ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00038121

Parties:

Complaints:

Date of Adjudication Hearing:  22/04/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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 submitted a number of complaints and a number of hearings were convened to hear them.  A hearing due on 1st February 2023 was postponed.  On 7th March 2023 she was represented by a solicitor and he sought and was granted an adjournment due to the sudden illness of the Complainant.  At that hearing, case management resulted in a number of complaints being withdrawn as they were not relevant to the Complainant’s disputes and this was confirmed to the parties by written communication.   The hearing due on 15th August 2023 was postponed and a subsequent hearing due on 29th November 2023 was postponed.  The Complainant changed solicitor and the hearing on 22nd April 2024 proceeded with clarification that the following complaints were withdrawn:

CA-00049334-009            Employment Equality Act 1998

CA-00049334-010            Employment Equality Act 1998

CA-00049334-012            Employment Equality Act 1997

CA-00049334-013            Terms of Employment (Information) Act 1994

CA-00049334-014            Terms of Employment (Information) Act 1994

Summary of Complainant’s Case:

The Complainant was employed as a Retail Assistant from 21st October 2021 to 19th January 2022 in a Service Station. She gave sworn evidence and was examined by her solicitor and cross examined by the solicitor for the Respondent.  The main claims and complaints are as follows:

CA-00049334-006            Protection of Employees (Part-time) Work Act 2001

The Complainant contends that she was treated less favourably than a comparable full-time worker. She submitted that the Respondent had treated her less favourably than others in the employment.

She stated that the Supervisor forced her to pay for ‘drive-offs’ that is when customers drove off the forecourt without paying their bill for fuel.   The manager put a chart on the wall with the employees’ names on it stating who owed outstanding monies to the till however the Claimant was shown to all staff members as owing the most amount of money for the till balance.  Whilst all employees had a set of keys to the shop the Claimant was refused a set of keys with the consequence that the staff would regularly forget their keys on closing whereby the Claimant would have to stay at the shop after 11 p.m. sometimes for up to an hour on her own, whilst the other employees would go home to get their keys and return. An employee group chat was set up and concerns were raised on it because there was an infestation of rats at the back of the building. All employees refused to bring the rubbish and collect mops at the back of the building, however the Claimant was expected to bring the rubbish and collect mops at this location. The Claimant was called stupid by a member of staff. When the Claimant brought this to the managers attention the manager stated that all the staff think that she was stupid and did not reprimand the staff member or address the Claimants complaint.

CA-00049334-015            Organisation of Working Time Act 1997

The complainant contends that she was penalised or threatened with penalisation for opposing in good faith an action that is unlawful or giving intention to do so under the Organisation of Working Time Act.  On the 26th November 2021 the claimant was asked to go into work on the same day, however the Claimant was not able to do so on short notice as she did not have her own transport as a result the manager sent a letter of warning to the Claimant. The Claimant did not receive any verbal warnings before she received the letter on the on the 27th November 2021. On the 09th of November 2021 the Claimant hours began to be reduced despite of her being guaranteed 4 days’ work at interview.

CA-00049334-016            Organisation of Working Time Act 1997

The complainant contends that she was penalised or threatened with penalisation for invoking her rights or giving intention to do so under the Organisation of Working Time Act.  The Claimant asked to take holiday leave over the Christmas period, however the Claimant was informed that the roster was done and that she was not entitled to any holiday leave, the Claimant provided a screen shot of a picture from the Citizens advice website and the Respondent then granted holiday pay.

CA-00049334-017            Protection of Employees (Fixed-time) Work Act 2003

The Complainant contends that as a fixed-term worker and as a part-time worker she has been treated less favourably than a comparable full-time worker.  She submitted that the Respondent had treated her less favourably than others in the employment.

She stated that the Supervisor Ms S treated her in a less favourable manner that other employees.  She stated that the Supervisor forced her to pay for ‘drive-offs’ that is when customers drove off the forecourt without paying their bill for fuel.   The manager put a chart on the wall with the employees’ names on it stating who owed outstanding monies to the till however the Claimant was shown to all staff members as owing the most amount of money for the till balance.  Whilst all employees had a set of keys to the shop the Claimant was refused a set of keys with the consequence that the staff would regularly forget their keys on closing whereby the Claimant would have to stay at the shop after 11 p.m. sometimes for up to an hour on her own, whilst the other employees would go home to get their keys and return. An employee group chat was set up and concerns were raised on it because there was an infestation of rats at the back of the building. All employees refused to bring the rubbish and collect mops at the back of the building, however the Claimant was expected to bring the rubbish and collect mops at this location. The Claimant was called stupid by a member of staff. When the Claimant brought this to the managers attention the manager stated that all the staff think that she was stupid and did not reprimand the staff member or address the Claimants complaint.

In her sworn evidence, the complainant stated that she would be called into work with no notice and as she had no transport she could not come in on 26 November 2021.  She then received a letter of warning on 27 November 2021.  She stated that there was a chart on the wall giving information on till shortages and she was always on the list whereas others were not.  She rang another service station in the Group and asked them if it was normal practice to ask staff to make up the shortages caused by drive offs.  She was told this was not the practice in other stations.  She also stated that she was at one point held responsible for till shortages on a till she did not work.

Summary of Respondent’s Case:

The Respondent made written and verbal submissions summarised as follows:

The Complainant commenced employment on 21 October 2021 as a Shop Assistant and was provided with written terms of conditions of employment.  During the course of her employment, she was observed on her mobile phone while working as well as eating at the till which is not permitted.  The Complainant was also for some reason recording other members of staff performing their duties on her phone without their permission.  The shop manager Ms S attempted to discuss the Complainant’s poor performance with her.  Ms S attempted to explain to the Complainant what she was doing wrong and the correct way to do things.  The Complainant received a number of informal warnings in respect of her conduct at work.  She was requested to attend a disciplinary meeting on 27 November 2021 for not attending work without notifying her manager on two occasions.  She performed her general shop duties to a poor standard.  She received a written warning on 27 November 2021 as her performance failed to meet the standards required by the company.  The Complainant’s performance did not improve following the disciplinary meeting on 11 January 2022.  She had up to then also been observed serving herself at the till which is against procedure, using her personal phone at the till and on the shop floor, using fragrances from the shelf and keeping cash beside the till which should have been put away for security reasons.  She was dismissed on 19 January 2022 due to her performance not meeting the standards required by the company.   The penalisation claims by the Complainant are not understood.   The Respondent was not aware of any issues during her employment.  The complaint under the Part-time work act is not understood.  The complainant has not made out a prima facie case and was at no time treated less favourably than any other employee.

The Manager Ms S gave sworn evidence.  She stated that the wall chart listing till shortages and drive offs applied to everyone in the shop, not just the Complainant.  She stated that the reason she gave the Complainant a written warning on 27 November 2021 was that she did not come into work the previous day, did not send a message or text and did not answer her mobile phone.  This was the second time she did this.

Findings and Conclusions:

CA-00049334-006            Protection of Employees (Part-time) Work Act 2001

Section 9 of the Protection of employees (part-time) work act 2001 provides:

9.—(1) Subject to subsection (2) and (4) and section 11 (2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

The Complainant submitted a complaint that she was treated less favourably that others in the employment when her name appeared on a wall chart that listed staff who had till shortages.  She also complained that she had to pay cash to the employer when drivers drove off without paying for their fuel.  While I have sympathy for the complaints the Complainant has, I have been presented with no prima facie evidence which would demonstrate that the Respondent had a case to answer in relation to the comparison of treatment.  The complaint is not well founded.

CA-00049334-015            Organisation of Working Time Act 1997

The Complainant submits that she was penalised for being unable to report for work in November 2021.  Section 26 of the Act provides:

26. (1) An employer shall not penalise or threaten penalisation of an employee for -

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

I find the Complainant did not meet any of the requirements in Section 26 and her complaint of penalisation is misconceived.  I find the complaint to be not well founded.

CA-00049334-016            Organisation of Working Time Act 1997

The Complainant contends that she was penalised for seeking time off during Christmas 2021.    

Section 20 of the Act provides:

• (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject –
• (a) To the employer taking into account –
• (i) The need for the employee to reconcile work and any family responsibilities,
• (ii) The opportunities for rest and recreation available to the employee…

I note the Complainant’s evidence that she was given the leave.  No case was presented that she was penalised for requesting the leave.  I find the complaint to be not well founded.

CA-00049334-017            Protection of Employees (Fixed-time) Work Act 2003

Having reviewed the written contract of employment for the Complainant, I find that she was not classified as a Fixed-term worker.  I find the complaint to be not well founded.

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-00049334-006            Protection of Employees (Part-time) Work Act 2001

Based on the evidence and findings I have decided that the complaint is not well founded.

CA-00049334-015            Organisation of Working Time Act 1997

Based on the evidence and findings I have decided that the complaint is not well founded.

CA-00049334-016            Organisation of Working Time Act 1997

Based on the evidence and findings I have decided that the complaint is not well founded.

CA-00049334-017            Protection of Employees (Fixed-time) Work Act 2003

Based on the evidence and findings I have decided that the complaint is not well founded.

Dated:   08th of August 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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