DWT2417

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00041401 (CA-00052456-005)

BACKGROUND:

The Worker referred his case to the Labour Court on 12 October 2023, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 4 April 2024. The following is the Decision of the Court:

DECISION:

This matter comes before the Court as an appeal of a decision of an Adjudication Officer given under the Organisation of Working Time Act, 1997 (the Act) in a complaint made by Cliona Tracey nee Flood (the Complainant) against her former employer Affinity Plus T/a Affinity Plus Home Support Limited Aka Affinity Plus Homecare Limited (the Respondent).

The hearing of the Court

The Complainant and a range of individuals apparently intending to represent the Respondent, were present in the Court room at the commencement of proceedings on the day of the hearing of the Court.

Prior to the commencement of proceedings, the group of people apparently attending to represent the Respondent became aware that the Workplace Relations Commission had issued a ‘correcting order’ amending the name of the employer as carried on the original decision of the Adjudication Officer. The group of people stated that they had no knowledge that a correcting order had been sought by the worker, or that the request had been considered by the adjudication officer or that a correcting order had been made by the Adjudication Officer.

A copy of the correcting order was provided to the group of people. The representative of the group of people then stated that, whereas they had attended the hearing to represent the entity named on the original decision of the Adjudication Officer, they were not representative of the legal entity identified in the corrected decision of the Adjudication Officer. They withdrew from the hearing and withdrew any written submission which had earlier been made to the Court by them.

The Court therefore heard from the Complainant but did not hear from then Respondent in the matter.

Relevant law

The Act at Section 26 makes provision as follows:

Refusal by an employee to co-operate with employer in breaching Act

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.

(2) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

(3) In proceedings under Part 4 of the Workplace Relations Act 2015 in relation to a complaint of a failure to comply with subsection (1) it shall be presumed until the contrary is proved that the employee concerned has acted reasonably and in good faith in forming the opinion and making the communication concerned.

(4) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of that penalisation both under this Act and under those Acts.

(5) In this section "penalisation" means 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.

Summary submission of the Complainant

The Complainant submitted that she had, on 2nd August 2022 and previously, indicated to the Respondent that she wished to raise issues as regards the failure of the Respondent to comply with Section 11 of the Act. She submitted that she was penalised by the Respondent as a result.

She submitted an e-mail of 2nd August 2022 which referred to ‘scheduling’ as an item to be discussed and also a mail from her to the Respondent at around the same time wherein she mentioned the ‘Working Time Directive’ amongst a range of issues which she said had gone unaddressed. Similarly, she referred to a minute of a meeting between her and staff of the Respondent on 5th August 2022 relating to apparent disciplinary proceedings under way at that time which records a statement from her that she felt that she had been ‘let go’ prior to that date, and a statement from her that she had made contact with the Workplace Relations Commission and that she would see the Respondent there. She proffered these documents as establishing that the Respondent was aware of her exercising or having proposed to exercise her rights under the Act.

She submitted that these records, when taken together, established that she had exercised her rights under the Act. She submitted that this action was the reason for the decision of the Respondent to dismiss her.

She submitted that three allegations put to her by the Respondent as regards alleged misconduct and misrepresentation and which the Respondent stated were the reason for the decision to terminate her employment were not in fact the reason for her dismissal. The Respondent informed her by letter dated 11th August 2022 of the termination of her employment.

Discussion and conclusion.

The Court was deprived of either a written or oral submission or evidence from the Respondent in the matter. The Respondent to the original decision of the Adjudication Officer did provide a written submission in advance of the hearing of the Court and did attend the hearing. That Respondent, for the reasons set out earlier, withdrew from the hearing and withdrew any written submission which had been tendered in advance.

The Appellant has submitted that the reason which had been given to her by the Respondent for the termination of her employment was not in fact the reason for the termination. She submitted that representations she had made as regards her concerns in relation to the protections of the Act to which she is entitled, amongst a range of other concerns, were responded to by the Respondent by the creation a disciplinary issue relating to three alleged incidents and a consequent procedure which resulted in the termination of her employment.

In the absence of the Respondent, the Court has no basis to gainsay the submission of the Appellant and concludes, on the balance of probability, that her assertions are correct.

Having reached that conclusion the Court must conclude that the termination of the employment of the Appellant constituted penalisation contrary to the Act at Section 26.

Decision

The Court decides that the Respondent dismissed the Appellant in response to her invocation of a right conferred on her by the Act and that her dismissal constituted penalisation within the meaning of the Act at Section 26.

The Court decides that the Respondent should make a payment of €5,000 to the Appellant, being compensation of such amount as the Court considers just and equitable having regard to all of the circumstances.

The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
SOC	______________________
09 May 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Sinéad O'Connor, Court Secretary.