ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040408
Parties:
| Complainant | Respondent |
Parties | Tom Lacey | Doreen O’Donoghue trading as Banks Pharmacy |
Representatives | Self | Self |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00051701-001 | 14/07/2022 |
Date of Adjudication Hearing: 24/06/2024
Workplace Relations Commission Adjudication Officer: Michael MacNamee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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.
At the adjudication hearing, the parties were advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in by way of affirmation. Both parties were offered the opportunity to cross-examine.
The matter was listed for hearing before me on the 24th of June 2024 (having been adjourned from a previous date) at the offices of the Workplace Relations Commission in Lansdowne House, Dublin. Both parties appeared, representing themselves.
Background:
The Complainant, a qualified pharmacist, was employed by the Respondent, a retail pharmacy owned by Ms. Doreen O’Donoghue, initially as a locum and thereafter as an employee, since in or about 2010 - albeit that the Complainant’s start date and the capacity in which he worked initially and subsequently were not agreed. The Complainant sought written terms of employment pursuant to the Terms of Employment (Information) Acts 1994-2014 (hereafter referred to as “The Acts”) on the 30th of April 2022. He did not receive written terms until the 24th of January 2023 and when he did, he alleged that the terms set out were not reflective of the terms and conditions which he worked and had always worked. The Complainant resigned from his employment on the 29th of September 2023. He sought relief for an alleged breach of the Acts by the Respondent. |
Summary of Complainant’s Case:
In his complainant form, received by the Workplace Relations Commission on the 14th of July 2022 the Complainant submitted as follows: I have worked in this pharmacy for close to ten years. Always set days. Initially it was 2 days per week, then 3 days a week. I have been working 3 days a week, every week for the last few years---Set days (Tuesday, Wednesday, Thursday). I am paid weekly into my bank account by her accountant. My pay has PAYE, PRSI, USC docked, and I am given a net wage. My PRSI code is A1 and I have my tax credits assigned to this employment. I have been paid bank holiday entitlements the last few years (although this was not always the case). I receive 12 days paid holidays every year. I consider myself an employee. I requested terms and conditions of employment by email on 30/4/2022. I got no reply. I asked again on 20/5/22 and 27/5/22. My boss said on 27/5/22 that she did not think I was entitled to them as she considered me a "locum”. I told her on 20/5/22 I was legally entitled to terms and conditions of employment as I was an employee. On 31/5/22 said this was not her understanding but would check it out and get back to me. No reply so I messaged her on 10/6/22 regarding terms and conditions. Messaged again on 13,17,18 June. Eventually spoke to me on 22/6/22. She essentially said she was refusing me terms and conditions of employment as I was not employed by her. She considers me a free agent, a locum. On 7/7/22 I again asked for terms and conditions of employment which I am legally entitled to under the Terms of Employment (Information) Act 1994, or I would refer the matter to the Workplace Relations Commissions in 5 working days. I got no reply. I also referred the matter to SCOPE to investigate my employment status and notified her of this. The matter first came on for adjudication hearing on the 10th of March 2023 but was adjourned to facilitate discussions between the parties regarding issues which were outside the scope of the complaint raised. The matter was then relisted for the 24th of June 2024 the Complainant having resigned on the 29th of September 2023. The Complainant made further submissions and gave evidence on affirmation at the hearing, and he was afforded an opportunity to challenge the submissions and evidence given by the Respondent. These submissions and evidence are discussed in the findings below. |
Summary of Respondent’s Case:
Ms. Doreen O’Donoghue is the sole proprietor of the Respondent which is a sole tradership retail pharmacy. Prior to the first adjudication hearing the Respondent, through her solicitor, provided a written submission dated the 10th of February 2023. The main points made were: The Complainant started work for the Respondent in 2010 as a locum pharmacist. Ms. O’Donoghue registered the Complainant for income tax in November 2012 in accordance with a Revenue direction and it was her responsibility to ensure that tax and PRSI were paid for locums. The Complainant was advised of this at the time. The Respondent understood that the locum arrangement suited the Complainant who worked for other pharmacies as well. The Respondent offered the Complainant a full-time position as an employee pharmacist in February 2022 which he declined. The first request for terms and conditions of employment was made in April 2022. A contract which was fully in compliance with the Acts was furnished on the 24th of January 2023. However, the Complainant would did sign the contract as he wanted to have his solicitor review it. He did not agree with the start date set out in the contract which was the 6th of January 2015 on the basis that the Respondent registered him as a locum in November of 2012. The Respondent was prepared to accept that from January 2015 onwards the Complainant’s employment was capable of being regarded as that of an employee although it was the Respondent’s understanding that he remained a locum at all times. While acknowledging that the Complainant was not provided with written terms and conditions of employment in January 2015, the Respondent contended that the Complainant was fully aware of all terms and conditions under which he worked. He received his full entitlements and was not prejudiced in any way by the fact that he did not receive written terms. Notwithstanding the foregoing issues as identified by the Respondent, she paid the Complainant the sum of €2,520 representing 3 week’s pay as compensation in respect of his complaint under the Acts which, it was contended, was entirely just and equitable having regard to all of the circumstances. Following the delivery of the above written submission, the Respondent provided an update dated the 8th of March 2023 immediately prior to the initial hearing on the 10th of March 2023. This communication confirmed a correction to the contract terms in accordance with an error pointed out by the Complainant which was accepted by the Respondent. The communication also stated: “Mr. Lacey has raised a number of queries in relation to his contract of employment and I am engaging with him in respect of these. The contract that has been issued to him accurately reflects the terms and conditions under which he works.” The previous payment of 3 week’s remuneration was restated. At the hearing on the 24th of June 2024, the Respondent made further submissions and gave evidence on affirmation and she was afforded an opportunity to challenge the submissions and evidence given by the Respondent. These submissions and evidence are discussed in the findings below. |
Findings and Conclusions:
Although a detailed submission and an update to same were provided by the Respondent prior to the initial hearing in March 2023, The Respondent did not appear at the hearing. The Complainant did appear and expressed his concerns regarding the delay in furnishing him with a contract but also, he sought to resolve the issues arising from the contract which was (belatedly) furnished to him. Noting the content of the Respondent’s submission and in particular the fact that three weeks remuneration had been paid to the Complainant and the fact that the Respondent had indicated that she was engaging with the Complainant in respect of the queries (as she put it), I adjourned the matter to facilitate further engagement. However, by the 24th of June 2024 when the hearing was relisted and both parties attended, the Complainant had left the Respondent’s employment, having resigned on the 21st of September 2023. The Complainant said that following the first hearing his work conditions deteriorated. He was under increased pressure when another staff member (a technician) was out sick which increased the waiting times in the pharmacy. He said that Ms. O’Donoghue pestered him to sign the contract and that he felt harassed and bullied. In April 2024 He raised a complaint in relation to his workload and he included a complaint in relation to his contract. He then took certified sick-leave which he said was due to stress. He said that the Respondent engaged with him some weeks later regarding the contract but still agreement could not be reached. The issues related to the place of employment, the days which were to be worked and the area of responsibility all of which terms (as they were drafted in the contract) he objected to. He never signed the contract and persistently refused to do so. He eventually resigned due to stress and the working conditions. He complained that he had to wait nine months to get a contract and when he got it, he did not agree with it but yet he was pestered about signing it. Mr. O’Donoghue in her evidence said that she was trying to negotiate with the Complainant in the context of her intention to step back from the business. This was why she invited the Complainant to go full-time. The clauses to which he had objection were normal and were designed only to cover unusual eventualities which is why she did not want to remove them from the contract. She was surprised to hear the Complaint say that he resigned due to his working conditions and his contract which was the first time she had heard this. She said that she always worked with the Complainant when the pharmacy was short-staffed. She said that he had asked her for an increase in pay but as the business was decreasing, she refused. She said that the Complainant said that if he did not get a wage increase, he would leave, and this was the Respondent’s understanding of the reason why he did so. She re-iterated the reasons for the failure to issue a contract as per her submission and she pointed to the fact that she had paid three week’s pay to the Complainant for the failure to provide him with a written terms of employment. Section 3(1) of the Act (as amended) provides that, “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” Section 3 A (as inserted by reg.6 of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (S.I. No. 686 of 2022)) provides that A statement furnished by an employer under section 3,4, 5,6, 6E or 6F shall be— (a) signed and dated by or on behalf of the employer, (b) in writing, and (c) transmitted on paper or, provided that the information is accessible to the employee, that it can be stored and printed, and that the employer retains proof of transmission or receipt, in electronic form. It was accepted by the Respondent that she did not furnish written terms to the Complainant within the time prescribed by the Acts. It was also agreed that the Complainant received compensation of three week’s pay. However, the Complainant did complain that there was a nine-month delay in issuing the contract. Turning to the issues which the Complainant raised for the first time at the hearing, it should firstly be noted that these issues were not included in the submission with the initiating complaint form as they had arisen after the claim form was submitted and after the first hearing in March 2023. Nonetheless it is the case that the evidence which was given was not flagged in advance of the hearing on the 24th of June 2024 and it took the Respondent by surprise. However, for the sake of completeness and even though this provision was not specifically invoked by the Complainant, I have considered whether the oral evidence is such as to give rise to a case of penalisation in accordance with Section 6C of the Acts Section 6C (1) prohibits penalisation ads follows: (1) An employer shall not penalise or threaten penalisation of a 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. Section 6C subsection (5) defines “penalisation” as “any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes— (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation.” I am not satisfied that the evidence presented to me comes within the above definition. The only limb of the definition of penalisation that could be applicable is paragraph (e) “coercion or intimidation” and there is insufficient evidence that the Respondent’s actions of “pestering” the Complainant (as so described) into signing the contract constitute any more than her attempt to try to engage with the Complainant to reach agreement on the content of the contract and I find that such actions fall short of reaching the threshold of coercion or intimidation. It is evident that the contract, once it was issued, caused the parties to be in conflict over its terms which could not be agreed. I have no jurisdiction to rule on the content of the contract, but I can rule on whether there was a delay in issuing it and in this case there undoubtedly was a delay. By her own admission the Respondent should have provided the contract sooner. On her case this should have been back in 2015. Had the contract been issued sooner, i.e. at least in 2015 if not before then, then the opportunity would have arisen for the parties to negotiate regarding its terms rather than to let the issue slide as it did for another eight years. In this regard, given what happened when the contract was issued, the delay did not help the situation, and I accept that it was the source of stress for the Complainant. For this reason, I deem it just and equitable that the Complainant receive a further week’s pay on top of the three weeks already paid by the Respondent in recognition of the stress and inconvenience he sustained due to the delay in furnishing the contract to him. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00051701-001 I declare this complaint to be well-founded. I direct the Respondent to pay the Complainant compensation of €840 (being the equivalent of one week’s pay) which I find just and equitable having regard to all the circumstances. The said sum is payable by way of compensation for breach of the Complainant’s statutory rights should not be taxed.
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Dated: 7th August 2024
Workplace Relations Commission Adjudication Officer: Michael MacNamee
Key Words:
Terms of Employment (Information) Acts 1994-2014 – Sections (3) and (6C) |