Complainant

Respondent

Parties

Slawomir  Skrzypiec

Six By Nico

Complainant

Respondent

Representatives

Self-Represented

Nicola Murphy of  Peninsula Business Services Ireland

Act

Complaint/Dispute 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-00064088-001

13/06/2024

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

CA-00064088-004

13/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00064088-005

13/06/2024

The issue in contention was the alleged Unfair Dismissal of an Assistant Manager by a large Restaurant.

The Unfair Dismissal issue was linked to Complaints under the Working Time Act,1997, The S, H & W Act, 2005 and the Protected Disclosures Act, 2014.

The employment began on the 9th October 2023 and ended on the 2nd May 2024.

The rate of pay was stated by the Complainant to have been €3,333 per month for an alleged 48 Hour week.

The Complainant was not represented but gave an oral testimony supported by written documentary evidence.

1:1        CA-00064088-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997.

The Complainant alleged that he never received Daily work breaks or adequate plus 11-hour breaks between Shifts. Roster record evidence was presented to support his contentions.

1:2        CA-00064088-004 - Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Complainant alleged that he had been Penalised for raising proper Health and Safety issues with Management – specifically the issue of alleged Physical assaults made to him and other staff by a Senior Colleague. 

The issues were ignored, and his dismissal was in effect a form of Management “retaliation” – a “penalisation” as specified in the Act.

1:3       CA-00064088-005 - Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

The Complainant alleged that he had made a number of “protected disclosures” to Senior Managers regarding the inappropriate behaviours of a Senior Staff member towards the Complainant and other more junior colleagues. The Disclosures had been ignored and he had been effectively Dismissed in Retaliation with no warnings or due HR process.

The Respondent was Represented by Ms N Murphy of Peninsula Business Services supported by Ms A McQueen ,Dublin HR, in Dublin and Ms P McQueen, Group Head of HR, attending Remotely from Glasgow. An extensive Written Submission was also relied on.

2:1        CA-00064088-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997 (OWT,1997)

The Respondent denied this complaint absolutely and provided a different interpretation of the Roster records supplied by the Complainant.

It was pointed out that the Complainant had been a Senior Manager responsible for his own breaks and was not required to “Log” his breaks on the Attendance System. The absence of Breaks for the Complainant on the System was clearly an effect of this.

 Section 3(1) c) of the Act was mentioned

Non-application of Act or provisions thereof.

3.—(1) Subject to subsection (4), this Act shall not apply to a member of the Garda Síochána or the Defence Forces =============

(c) a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.

The Complainant, it was claimed in oral Respondent testimony, was clearly covered by his section.

Furthermore, the Respondent pointed out that the “Cognisable” period for the complaint was the 13th December 2023 to the 13th June 2024 - date of WRC referral. Reliance on roster data prior to this period is excluded by the Act.

In addition, during his period of Employment the Complainant had never raised any issues regarding his working hours despite being quite familiar with raising other issues with HR and Senior Management.

2:2        CA-00064088-004 - Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Respondent denied absolutely that any “Protected Disclosures” as understood in the S, H & W Act, 2005 ever took place.  None of the issues raised regarding a colleague, the Chef ,Mr GW, would ever satisfy a reasonable definition as set out in the Act. Furthermore, the Respondent cited the now often referenced Labour Court “What if” causation test as set out in case Tony and Guy Blackrock Ltd v O’Neill [2010] ELR to support their contention that, even if there had been H&S “Disclosures” which were denied, there were no possible grounds for a Penalisation complaint.

2:3       CA-00064088-004 - Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

The Respondent cited the definition of “wrongdoing” under the Protected Disclosures Act,2014 to argue a position that any issues raised by the Complainant did not fall within the remit of “wrongdoing” as defined. The issues between the Complainant and the Chef on the 11th of April 2024, while completely unacceptable to the Management, fell more in the definition of Individual Grievances. The Respondent cited Section 30 of the Code of Practice on Protected Disclosures (Declaration order) of 2015 where the difference between a Grievance and a Protected Disclosure is discussed.

The Respondent cited further case law from Murphy and Regan, Employment Law, 2nd Edition  -Protected Disclosures to argue that, even if a Protected Disclosure had been made, which was denied, it would be impossible to link it to any Penalisation by way of a purported Unfair Dismissal.

CA: 00064088-001 -Working Time Act, CA:00064088-004 -Safety, Health and Welfare at Work Act,2005, CA-00064088-006 Protected Disclosures Act, 2014.

3:1      Legal considerations. – Primacy of Evidence.

It is important to note that these three complaints were essentially adjuncts to a linked Unfair Dismissal complaint being taken under the Industrial Relations Act,1969. The Complainant did not, at first reading, have the required employment service (12 months) to take a case under the Unfair Dismissals Act,1977

The Labour Court have repeatedly stated that evidence is primary in all cases. We have to review this case on this basis.

3:2        Review of the Evidence presented in both Oral and Written Form and Conclusions.

Regrettably in this case, having reviewed all the evidence presented, the Penalisation complaints under the S, H & W Act 2005 and the Protected Disclosures Act,2014 are in essence simply assertions not supported by sufficient hard evidence to sustain the complaints in the manner required by the Acts. The incidents on the 11th April 2024 were most undesirable but to now argue that in some way the Complainant’s complaints regarding his colleague were “Protected Disclosures” as defined in the Act, cannot be seen as sustainable on a pure evidential basis.

The Respondent relied on a substantial chain of Legal precedents to support his argument. (citing case law from Employment Law, 2nd Editon Murphy and Regan “Protected Disclosures” par 10.28.)

Furthermore, it was further argued, with some merit in the Adjudication view, that some of the issues labelled as “Disclosures” were, if pursued further, simply “Grievances” more proper to the Respondent Grievance Procedures.

Accordingly, the Adjudication view has to be that CA:00064088-004 -Safety, Health and Welfare at Work Act,2005, CA-00064088-006- Protected Disclosures Act, 2014 are not Legally “Well Founded” and must be deemed to fail on an evidential basis.

As regards CA: 00064088-001 -Working Time Act,1997 there was a major difference in Interpretation between the Parties as regards the Roster/Time/Attendance Records submitted.

The Respondent Managers were under Sworn oath as was the Complainant.

The key argument from the Adjudication viewpoint was the OWT,1997 Section 3(1) (c) exemption. The Manager or in this case the assistant Manager was effectively responsible for his own working hours, within the terms of his Contract of Employment. Difficulties in interpreting some of the examples quoted could only be seen in this context.

Accordingly, the Organisation of Working Time complaint lacks incontrovertible evidence and has to be seen as Legally Not Properly Founded.

It does not succeed.

Working Time, Safety, Health& Welfare and Organisation of Working Time; Penalisation.