Complainant

Respondent

Anonymised Parties

Cashier

Casino

Representatives

Self-Represented

Mr. William Wall Peninsula Business Services (Ireland) Limited

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056348-001

26/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00056348-002

26/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056348-003

26/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056348-004

26/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056348-005

26/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056348-006

26/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00056348-007

26/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00056348-008

26/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00056348-009

26/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00056348-010

26/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00056348-011

26/04/2023

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

CA-00056348-012

26/04/2023

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

CA-00056348-013

26/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00056348-014

26/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00056348-015

26/04/2023

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

CA-00056348-016

26/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00056348-018

26/04/2023

The Complainant commenced employment with the Respondent on 10th September 2018. The Complainant’s hours were variable during his employment, however it is common case that he received a payment of €10.10 for each hour worked. The Complainant remains an employee of the Respondent, albeit subject to an extended period of suspension.

On 26th April 2023, the Complainant referred numerous complaints to the Commission. Herein, he alleged that the Respondent had breached several statutory obligations, particularly under the Organisation of Working Time Act, and penalised him for seeking to enforce his rights under Health and Safety legislation. While the Respondent conceded some of the complaints raised by the Complainant, they submitted that many of the alleged breaches did not occur within the cognisable period for the purposes of the impleaded Act. They further submitted that the complaint of penalisation was misconceived and could not succeed.

A hearing in relation to this matter was convened for, and finalised on, 27th November 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. The Complainant gave evidence in support of his complains, while a Managing Director gave evidence in defense. The complaint form, as received, contained a brief outline of the Complainant’s case, while the Respondent issued a submission in advance of the hearing. All evidence was given under oath or affirmation, and was opened to cross examination by the opposing side.

In circumstances whereby the decision below will make reference to a serious, and unsubstantiated, allegation against the Complainant, I have utilised my discretion to anonymise the decision in its published form.

Various issues as to my jurisdiction to hear several of the complaints were raised at the outset of the proceedings. These will be discussed individually below.   

The Complainant submitted that he commenced employment with the Respondent as a cashier in one of their casinos. At the outset of his employment, the Complainant submitted that he worked n average of 24 hours per week, mostly accrued over the weekends and some evenings. The Complainant submitted that his hours became more variable following the outbreak of the Covid-19 pandemic and in 2021, he secured alternative employment. When the Complainant informed the Respondent of this development, he was asked to remain on a part-time basis, given that relations between the parties were positive at this stage, the Complainant agreed to the same, usually working one weekend shift per week.

In August 2022, the Complainant resigned his other employment. The Complainant took this action as he was given to understand that he would receive full time hours in his employment with the Respondent. Despite the same, the Complainant continued to be scheduled for no more than ten hours per week.

On 27th August 2022, the Complainant was informed that one of the customers of the Respondent had raised an allegation of sexual harassment against him. Shortly thereafter, on 1st September 2022, the Managing Director of the Respondent contracted the Complainant by phone. During this conversation, the Managing Director of the Respondent advised that the customer in question had gone to the police in respect of the complaint, and that the Complainant would have to be placed on suspension. Approximately one week later, the Complainant met with the Managing Director in person. During this conversation, the Managing Director advised that the Complainant would be paid whilst on suspension and that he intended on speaking with the relevant Garda in relation to the matter.

Naturally, this sequence of events caused the Complainant a great deal of stress and anxiety. In the absence of any further response from the Managing Director, the Complainant attended the Garda station himself on 22nd October 2022 to determine the status of the investigation. At this point, the Complainant was informed that no such investigation was underway. Following the receipt of this information, the Complainant attempted to speak with the Managing Director, however his calls went unanswered. On 7th November 2022, the Complainant wrote to the Respondent requesting that the nature of the allegation against him be outlined and the relevant disciplinary procedure be produced. Following a series of unanswered emails seeking an update in relation to these matters, the Complainant referred the present set of complainants to the Commission.

By submission, the Complainant alleged that he had been treated appallingly by the Respondent. He submitted that aside from the Respondent’s failure to provide written terms of employment, they persistently failed to observe the Complainant’s statutory rights regarding working time. The Complainant further submitted that the Respondent suspended the Complainant without providing him with the nature of the allegation against him and without progressing any form of investigation. The Complainant further submitted that the Respondent kept the Complainant on paid suspension for an extraordinary period of time, leaving him in a form of limbo in respect of his ongoing employment.

In answer to a question posed in cross-examination, the Complainant accepted that he sent an inappropriate message to a customer of the Respondents. Notwithstanding the same, the Complainant submitted that this was discussed with the customer in question and occurred as a result of the friendly relationship between the parties.

In evidence, the Managing Director of the Respondent accepted that the parties were in discussion with the Complainant regarding a permanent role, however they submitted that no formal offer had been made in respect of the same and that the Complainant continued to work on an “as and when” basis. In his regard, the Respondent submitted that the Complainant would advise when he was available for work, usually on a Sunday, and would occasionally cover shifts for other employees. In this regard, the Managing Director denied that he Complainant usually worked 30 hours per week but conceded that the Complainant would, on occasion, work in excess of ten hours per week. 

In August of 2022, the Managing Director of the Respondent became aware of a complaint issued by a customer of the casino. In this regard, the customer alleged that the Complainant sent her a highly inappropriate video message. While the Managing Director asked for a statement in this regard, the customer in question advised that she intended to go to the Gardaí. Following taking some advice on the matter, the Managing Director placed the Complainant on a period of suspension whilst the Gardaí investigated the matter. While the Complainant was initially paid for thirty hours during the initial part of the suspension, the was reduced to 10 hours. In evidence, the Managing Director stated that was calculated on the basis of the Complainant’s standard ten-hour shift, as opposed to the variable hours he occasionally received. Regarding the length of the suspension, the Managing Director submitted that this occurred as he did not receive positive confirmation from the Gardaí that the matter was no longer being investigated. Thereafter, the Respondent submitted that they sought to mediate with the Complainant regarding these matters, however the same did not serve to resolve the issues. Following the same, given that the present set of complaints had been referred to the Commission, and no further action was taken until the same were called for hearing.

By submission, the Respondent conceded some of the statutory complaints referred by the Complainant. In this regard, the Respondent accepted that the Complainant did not receive a Sunday payment and did not receive a contract of employment. Nonetheless, the Respondent submitted that throughout the cognisant period for the purposes of the present complaint, the Complainant was on a period of paid suspension. As a consequence of the same, they submitted that no breach of the Organisation of Working Time Act occurred in this regard. In addition to the foregoing, the Respondent denied that the Complainant raised complaint in relation to health and safety and, as a consequence, he could not have been penalised on foot of the same.  

In the present case, the factual matrix presented by the parties relates to the Complainant being placed on a period of extended suspension following the receipt of a complaint raised by a customer of the Respondent. In this regard, while the Complainant alleged that the Respondent was in breach of various statutory provisions in relation to his conditions of employment, the substantive complaint alleges that this suspension, and the Respondent’s failure to abide by any form of agreed procedure in respect of the same, arose as penalisation for attempting to enforce his rights under health and safety legislation. While the Respondent accepted that the Complainant was placed on a period of extended suspension, and they conceded many of the statutory complaints raised by the Complainant, they absolutely denied that the same arose by virtue of any form of penalisation.

In this regard, Section 27 of the Act provides for protection for employees against penalisation by their employer. Regarding the standard of proof for such complaints, in the matter of Toni & Guy Blackrock Limited -v- Paul O’Neill HSD095 the Labour Court characterised the relevant test as follow,

“Thus the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety.  It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal.  If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.”

The Court went on to state that,

“Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act.  This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered detriment.  This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

Having regard to the foregoing, in order for the present complaint to be deemed to be well-founded, the Complainant must establish each point of the following tripartite test:

1.       Did the Complainant raise complaints regarding health and safety as defined by the Act?

2.       Did the Complainant suffer a detriment as defined by the Act?

3.       Can the Complainant establish a causal link between the detriment suffered and the complaint raised?

Having regard to the first part of the test outlined above, the Respondent denied that the Complainant raised any complaint regarding his health and safety in the course of his employment. Having reviewed the correspondence opened by the Complainant in the course of the hearing, it is apparent that on 11th October 2022, the Complainant raised various issued regarding the Respondent’s allegation failure to abide by the provisions of the Organisation of Working Time Act, including a failure to provide breaks and a failure to provide notice in respect of the Complainant’s changing shift pattern.

In this regard, it is noted that Section 27(3) of the Act provides as follows,

“An employer shall not penalise or threaten penalisation against an employee for—

…

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work”

In this respect it is noted that the long title of the Organisation of Working Time Act, describes the same as making provisions for “the protection of health and safety of employees”. The matters complained of by the Complainant, in particular relating to the provision of rest breaks and the correct notification of hours, are expressly referred to as health and safety concerns in the relevant legislation. Having regard to the foregoing, I find that the Complainant did make a complaint in relation to health and safety issues and, consequently, he has established the first part of the test. 

Regarding the detriment suffered, Section 27(2)(a) expressly lists “suspension, lay-off or dismissal” as detriments that may give rise to a complaint of penalisation. In circumstances whereby the Complainant was placed on suspension, and remained so for extraordinary period of time, I find that he has met the second part of the test outlined above.

Regarding the final part of the test outlined a number of issues arise for the Complainant. As outlined above, the Complainant must demonstrate that “but for” making the complaint, he would not have suffered the detriment in question. In this regard, it is common case that the correspondence referred to above post dates the imposition of the suspension and, as a natural consequence of the same, cannot be said to be an operative factor in this regard. While the correspondence does state “I have talked about these complaints many times before, now I am putting them in writing”, it has not been established that the suspension arose of as consequence of the former, informal raising of the issues. Finally, the evidence of the witness of the Respondent was that the Complainant was suspended following an allegation from one of his customers that he shared an inappropriate message with her. In circumstances whereby the Complainant accepted that this occurred, his suspension pending a fulsome investigation into the surrounding circumstances was clearly warranted. While numerous issues arise in respect of the manner by which the Respondent handled matters thereafter, these cannot be attributed to the issues raised by the Complainant some time following the imposition of the suspension.

Having regard to the foregoing, I find that the Complainant has not established a causal link between the complaint referred by him and the detriment suffered. Having regard to the foregoing, I find that the Complainant was not penalised within the definition of the Safety, Health and Welfare at Work Act, and the complaint referred under this legislation is deemed to be not well-founded.

CA-00056348-001 – Complaint under the Organisation of Working Time Act

Regarding this particular complaint, the Complainant has alleged that he was not provided with appropriate compensation for working on a Sunday.

Having regard to the date of referral of the complaint, the cognisant period for the purposes of the same is 26th October 2022 – 26th April 2023. In circumstances whereby it is common case that the Complainant did not work on a Sunday during this period, I find that this complaint is not well-founded.

CA-00056348-002 – Complaint under the Payment of Wages Act

In relation to this complaint, the Complainant has alleged that he Respondent made an illegal deduction from his wages, in this respect he submitted whilst on paid suspension, he did not receive his full salary. In denying this complaint, the Respondent submitted that the Complainant received payment for his standard weekly hours whilst on suspension, but was not paid for any additional hours he may have occasionally completed.

In this regard, it is noted that there is no written contract between the parties that might provide some guidance in relation to the Complainant’s entitlements in this regard. Notwithstanding the same, it is common case that the present role was the Complainant’s second employment until just prior to his suspension. In this regard, it is accepted that the Complainant was not in receipt of full-time hours prior to the suspension, and that his normal hours at this time were paid during the period of suspension.

Having regard to the foregoing, I find that the complaint is not well-founded.

CA-00056348-003 – Complaint under the Organisation of Working Time Act

The Complainant alleged that he did not receive a daily rest period, in contravention of the Act. As outlined above, the Complainant was on paid suspension throughout the relevant period for the purposes of the present Act. Having regard to the foregoing, I find that the complaint is not well-founded.

CA-00056348-004 – Complaint under the Organisation of Working Time Act

The Complainant alleged that he did not receive breaks, in contravention of the Act. As outlined above, the Complainant was on paid suspension throughout the relevant period for the purposes of the present Act. Having regard to the foregoing, I find that the complaint is not well-founded.

CA-00056348-005 – Complaint under the Organisation of Working Time Act

The Complainant alleged that he did not receive payment for public holidays, in contravention of the Act. Having regard to the cognisant period of the present complaint, it is apparent that four public holidays occurred within the same. As the Complainant received no additional payment, or remuneration of any description for these dates, I find that the complaint is well-founded.

Regarding compensation, I find that the Complainant is entitled to €93.60 in respect of unpaid entitlements and a further €500 in compensation. For the avoidance of doubt, the total award in relation to this complaint is €593.60.

CA-00056348-006 – Complaint under the Organisation of Working Time Act

The Complainant alleged that he was not informed of starting and finishing times, in contravention of the Act. As outlined above, the Complainant was on paid suspension throughout the relevant period for the purposes of the present Act. Having regard to the foregoing, I find that the complaint is not well-founded.

CA-00056348-007 – Complaint under the Organisation of Working Time Act

The Complainant alleged that he was not informed of additional working hours, in contravention of the Act. As outlined above, the Complainant was on paid suspension throughout the relevant period for the purposes of the present Act. Having regard to the foregoing, I find that the complaint is not well-founded.

CA-00056348-008 – Complaint under the Industrial Relations Act 1946

Regarding this particular complaint, the Complainant has alleged that the Respondent failed to abide the terms of the relevant Employment Regulation Order. As it is common case that no registered ERO is application to the present matter, I find that this complaint is not well-founded.

CA-00056348-009 – Complaint under the Industrial Relations Act 1946

Regarding this particular complaint, the Complainant has alleged that the Respondent failed to abide the terms of the relevant Employment Regulation Order. As it is common case that no registered ERO is application to the present matter, I find that this complaint is not well-founded.

CA-00056348-0010 – Complaint under the Industrial Relations Act 1946

Regarding this particular complaint, the Complainant has alleged that the Respondent failed to abide the terms of the relevant Employment Regulation Order. As it is common case that no registered ERO is application to the present matter, I find that this complaint is not well-founded.

CA-00056348-011 – Complaint under the Industrial Relations Act 1946

Regarding this particular complaint, the Complainant has alleged that the Respondent failed to abide the terms of the relevant Employment Regulation Order. As it is common case that no registered ERO is application to the present matter, I find that this complaint is not well-founded.

CA-00056348-012 – Complaint under the Terms of Employment (Information) Act

Regarding this particular complaint, the Complainant alleged that he did not receive a statement of terms of employment at any stage of his engagement. During the hearing the Respondent conceded this complaint and confirmed that this was the case. Having regard to the foregoing, I find that the complaint is well-founded, and consequently the Complainant’s application succeeds.

Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks’ remuneration in respect of breach of the Act. Having regard to the totality of the evidence presented, I award the Complainant the sum of €468.00, or four week’s remuneration, in compensation.

CA-00056348-013 – Complaint under the Terms of Employment (Information) Act

This complaint is a duplicate of the matter listed above. As a consequence of the same, I find that the complaint is not well-founded.

CA-00056348-014 – Complaint under the Industrial Relations Act 1946

Regarding this particular complaint, the Complainant has alleged that the Respondent failed to abide the terms of the relevant Employment Regulation Order. As it is common case that no registered ERO is application to the present matter, I find that this complaint is not well-founded.

CA-00056348-015 – Complaint under the Industrial Relations (Amendment )Act 2005

Regarding this particular complaint, the Complainant has alleged that the Respondent failed to abide the terms of the relevant Employment Regulation Order. As it is common case that no registered SEO is application to the present matter, I find that this complaint is not well-founded.

CA-00056348-016 – Complaint under the Terms of Employment (Information) Act  

This complaint is a duplicate of the matter listed above. As a consequence of the same, I find that the complaint is not well-founded.

CA-00056348-018 – Complaint under the Safety, Health and Welfare at Work Act

I find that the complaint is not well-founded.

Penalisation, Health and Safety, Organisation of Working Time Act