ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046426
Parties:
| Complainant | Respondent |
Parties | Brian Breslin | F.X. Buckleys |
Representatives |
| Mr Seamus Storan |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00056858-001 | 26/05/2023 |
Date of Adjudication Hearing: 08/02/2024
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant attended the hearing on his own. Two witnesses on behalf of the Respondent gave evidence. All evidence was taken on oath/affirmation and the opportunity for cross-examination was afforded to the parties.
Background:
The Complainant began his employment with the Respondent as a Shop Assistant on 30 April 2022. He stated that he was constructively dismissed by the Respondent on 2 April 2023 because of a protected disclosure that he had made six weeks previously. |
Summary of Complainant’s Case:
The Complainant stated that he filed a grievance with the Respondent in February 2023 in relation to his inability to take his breaks and his inadequate rate of pay, which he stated made his position untenable and his working conditions intolerable. He also asserted that he complained about his hours being reduced because of new and cheaper staff being hired. He stated that, further to his complaints, he felt under pressure to leave his employment because he was afraid that he would be reprimanded, and that his employment would be terminated. He asserted that, as a result of this pressure imposed on him by the Respondent, he was forced to accept a deal which involved him leaving his employment. |
Summary of Respondent’s Case:
The Complainant was employed as a Shop Assistant by the Respondent and also carried out various other ad-hoc duties such as office work and driving duties. On 10 February 2023, the Complainant informed Mr Darragh Buckley, Director of the Respondent, that he wished to have a meeting with him to discuss a number of matters and Mr Buckley agreed to arrange a date for same. Subsequently on 11 February 2023, the Complainant informed his line manager that he would not be doing any of the deliveries that day until Mr Buckley met with him. The meeting was subsequently arranged for 13 February 2023 at which the Complainant informed Mr Buckley that he was owed 200 hours of pay, in respect of which 120 to 140 hours was for breaks he had not taken while he was out doing deliveries. He further stated that he wanted to receive the market rate of pay, which he subsequently confirmed as being €17.80 per hour. Mr Buckley arranged a follow up meeting with the Complainant wherein he informed him in the first instance that he was responsible for taking his own breaks when he was driving and that he would therefore not be making any back payment to him in respect of the alleged untaken breaks. He also informed the Complainant that he would not entertain an increase in his basic rate of pay. It was also disputed that new cheaper staff were being hired which would negatively impact the Complainant’s working hours. Mr Buckley stated that the Complainant subsequently verbally abused him and also told him “just give me what you owe me and I’m out of here”. As a result of the Complainant’s verbal abuse, Mr Buckley requested that he meet with the Respondent’s HR Advisor, Mr Seamus Storan. The meeting between the Complainant and Mr Storan took place on 27 February 2023 and an exit package was agreed given that both parties were of the view that the working relationship had completely broken down. In a subsequent meeting with Mr Buckley, the Complainant requested an additional annual leave payment on top of what had been agreed with Mr Storan and a cheque was sent to the Complainant on 16 March 2023 which was cashed on 21 March 2023. The Respondent therefore considered that the employment relationship had been ended by mutual consent. |
Findings and Conclusions:
THE LAW Section 2 of the Unfair Dismissals Act 1977, as amended, states: 2.—(1) This Act shall not apply in relation to any of the following persons: a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act, Section 6 of the Act, as amended, further states: 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. (2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following: …. (ba) the employee having made a protected disclosure, Preliminary Matter Given that the Complainant did not have one years’ service, in accordance with section 2 (1) of the Act, I must establish in the first instance if he made a protected disclosure for him to benefit from the protections of the Act as set out in section 6 (2) (ba). The Protected Disclosures Act 2014 defines a protected disclosure at Section 5 as follows: 5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 , a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10 . (2) For the purposes of this Act information is “relevant information” if— · (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in connection with the worker’s employment. (3) The following matters are relevant wrongdoings for the purposes of this Act— · a) that an offence has been, is being or is likely to be committed, b)that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services, c)that a miscarriage of justice has occurred, is occurring or is likely to occur, d)that the health or safety of any individual has been, is being or is likely to be endangered, e)that the environment has been, is being or is likely to be damaged, f)that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur, g)that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or h)that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed. (4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is. Section 6 of the Protected Disclosures (Amendment) Act 2022 subsequently inserted a new section 5A into the 2014 Act. (5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access. Findings: As the matters complained of concerned a personal grievance exclusively related to the Complainant, namely his rate of pay, his inability to take breaks as well as a perceived reduction in hours because of new staff being hired, I find that this does not constitute a protected disclosure for the purposes of the Act, as set out in section 5A of the Protected Disclosures Act 2014 above. Accordingly, I do not have jurisdiction to hear the complaint because the Complainant did not have the requisite twelve months service under the Unfair Dismissals Act 1977, as set out in section 2 (1) of the legislation cited above. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
As I have found the Complainant did not make a protected disclosure, I do not have jurisdiction to hear this complaint because he did not have the requisite twelve months service under the Act as set out in section 2 (1) of the legislation. |
Dated: 05th April 2024
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
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