Complainant

Respondent

Parties

Jessica  Sweeney

Bidvest Noonan (R OI) ltd amended on consent

Representatives

  Appeared In Person

Emily Maverley, IBEC Executive  

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997                         ( withdrawn at hearing)

CA-00063079-001

25/04/2024

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

CA-00063079-002

25/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00063079-004

25/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00063079-005

25/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 (withdrawn at hearing)

CA-00063079-006

25/04/2024

On 25 April 2024, the Complainant, a Cleaning Operative and a Lay Litigant submitted a number of complaints regarding her workplace.

CA-00063079-001 on Banded Hours, Organisation of Working Time Act, 1997

CA-00063079-002   Terms of Employment

CA-00063079-004 Minimum Notice

CA-00063079-005 Minimum Notice

CA-00063079-006 Minimum Notice

On 30 April 2024, the WRC acknowledged the complaints and requested further information on the complainant’s end date of employment.

The Respondent came on record through their Representative, IBEC on May 7, 2024.

Following one logistical reason for postponement, the parties were invited to hearing scheduled for 8 November 2024. The Parties were facilitated with a Remote hearing on application by the Respondents.

This hearing occurred in accordance with   Section 31 Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, as amended by section 91 Courts and Civil Law (Miscellaneous Provisions) Act 2023, where the WRC is deemed a designated body to conduct remote hearings.

The Complainant presented as a lay litigant and submitted a number of documents, but did not complete the requested written submission.

The Respondent was represented by Ms. Emily Maverly, IBEC who filed a comprehensive submission.

The Complainant availed of the affirmation to accompany her evidence.

At the commencement of the hearing and through a read through of the complaint form, clarifications were necessary on which complaints the complainant wanted to advance.

As a result, and following extensive discussion on the Preliminary Arguments made by the Respondent and my clarifications,

CA-00063079-001 on Banded Hours and CA-00063079-006 Minimum Notice were withdrawn by the Complainant. The Respondent consented.

 The Hearing progressed in a bid to reach decisions in:

CA-00063079-002   Terms of Employment

CA-00063079-004 Minimum Notice

CA-00063079-005 Minimum Notice

At the conclusion of the hearing, I requested sight of complainant pay slips. She agreed to forward these, but none were received.

The Respondent indicated that they were prepared to forward follow up pay slips.

The Complainant attached a completed ES1 form, which is a notification of a possible legal claim in relation to the provision of goods and services, Equal Status Act 200-2015. She accepted that this notification, dated 18 April 2024, was not applicable to the live claims before the WRC.

The Complainant has worked as a Cleaning Operative for the Respondent business since 1 December 2008. She continues to hold this position.

I sought pay slips to help me clarify the fortnightly pay, which was introduced on the compliant form as €1950 for a 30-hr. fortnight. The Respondent clarified that the Complainant is paid the ERO Contract Cleaning rate at 15 hours per week.

The Complainant wrote the details of her complaint as:

She wrote that she had been working for the company for over 16 years and had been verbally abused and shouted at before being left without work for 3 months and a protracted delay in receiving a reduced payment. When she recommenced work, she was constantly bullied by her manager. She contended that during a period of illness, she had been ignored by her managers.

Following her return to work, there was no improvement in this relationship, and she felt unsupported in dealing with a family matter.

The Complainant wrote that “she had never felt so unhappy in my job “and her health had suffered. She attached some inter party correspondence which placed some context to this.

The Complainant detailed that an interpersonal conflict with her immediate manager regarding her seeking annual leave in August 2023. She sought help and support from the Area Manager, who told her that she would deal with this, but didn’t.

The cleaning contract subsequently terminated with her manager being aware and the complainant felt caught in the middle between the host company and her employer when once again the Manager was critical of her.

The contract concluded on 29 September 2023. The Manager said he would be in contact with new work, but there was no contact. The Manager maintained that she had refused work, but this was false.

The Complainant wrote that she had tried to resolve the matter but was unsuccessful. She accepted a new cleaning placement early in 2024, but the tension continued.

The Complainant became ill, was hospitalised and has not returned to work.

She continues on sick leave. She wrote that she did not feel” safe or comfortable” working for the Respondent.

The Respondent objected by means of a preliminary argument to the lack of particulars contained on the complaint form in CA-00063079-002. Ms. Maverly argued this lack of particulars prejudiced the Respondent.

CA-00063079-002   Terms of Employment

I asked the Complainant to clarify her claim, and she explained that she had not been notified of a change to her terms of employment when her placement on Company A site came to a premature end in late September 2023.

I decided, in the interest of fairness, to hear this complaint in full and explained that if I found for her on this preliminary point, I would press on to record my decision on the substantive part of the complaint. If I found for the Respondent on that point, the claim would end there.

Evidence of the Complainant: Affirmation.

The Complainant outlined that she had worked as a Cleaning Operative at the business for 16 years.

It was her case that the Respondent had not notified her of her change of contract in September 2023.

The Complainant submitted that she had been laid off when the cleaning contract ended at Company A in September 2023. She did not exhibit a record of lay off and confirmed that she had not claimed Job Seekers Benefit (JSB).

She was roared at by her manager and she raised her dissatisfaction with a senior manager. He has been critical that Company A had not notified him of cessation of contract.

She was left without work and contacted central Human Resources on 31 October 2023.

She received payment for time lost and commenced work new work in January 2024, from wish she remains on sick leave,

During cross examination, she confirmed that she had been placed on the company A site long term and had local knowledge that the contract was coming to an end. She contacted her manager.

She was unsure on having been placed at risk of redundancy.

She confirmed that she had expected notice before the contract finished, and this was the complaint she had made.

In seeking a response to the Respondents point on the overarching mobility clause, the Complainant restated her claim.

CA-00063079-004 Minimum Notice

The Complainant submitted that she had not received her statutory period of notice on the termination of her employment or payment in lieu.

CA-00063079-005 Minimum Notice

The Complainant submitted that she had not received all her rights during the period of notice.

I spent some time with the complainant in seeking to ascertain if she had resigned or had her employment terminated by her employer. She confirmed the employment was live through an extended period of sick leave.  She carried a strong sense of injustice against her employer.

The Respondent operates a large Managed Services Company and has refuted all three claims made by the Complainant.

By way of background, the Respondent outlined that the Complainant had been placed on Company A site prior to its closure on 29 September 2023. It was the Respondent case that the complainant had been offered alternative work, but this was “declined due to hours “  

The Complainant had been redeployed in the past.

The Company reached out with alternative offers before the complainant was placed at risk of redundancy in November 2023.

On 7 November 2023, the Company representative met with the complainant. Six alternative work locations were offered with a plan to follow up.

The Complainant was reticent in terms of engagement and failed to attend any these follow up meetings and requested her contract of employment.

The Parties eventually met on 12 December 2023 and discuss possible locations for work. Agreement was reached to pay the complainant from 1 October 2023 to 7 November 2023 and paid on 21 December 2023.

The Complainant commenced a new work location on 15 January 2024, the weeks delay was due to pre booked medical appointments. She was paid from 2 January 2024.

The Respondent had an informal discussion with the Complainant on 13 March 2024 as issues had arisen on her timekeeping, contacting the client and use of mobile phone. An Account Manager was appointed to investigate this.

The Complainant has been absent from work.

18 March to 8 April and 24 April to 22 October 2024.

The Respondent acknowledged that the Complainant had filed a grievance dated 16 April 2024 and sought a letter from the Complainants GP which cleared her for participation in the process. This matter remains live.

CA-00063079-002   Terms of Employment

The Respondent disputed the claim and submitted that the complainant had been treated fairly and appropriately under Statute.

On a Preliminary argument, the Respondent objected to the lack of particulars to the narrative of the complaint submitted.

ISS ltd and Zhivko Mitsov DWT 1159

The Respondent exhibited a requested statement of terms of employment dated 1 December 2008. Ms. Maverly pointed to the mobility clause at clause 6:

“Flexibility to undertake other such work as may be assigned to you is required. Such work may be outside the area of your normal duties. The company also reserves the right to transfer you to other locations/contracts as necessary “

The Respondent argued that no contravention had occurred in Section 5 of the Act. The Complainant accepted details of her redeployment on 15 January 2024.

The Complainant had been at risk of redundancy until she commenced a new placement 200 metres from her previous office location.

The Complainant had not raised this matter internally prior to referral to the WRC.  She had redeployed within the business previously.

CA-00063079-004 Minimum Notice

The Respondent submitted that the Complainant lacks the locus standi (legal standing) on which to plead this complaint as she has not resigned or been subject to termination of employment. The Complainant continues in live employment, albeit on extended sick leave.

The claim is without merit.

CA-00063079-005 Minimum Notice

The Respondent submitted that the Complainant lacks the locus standi (legal standing) on which to plead this complaint as she has not resigned or been subject to termination of employment. The Complainant continues in live employment, albeit on extended sick leave.

The claim is without merit.

I have been requested to make three decisions in this case. In reaching my decisions, I have listened carefully to both Parties opening statements. I have read both Parties submitted documents, and I have considered the Complainants evidence and Respondent clarifications at hearing.

It is clear that both parties have attended hearing with completely different perspectives. For the Complainant, she continues on long term sick leave and carries a very strong viewpoint that she has been unfairly treated by her employer.

She has also raised a Dispute under the Industrial Act, which will be addressed separately.

The Respondents have approached this case with a very strong view that they have been fair with the Complainant and that she has absented herself in recent months leaving a Grievance unexplored for want of a Medically approved clearance for the Complainant to attend.

The Employment has now entered a very tense phase.

I make these comments as background to the overall case. I will now proceed to address the claims at hand.

CA-00063079-002   Terms of Employment

The Complainant has submitted that by the Respondents omission to notify her in writing of the changes in her work base in September 2023, that a contravention of the Act has occurred.

The Respondent disputes this and has argued that the complainant had redeployed on several occasions during her 2008 to 2023 tenure, which is referenced in the mobility clause at Clause 6 of the Terms of Employment, provided to the complainant at her own request during November 2023.

My jurisdiction in this matter is derived from Section 5 of the Act. In accordance with Section 41(6) of the Workplace Relations Act, 2015

 Section 41 (6) provides:

 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 the contravention to which the complaint relates.

The essence of the Complainants claim is that the Respondent did not notify her of the change in her work base when the Contract came to an unexpected end on September 29, 2023.

By her own admission, she had acquired local knowledge of this, which had not escalated to the Respondents attention.

Section 5 of the Terms of Employment (Information) Act, 1994 requires a written notification of terms consistent with the change of terms.

The Respondent has pleaded that no change occurred.

Notification of changes.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute , other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

I note the case law relied on by the Respondent emerges from the Organisation of Working Time Act, 1997 rather than the instant Act.

However, from a careful clarification, the complainant confirmed that her claim is set at the occurrence on 29 September 2023, that of the contract cessation.

This places the occurrence outside of the statutory time limit for this claim. The Complainant did not apply to extend this time limit in accordance with S. 41(8) of the Act.

I am mindful that the Complainant gave evidence that she was placed on lay off on the date of 29 Sept 2023. Neither Party exhibited an RP 9 or corresponding letter to prove this.

I am obliged to find that the claim is outside of the statutory time limits allowed.

 The occurrence at the centre of the claim occurred outside of the period permitted i.e.  26 October 2023 and date of complaint to the WRC of 25 April 2024.

I note the level of dissatisfaction noted in this claim is subject to a live grievance in the workplace lodged one week before this claim was received by the WRC.

I do not have jurisdiction to take this matter further. The claim is out of time.

The claim is not well founded.

CA-00063079-004 Minimum Notice

Section 12(1) of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in relation to Section 4 of that Act.

The complainant is mistaken that a cessation of a contract cleaning work placement within a live employment permits her access to the protections of Section 4 of the Act, reserved for instances of termination of employment.

I did ask the Complainant if she had taken advice prior to submitting her complaint. She continued to hold the view that she could rely on the protections of this Section reserved for leavers.

I find that this is a situation, where I must consider the provisions of Section 42(1) of the Workplace Relations Act, 2015 on dismissal of the claim.

42. (1) An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious.

(2) (a) A person whose complaint or dispute is dismissed in accordance with this section may, not later than 42 days from its dismissal, appeal the dismissal to the Labour Court.

(b) A person shall, when bringing an appeal under this subsection, give notice to the Commission in writing of the bringing of the appeal.

(c) A notice referred to in paragraph (b) shall specify the grounds upon which the appeal is brought.

This claim is misconceived and has no chance of success within a mutually agreed live employment, not disturbed by resignation or termination.

I dismiss the claim as frivolous and vexatious.

CA-00063079-005 Minimum Notice

Section 12(1) of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in relation to Section 5 of that Act.

The complainant is mistaken that a cessation of a contract cleaning work placement within a live employment permits her access to the protections of Section 5 of the Act, (right during notice period) reserved for instances of termination of employment.

I did ask the Complainant if she had taken advice prior to submitting her complaint.? She continued to hold the view that she could rely on the protections of this Section reserved for leavers.

I find that this is a situation, where I must consider the provisions of Section 42(1) of the Workplace Relations Act, 2015 on dismissal of the claim.

42. (1) An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious.

(2) (a) A person whose complaint or dispute is dismissed in accordance with this section may, not later than 42 days from its dismissal, appeal the dismissal to the Labour Court.

(b) A person shall, when bringing an appeal under this subsection, give notice to the Commission in writing of the bringing of the appeal.

(c) A notice referred to in paragraph (b) shall specify the grounds upon which the appeal is brought.

This claim is misconceived and has no chance of success within a mutually agreed live employment, not disturbed by resignation or termination.

I dismiss the claim as frivolous and vexatious.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00063079-002   Terms of Employment

Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in accordance with section 5 of that Act.

I find I lack the jurisdiction to decide this complaint as the complaint was received outside of the permitted statutory time limits. The claim Is not well founded.

CA-00063079-004 Minimum Notice

Section 12(1) of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in relation to Section 4 of that Act.

This claim is misconceived and has no chance of success within a mutually agreed live employment, not disturbed by resignation or termination.

I dismiss the claim as frivolous and vexatious.

CA-00063079-005 Minimum Notice

Section 12(1) of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in relation to Section 5 of that Act.

This claim is misconceived and has no chance of success within a mutually agreed live employment, not disturbed by resignation or termination.

I dismiss the claim as frivolous and vexatious.

Terms of Employment / Minimum Notice