SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001
TOP SECURITY LIMITED
(REPRESENTED BY MANAGEMENT SUPPORT SERVICES )
- AND -
JUN YU WANG
(REPRESENTED BY THE INDEPENDENT WORKERS UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Decision R-035461-PT-05/GF.
2. The appeal concerns a worker who commenced employment with the Company as a part-time security officer in January, 2003. He was employed as a static security officer at one of the Company's locations in the Dublin area. There was a break in the worker's service in 2004 so that he could study and prepare for third level examinations. He resumed employment with the Company in October, 2004. The worker was dismissed by the Company following an incident which occurred while he was on duty on the 9th June, 2005. The Company claimed that the worker was in breach of the terms of his employment by leaving his place of work without authorisation. The Union referred a complaint to a Rights Commissioner under the Protection of Employees (Part -Time Work) Act, 2001, claiming that the worker had been unfairly treated. On the 18th October, 2005 the Rights Commissioner issued his Decision, as follows;
"In the unexplained absence of the respondent I decide this complaint is well founded. He is a credible witness and he has convinced me of his losses and I require the employer to compensate him in the amount of €6284.88 forthwith".
On the 21st October, 2005, the Company appealed the Decision to the Labour Court. The Company indicated in its appeal that it had not been notified of the Rights Commissioner's hearing, hence its non-attendance at that hearing. The Court heard the appeal on the 16th February, 2006.
3. 1. The case referred by the Union for Decision by the Rights Commissioner claimed that there was a contravention of Section 15 of the Protection of Employees (Part- Time Work) Act, 2001. It would appear that it was never suggested during the Rights Commissioner's hearing that the Claimant was penalised by the Company because he was exercising his rights or otherwise under that Act. The Claimant's case relates exclusively to the fact that he was dismissed for absenting himself from his place of work without permission on the grounds that he believed that he had permission from the mobile patrol officer. This being the case the Company contends that the Rights Commissioner had no authority to make an award because, de facto, no action was taken against the Claimant because he was a part-time worker or being asked to do anything that would be contrary to the Protection of Employees (Part Time Work ) Act, 2001. The dismissal did not arise as a result of any reasons laid down in Section 15 of the Act.
2. All employees are aware that they have no right to leave the site with their supervisor or control. The Claimant was aware of that. The Claimant was never told that the mobile patrol officer was his supervisor. The Claimant was given every opportunity to provide an explanation for his absence. His explanation was not acceptable. The Claimant was dismissed because he absented himself from his place of work.
4. 1. While the Claimant signed his contract of employment he did not receive a written contract or job description. The Claimant left his place of employment at the request of a mobile patrol officer, whom he regarded as his superior, to attend with that officer at another location considered to be dangerous for one employee only. The Claimant considered this to be normal procedure and it was custom and practice for as long as he could remember. The Claimant notified central control before leaving his location to assist the mobile patrol officer. He later returned to his place of employment and resumed his duties.
2. The Claimant was subsequently summoned to a meeting with Management and was summarily dismissed without fair procedures. The Claimant did not receive adequate notice of the allegations against him, he was not allowed to have representation of his choice and he was not allowed to have a witness of his choice. He was summarily dismissed.
The dispute came before the Court by way of an appeal by the Company against the Decision of a Rights Commissioner under the Protection of Employees (Part Time Work Act, 2001, (the Act) in which the Rights Commissioner found in favour of the Complainant and awarded him compensation.
The Company appealed the Rights Commissioner's Decision on the basis that the Court has no jurisdiction to hear this case as no claim has been made relating to his status as a part-time worker.
A part-time employee can only have a cause of action under the Act if he or she is treated less favourably in respect of their conditions of employment than a comparable full-time employee is treated or the employer penalised him/her arising from matters concerning his/her part -time status.
In respect to the instant case, the Complainant is a part-time worker working an average of 16 hours per week. He was dismissed by his employer and referred a claim under section 16 of the Act on the basis of an alleged contravention of section 15 of the Act.
Section 15 of the Act provides protection to part-time workers against penalisation by the employer. An employee will be considered to have been penalised if they have been dismissed, suffered any changes in their conditions of employment or any unfair treatment or have been the subject of any other action prejudicial to his or her employment. An employer may not penalise an employee for:-
- invoking rights in accordance with the legislation; or
- having opposed, by lawful means, an act which is unlawful under the legislation;or
- for giving evidence in any proceedings under this Act or giving notice of his or her intention to do so or to do any of the above or the following, or for refusing to accede to a request to transfer from full-time work to part-time work, or vice-versa.
The Union on behalf of the Complainant, accepted that his dismissal had not arisen from matters concerning his part-time status and makes no claim that the complainant was penalised as per section 15 of the Act by his employer.
Hence, his claim of unfair dismissal under this Act cannot succeed.
In accordance with its powers under section 17(1), the Court determines that the complaint is not well-founded and overturns the Decision of the Rights Commissioner.
The Court so determines.
Signed on behalf of the Labour Court
27th February, 2006______________________
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.