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FULL RECOMMENDATION
PARTIES : SUPERMACS IRELAND LIMITED DIVISION :
SUBJECT: 1. Appeal of Adjudication Officer Decision NoS: ADJ-00005019 CA-00007095-003 A Labour Court hearing took place on 20 July 2021 The following is the Determination of the Court: DETERMINATION : Summary testimony of the Appellant The Appellant, in evidence, stated that her trade union wrote to the HR department of the Respondent on 12th May 2016 and made the Respondent aware of her grievance as regards sexual harassment and in the following week her working hours were reduced to 20. She was a full-time employee and her hours dropped to 20. She believes that her supervisor, Mr A, told all managers of the letter from her Trade Union and that her working hours were reduced as a response. Under cross examination on behalf of the Respondent, the Appellant agreed that the level of hours offered to her in week beginning 22nd May and 29th May were not dissimilar to the level of hours she worked in certain weeks in March, April and May 2016. However, she felt that her hours should have increased during May and afterwards. She agreed that she was rostered for 39 hours work in the week beginning 5th June 2016. Summary position of the Respondent The Respondent submitted that any change in the working hours of the Appellant in weeks beginning on 22nd and 29th May 2016 was not unusual by reference to the fluctuation of the working hours of the Appellant generally. No connection exists between a communication received by its HR department and the allocation of hours to the Appellant in the two weeks at issue. The fluctuation which occurred was normal and it cannot therefore be asserted that the fluctuation which occurred in those weeks was any form of penalisation of the Appellant arising from the letter sent to the Respondent by her Trade Union. Relevant Law The Act at Section 27 in relevant part provides as follows: 27.(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. (2) Without prejudice to the generality of subsection (1), penalisation includes— (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (3) 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, Discussion and conclusions of the Court The Appellant submitted that following the issue by her Trade Union of a request for information to the Respondent under the Employment Equality Acts, her hours of work were reduced from 35 hours in week beginning 15th May 2016 to 22 hours in week beginning 22nd May and to 20 hours in week beginning 29th May. She submitted that her Trade Union had, on 12th May 2016, submitted a request for information under Section 77(6) of the Act and in that letter had notified the Respondent of ‘a number of grievances’ and that ‘one of the issues was sexual harassment’. She contended that the reduction in her hours occurred because her Trade Union had written to the Respondent on 12th May 2016. The Appellant submitted data which listed her weekly hours in each week from week beginning 14th February 2016 as follows: 28, holidays, 26, 27, 23, 31, 30, 29, 23, 26, 24, 25, 29, 35, followed by weeks beginning 22nd and 29th May. The Respondent submits that the pattern of working of the Complainant fluctuated considerably in the normal course and that the pattern of working in the two weeks concerned was not out of the ordinary. In order to succeed in a claim under section 27 of the Act, the Appellant must demonstrate that she has (a) committed a protected act; (B) suffered a detriment within the meaning of section 27, and (c) show a causal connection between (a) and (b). In Toni & Guy Blackrock v O’Neill [HSD095], this Court expressed the foregoing in the following terms: “It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. 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 the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.” The Court is satisfied that the communication from the Appellant’s Trade Union to the Respondent on 12th May 2016 was a protected act within the meaning of the Act at Section 27(3) in that the letter amounted to a complaint or representation in relation to a matter relating to safety, health or welfare at work. The Appellant has submitted that she suffered a detriment in weeks beginning 22nd and 29th May 2019 and the Court accepts that a reduction in her working hours amounted to a detriment. The Court has examined the pattern of fluctuation of the working hours of the Appellant as submitted by her over the period from February to June 2016. The Court notes that the level of hours worked by the Appellant in the weeks beginning 22nd and 29th May is broadly consistent with the level of hours worked by her in at least three other weeks over the period. Noting also that the Appellant agrees that she worked for 39 hours in the week following the two weeks when she contends she was penalised, the Court concludes that Appellant’s working hours were not consistent and that the pattern of her working hours regularly fluctuated. In those circumstances the Court concludes that the Appellant has not established a causal connection between the commission of a protected act and the detriment which she suffered in the weeks at issue in this complaint. Decision The Court has concluded that the Appellant was not the subject of penalisation within the meaning of the Act. The within appeal therefore fails. The Court so decides.
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