025433-003 The complaints did not occur during 6-12 months prior to submission of the complaint on 30th January 2019. CA-00025433-004 The complaints did not occur during 6-12 months prior to submission of the complaint on 30th January 2019. CA-00025433-005 The regulations do not apply to the Complainant. |
Findings and Conclusions:
I have heard and considered the submissions and evidence given by the parties and their witnesses. In light of the Complainant’s medical situation, and reports, it is appropriate that the parties be given anonymity. CA-00025433-001 The Respondent has produced S10 (a) of the Respondents policy document on suspension from duty of members of An Garda Siochana as authorised by Statutory Instrument 214/2007 An Garda Siochana (Discipline Regulations) 2007 as amended which states that a member will not be paid a suspension allowance in lieu of pay where the member is detained in pursuance of a Court sentence. The Complainant was convicted of harassment contrary to the Non-Fatal Offences against the Person Act 1997 on 1 August 2017 and sentenced for 3 years which was subsequently reduced to 20 months on appeal. I find the Respondent is authorised to withhold payment of the Complainant’s suspension allowance in accordance with S5 1(a) of the Payment of Wages Act 1991.This complaint is not well founded. CA-00025433-002 The Complainant alleges penalisation for reporting breaches of the Criminal Justice Act 2011 in a complaint received by the Workplace Relations Commission on 30th January 2019. The Complainant says she reported corruption and protected disclosures in February 2011, December 2012, June 2013, February 2017, August 2017, and January 2019. S41 of the Workplace Relations Act 2015 provides; (6) Subject to subsection (8) an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates….. (8) An Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7)( but not later than 6 months after such expiration)as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll. “It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”. The incidents of penalisation alleged must take place within six months prior to date of submission of the complaint form on 30th January 2019, which can be extended up to twelve months where there is reasonable cause. The Complainant alleges penalisation due to cessation of her salary in August 2018. The alleged penalisation falls within the six month statutory time limit within which complaints can be made in accordance with S41 of the Workplace Relations Act 2015. There are other allegations of penalisation made by the Complainant outside the statutory time-limits which do not fall within my jurisdiction. The Complainant says she reported protected disclosures in February 2011, December 2012, June 2013, February 2017, August 2017, and January 2019. She has provided a statement setting out numerous allegations of fraud, bullying, corruption, breach of privacy, breach of the Safety Health and Welfare at Work Act 2005, and Organisation of Working Time Act 1997 which allegations amount to protected disclosures within the meaning of the Protected Disclosures Act 2014. The Respondent says there is no record of any communications being received by the Office of the Garda Commissioner from the office of the Confidential Recipient from 2011 to 2013 and deny knowledge of protected disclosures being made by the Complainant until 2019. The Complainant has provided an excerpt from Court proceedings in 2017 whereby a senior member of the Respondent was informed that she had made various protected disclosures. The test for penalisation of a worker due to a protected disclosure complaint was set out by the Labour Court in Aidan & Henrietta McGrath Partnership v Monaghan [2017] ELR 8 and that the Court must: (i) Establish that a protected disclosure had been made; and (ii) If so, then it must examine whether a penalisation within the meaning of the Act has occurred. The Court stated the act or omission that is being complained of must be because of, or in retaliation for, the worker having made a protected disclosure. The making of the protected disclosure must be an operative cause of the penalisation. A consideration of the motive or reasons which influenced the decision maker to subject the worker to the act or omission complained of must be undertaken. In 2013 the Complainant was arrested and suspended with pay. A disciplinary investigation was commenced which was paused until the conclusion of the criminal proceedings following request by the Complainant. The Complainant was convicted of harassment contrary to the Non-Fatal Offences against the Person Act 1997 on 1 August 2017 and sentenced for 3 years in prison which was subsequently reduced to 20 months on appeal. She was remanded in custody on 30th October 2017. The withdrawal of suspension pay took place in August 2018. S10 (a) of the Respondents policy document on suspension from duty of members of An Garda Siochana as authorised by Statutory Instrument 214/2007 An Garda Siochana (Discipline Regulations) 2007 as amended states that a member will not be paid a suspension allowance in lieu of pay where the member is detained in pursuance of a Court sentence. A member of the Respondent gave evidence that the reason for his decision to withdraw suspension pay from the Complainant in August 2018 was due to her conviction of a serious criminal offence and being detained in prison. He says he was not aware of a protected disclosure being made by the Complainant until 27th July 2019. He had no other dealings with the Complainant. Having considered the evidence, I find the complaint is not well founded. The Complainant has not provided evidence of a link between the decision by the Respondent to withdraw suspension pay which is authorised by statutory instrument and her protected disclosures. CA-00025433-003 The Complainant claims she did not receive a statement of her terms of employment in accordance with S7 of the Terms of Employment (Information) Act 1994 which was requested by her on 5th July 2017. S6 of the Act provides that where before commencement of the Act an employee has entered into a contract of employment, the employer shall if requested furnish a statement of terms of employment within 2 months. This is a continuing obligation on the part of the employer. A witness for the Respondent said that members of staff on suspension do not have access to the Portal. The Complainant can request documents from an appointed person while on suspension. The Complainant did not want contact from the appointed person while in Dochas. No evidence has been adduced that the request for a statement of terms of employment was made to the appointed person. I find the complaint is well founded and direct the Respondent to provide a statement of terms of employment to the Complainant. CA-00025433-004 The Complainant claims she did not receive notification of changes to her terms of employment in accordance with S7 of the Terms of Employment (Information) Act 1994. S5 of the Act provides that the employer should notify the employee in writing of the nature and date of the change no later than 1 month after the change. A witness for the Respondent said that members of staff on suspension do not have access to the Portal. The Respondent’s witness said there was no change to the Complainant’s pension or pay while on suspension so there was no requirement to provide details of pension benefit to the Complainant. I find the complaint is not well founded. CA-00025433-005 I find the complaint is not well founded. The regulations do not apply to the Complainant. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00025433-001 This complaint is not well founded. CA-00025433-002 The complaint is not well founded. CA-00025433-003 I find the complaint is well founded. I award the Complainant compensation of €250.00 for the breach and direct payment by the Respondent. CA-00025433-004 I find the complaint is not well founded. CA-00025433-005 I find the complaint is not well founded. |
Dated: 10th March 2023
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
|
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019471
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | A Government Department and a Public Service Organisation |
Representatives |
| Aoife Burke Chief State Solicitors Office |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011 | CA-00025433-002 | 30/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00025433-003 | 30/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00025433-004 | 30/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00025433-005 | 30/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00029835-001 | 23/07/2019 |
Date of Adjudication Hearing: 05/05/2022
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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 from 1st November 1991. |
Summary of Complainant’s Case:
CA-0029835-001 The Complainant was suspended from a Public Service in 2013 for something she did not do. On 1st August 2018, the Complainant’s wages were stopped although she was appealing her conviction. No justification has been received for this. Other staff are in receipt of wages while suspended. The Complainant is innocent and has been framed because she is a whistleblower exposing corruption in the service. She wants her wages reinstated and backdated. CA-00025433-002 The Complainant reported corruption to the Confidential Recipient from 2011 until 2013. In February 2017, August 2017 and January 2019 the Complainant made protected disclosures to an Ombudsman and other bodies. She made a statement to the chairman of the Disclosures Tribunal and will be included in Disclosures Tribunal. CA-00025433-003 The Complainant has not received details of the procedures of the Respondent pursuant to S14 (1) of the 1977 Act despite request. CA-00025433-004 The Complainant has not received notice of changes to her terms of employment in writing since joining the service in 1991. CA-00025433-005 The Complainant claims her employer is not keeping statutory employment records of breaks since 2012.
|
Summary of Respondent’s Case:
The complaints are misconceived and should be dismissed. CA-0029835-001 The Complainant wages ceased on 1st August 2018 pursuant to her contract of employment S5 (1 (a) of the 1991 Act authorised by HQ Directive 073/15 and regulation 7 of the Garda Siochana (Discipline) Regulations 2007 as the Complainant was serving a 20 month prison sentence following conviction of a criminal offence. The Respondent denies any breach of S5 of the Payment of Wages Act 1991 and says the deduction is permitted by S5 (1) (a) of the 1991 Act instruments under statute which is Regulation 7 of SI 214/2007 or by contract under S5 (1) (b) of the 1991 Act. CA-00025433-002 The Respondent was unaware the Complainant made any protected disclosures until receiving her complaint form to the WRC in January 2019. It is unclear what penalisation the Complainant alleges, penalisation is denied. The incidents of penalisation must be those alleged to take place within 6-12 months prior to date of submission of her complaint form. The Complainant is not permitted to make a complaint pursuant to the Criminal Justice Act 2011 for alleged penalisation that took place subsequent to 15 July 2014. The Respondent denies penalisation as they were not aware of the protected disclosures made by the Complainant until the complaint was received. CA-00025433-003 The complaints did not occur during 6-12 months prior to submission of the complaint on 30th January 2019. CA-00025433-004 The complaints did not occur during 6-12 months prior to submission of the complaint on 30th January 2019. CA-00025433-005 The regulations do not apply to the Complainant. |
Findings and Conclusions:
I have heard and considered the submissions and evidence given by the parties and their witnesses. In light of the Complainant’s medical situation, and reports, it is appropriate that the parties be given anonymity. CA-00025433-001 The Respondent has produced S10 (a) of the Respondents policy document on suspension from duty of members of An Garda Siochana as authorised by Statutory Instrument 214/2007 An Garda Siochana (Discipline Regulations) 2007 as amended which states that a member will not be paid a suspension allowance in lieu of pay where the member is detained in pursuance of a Court sentence. The Complainant was convicted of harassment contrary to the Non-Fatal Offences against the Person Act 1997 on 1 August 2017 and sentenced for 3 years which was subsequently reduced to 20 months on appeal. I find the Respondent is authorised to withhold payment of the Complainant’s suspension allowance in accordance with S5 1(a) of the Payment of Wages Act 1991.This complaint is not well founded. CA-00025433-002 The Complainant alleges penalisation for reporting breaches of the Criminal Justice Act 2011 in a complaint received by the Workplace Relations Commission on 30th January 2019. The Complainant says she reported corruption and protected disclosures in February 2011, December 2012, June 2013, February 2017, August 2017, and January 2019. S41 of the Workplace Relations Act 2015 provides; (6) Subject to subsection (8) an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates….. (8) An Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7)( but not later than 6 months after such expiration)as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll. “It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”. The incidents of penalisation alleged must take place within six months prior to date of submission of the complaint form on 30th January 2019, which can be extended up to twelve months where there is reasonable cause. The Complainant alleges penalisation due to cessation of her salary in August 2018. The alleged penalisation falls within the six month statutory time limit within which complaints can be made in accordance with S41 of the Workplace Relations Act 2015. There are other allegations of penalisation made by the Complainant outside the statutory time-limits which do not fall within my jurisdiction. The Complainant says she reported protected disclosures in February 2011, December 2012, June 2013, February 2017, August 2017, and January 2019. She has provided a statement setting out numerous allegations of fraud, bullying, corruption, breach of privacy, breach of the Safety Health and Welfare at Work Act 2005, and Organisation of Working Time Act 1997 which allegations amount to protected disclosures within the meaning of the Protected Disclosures Act 2014. The Respondent says there is no record of any communications being received by the Office of the Garda Commissioner from the office of the Confidential Recipient from 2011 to 2013 and deny knowledge of protected disclosures being made by the Complainant until 2019. The Complainant has provided an excerpt from Court proceedings in 2017 whereby a senior member of the Respondent was informed that she had made various protected disclosures. The test for penalisation of a worker due to a protected disclosure complaint was set out by the Labour Court in Aidan & Henrietta McGrath Partnership v Monaghan [2017] ELR 8 and that the Court must: (i) Establish that a protected disclosure had been made; and (ii) If so, then it must examine whether a penalisation within the meaning of the Act has occurred. The Court stated the act or omission that is being complained of must be because of, or in retaliation for, the worker having made a protected disclosure. The making of the protected disclosure must be an operative cause of the penalisation. A consideration of the motive or reasons which influenced the decision maker to subject the worker to the act or omission complained of must be undertaken. In 2013 the Complainant was arrested and suspended with pay. A disciplinary investigation was commenced which was paused until the conclusion of the criminal proceedings following request by the Complainant. The Complainant was convicted of harassment contrary to the Non-Fatal Offences against the Person Act 1997 on 1 August 2017 and sentenced for 3 years in prison which was subsequently reduced to 20 months on appeal. She was remanded in custody on 30th October 2017. The withdrawal of suspension pay took place in August 2018. S10 (a) of the Respondents policy document on suspension from duty of members of An Garda Siochana as authorised by Statutory Instrument 214/2007 An Garda Siochana (Discipline Regulations) 2007 as amended states that a member will not be paid a suspension allowance in lieu of pay where the member is detained in pursuance of a Court sentence. A member of the Respondent gave evidence that the reason for his decision to withdraw suspension pay from the Complainant in August 2018 was due to her conviction of a serious criminal offence and being detained in prison. He says he was not aware of a protected disclosure being made by the Complainant until 27th July 2019. He had no other dealings with the Complainant. Having considered the evidence, I find the complaint is not well founded. The Complainant has not provided evidence of a link between the decision by the Respondent to withdraw suspension pay which is authorised by statutory instrument and her protected disclosures. CA-00025433-003 The Complainant claims she did not receive a statement of her terms of employment in accordance with S7 of the Terms of Employment (Information) Act 1994 which was requested by her on 5th July 2017. S6 of the Act provides that where before commencement of the Act an employee has entered into a contract of employment, the employer shall if requested furnish a statement of terms of employment within 2 months. This is a continuing obligation on the part of the employer. A witness for the Respondent said that members of staff on suspension do not have access to the Portal. The Complainant can request documents from an appointed person while on suspension. The Complainant did not want contact from the appointed person while in Dochas. No evidence has been adduced that the request for a statement of terms of employment was made to the appointed person. I find the complaint is well founded and direct the Respondent to provide a statement of terms of employment to the Complainant. CA-00025433-004 The Complainant claims she did not receive notification of changes to her terms of employment in accordance with S7 of the Terms of Employment (Information) Act 1994. S5 of the Act provides that the employer should notify the employee in writing of the nature and date of the change no later than 1 month after the change. A witness for the Respondent said that members of staff on suspension do not have access to the Portal. The Respondent’s witness said there was no change to the Complainant’s pension or pay while on suspension so there was no requirement to provide details of pension benefit to the Complainant. I find the complaint is not well founded. CA-00025433-005 I find the complaint is not well founded. The regulations do not apply to the Complainant. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00025433-001 This complaint is not well founded. CA-00025433-002 The complaint is not well founded. CA-00025433-003 I find the complaint is well founded. I award the Complainant compensation of €250.00 for the breach and direct payment by the Respondent. CA-00025433-004 I find the complaint is well founded. I award the Complainant compensation of €250.00 for the breach and direct payment by the Respondent. CA-00025433-005 I find the complaint is not well founded. |
Dated: 10th March 2023
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
|