PTD221

1. Appeal of Adjudication Officer Decision No(s) ADJ-00029359, CA-00038894-004

BACKGROUND:

2. The complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 21 December 2021. A Labour Court hearing took place on the 28 April 2022. The following is the Court's Determination:


DETERMINATION :

Background to the Appeal

This is an appeal by Mr Robert Blazsik (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00029359/CA-00038894-004, dated 29 November 2021) under the Protection of Employees (Part-Time) Work Act 2001 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 21 December 2021. The Court heard the appeal in Waterford on 28 April 2022 in conjunction with two other appeals brought by the Complainant: TE/21/30, under the Terms of Employment (Information) Act 1994, and CD/21/279, under the Industrial Relations Act 1969.

The Facts

The Complainant was employed by MFC Foods Limited T/A Dessert First (‘the Respondent’) as an Assistant Baker from 30 August 2019 until his dismissal om 2 July 2020 for alleged gross misconduct.

The Complainant’s rate of pay was €10.50 per hour and he worked 24 hours per week.

On 18 June 2020, the Complainant was handed a written list of tasks to complete over the course of his shift on that day. An indicative period of time for the completion of each task was also stated on the document handed to the Complainant by the owner of the Respondent, Ms Margaret Fleming.

It appears that the Complainant encountered a problem in completing one of the tasks on his list within the timeframe specified for it. This came about because the task in question could not be completed until a colleague had first completed an associated task. The Complainant became frustrated and approached Ms Fleming in her office to complain about having been required to complete his list of tasks in a time-bound manner. There is a conflict of evidence between the Complainant and Ms Fleming about the manner in which the Complainant approached Ms Fleming on the afternoon of 18 June 2020.

Ms Fleming invoked the Respondent’s disciplinary procedure against the Complainant. A disciplinary hearing was held on 1 July 2020 and the Complainant was summarily dismissed the following day.

The Complaint

The Complainant submits that his dismissal was unfair and constituted “penalisation” for having sought a revised Statement of Terms and Conditions from the Respondent in June 2020. The Respondent submits that the sole reason for the Complainant’s dismissal was his conduct when he approached Ms Fleming on 18 June 2020.

Discussion and Decision

Section 15(1) prohibits penalisation by an employer of an employee within the meaning of the Act as follows:

• “(1) An employer shall not penalise an employee—
  • (a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part, or

    (b) for having in good faith opposed by lawful means an act which is unlawful under this Act, or

    (c) for refusing to accede to a request by the employer to transfer from performing—

    • (i) full-time work to performing part-time work, or

      (ii) part-time work to performing full-time work, or

    (d) for giving evidence in any proceedings under this Act or giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a), (b) or (c).”

When pressed by the Court to specify the basis for the complaint of penalisation being advanced by the Complainant, his Representative was unable to demonstrate any causal link between the Complainant’s status as a part-time employee or his assertion of his rights under Part 2 of the Act, on the one hand, and his dismissal on the other.

The being the case, the Court finds that the complaint of penalisation is not well-founded and the appeal fails. The Court, therefore, upholds the Adjudication Officer’s decision.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
CO'R	______________________
12/05/2022	Deputy Chairman