Worker

Employer

Anonymised Parties

A Cleaner

A Contract Cleaning Company

Representatives

Not represented 

Brian Kavanagh, IBEC

Act

Dispute Reference No.

Date of Receipt

Grievance seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002872

17/07/2024

Grievance seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002873

17/07/2024

The worker is from Brazil and he joined the employer in October 2020.  At the start of his employment, he was assigned to a job as a cleaner in a hospital in Dublin and subsequently, he was transferred to an office.  A copy of a text message he sent to the key account manager on August 3rd 2023, shows that he resigned that day.  In his message, he explained that, although he liked working in the office, he was moving to a full-time job for which he is trained.  At the hearing, the worker explained that he is a qualified nurse, and he moved to a new job as a care assistant.  He said that he plans to qualify as a nurse in Ireland, so this job as a care assistant was more relevant for his career.

The worker said that his grievances are about a disagreement between him and his supervisor when he was working in the hospital.  He said that his shift finished at 12.00 midnight and he was accused of leaving at 10.00pm and, for a number of shifts, he wasn’t paid for two hours that he worked.  He claims that he suffered a shortfall of 40 hours’ pay.  He also said that his supervisor asked him to do work that was outside his list of duties and he refused.  This is the reason he was transferred from the hospital to the office.

On behalf of the employer, Mr Kavanagh submitted that the time frame for which the worker alleges that he was not paid wages to which he was entitled is from November 11th 2022 until May 17th 2023.  Mr Kavanagh said that the worker was not given any shifts during this period because his work visa had expired.

Mr Kavanagh referred to the decision of the High Court in Amjad Hussein v The Labour Court v Mohammad Younis[1] where it was established that a person without a valid work permit cannot enforce a claim for payment of wages under the Payment of Wages Act 1991.  Mr Kavanagh submitted that the deduction of wages was not unlawful because the worker was not legally entitled to work due to his work permit having expired.

I have considered the employee’s complaint about his wages.  At the hearing, I observed a reasonable relationship between him and the key account manager with whom he had most dealings in the latter part of his employment.  I note also that the employer has a comprehensive grievance procedure and it is my view that the worker had an opportunity to resolve his grievance about his wages before or shortly after he resigned.  Based on what he told me at the hearing, his resignation was unrelated to the issues that he brought to the WRC for investigation under the Industrial Relations Act 1969.

Statutory Instrument 146 of 2000, the Code of Practice on Grievance and Disciplinary Procedures, provides guidance to employers and employees regarding the resolution of grievances and the handling of disciplinary matters.  Paragraph 2 of section 3 of the Code sets out the benefit of having access to a grievance or disciplinary procedure:

Such procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned. 

Having reviewed the documents and the information provided at the hearing of this dispute, I am satisfied that the employee was provided with the procedure for having his grievance addressed, and that he had an opportunity to do so.  His decision to resign from his employment without using the procedures or to seek guidance from his supervisor or his key account manager leaves the matter unresolved.  It is not my function, as the adjudicator, to initiate an investigation into the employee’s grievances; my role is to examine how the procedures were utilised and if the outcome was reasonable.  I am satisfied that, if the employee had brought his concerns to the attention of his employer, his grievance would have been resolved before he left his job.  Unfortunately, because the woerker failed to use the available mechanism to have his grievance investigated, there is no outcome for me to consider.

I recommend that the employer takes no further action regarding this dispute.

Failure to use the grievance procedure