SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
EMC HEALTH CARE LIMITED
(REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LTD)
- AND -
MS AGNIESZKA SILARSKA
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Ms Tanham
1. Appeal against a Rights Commissioners Decision r-113174-wt-11.
2. The Employee appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 30th March, 2012. The Court heard the appeal on the 28th August, 2012, the earliest date suitable to the parties.
This is an appeal by the Ms Agnieszka Silarska (”the Complainant”) against a Decision of the Rights Commissioner dated 22ndMarch 2012 in her claim against her former employer ECM Health Care Limited (“the Respondent”) under Section 21 and 26 of the Organisation of Working Time Act 1997 (“the Act”). The Rights Commissioner found in favour of the Complainant’s claim under Section 21 of the Act and awarded the sum of €144.00 in compensation. The Rights Commissioner made no decision on the Section 26 complaint.
The Complainant’s appeal before the Court concerns the Rights Commissioner’s “decision” on the alleged act of penalisation contrary to Section 26 of the Act. The Decision under Section 21 was not the subject of an appeal before the Court.
The Complainant was employed by the Respondent on a temporary contract from 7thMarch 2011 which was due to terminate on 31stJuly 2011, covering for an employee on maternity leave. The Complainant was employed to work on a full time basis, however as she was attending a FAS course at the time, she actually worked three days per week. Her employment terminated on 30thApril 2011.
The Complainant also submitted a complaint alleging penalisation, essentially on the same facts, under the terms of Protection of Employees (Part-Time Workers) Act, 2001.
Summary of the Complainant's Case
Ms Cathy Hamilton, B. L. instructed by Mr Richard Grogan, Richard Grogan & Associates, Solicitors, submitted to the Court that the Complainant was penalisation by the Respondent contrary to the provisions of Section 26 of the Act, when she refused to work on Sundays. Ms Hamilton stated that when the Complainant completed her FÁS course she agreed to work full time, i.e. over five days but that she would not work on Sundays, one of her rest day in accordance with Section 13 of the Act. She told the Court that it was on that basis that the Complainant refused to sign the contract and inserted a note stating that she did not agree with its terms.
Summary of the Respondent's Position
Ms Judy McNamara, Peninsula Business Services, on behalf of the Respondent denied that the Complainant had been penalised contrary to the provisions of Section 26 of the Act. She said that the Complainant’s dismissal arose directly as a result of her refusal to honour an agreement made with her at the commencement of her employment in March 2011.
In any event she contended that the Complainant suffered no financial loss as she was awarded compensation for any loss of earnings up to the end of her contract under the Payment of Wages Act, 1991. Accordingly, Ms McNamara submitted that to award a further financial award would be unjust and inequitable and would constitute double recovery.
Ms McNamara told the Court that up to March 2011,there had been two full-time Receptionists in the Company,one of whom went on maternity leave at that time.The second Receptionist had been on special leaveforsome timeand the Respondent was unaware as to when orifshe would be available for work.The Complainant was aware of the situations in which both Receptionists found themselves and could not have beenin any doubt as to the Respondent'srequirement to fill the Receptionist's role on a full-time basis, working 6 over 7 days, rostered between the hours of 8am to 9pm, Monday to Sunday, as provided for in the contract.
Ms McNamara said that on the commencement of her employment the Complainant advised the Respondent that she was at the time undertaking a training course with FÁS in Waterford which she wished to complete, theRespondent met with her to discuss the options available. It was agreed that in order to facilitate the completion of the FÁS course, the Respondent would engage her on a part-time basis until the end of April 2011, following which the Complainant would then be required to work on a full-time basis until the termination date of the fixed term contract in July 2011.
Ms McNamara said that a contract of employment was then issued to the Complainant to reflect the arrangement entered into, therefore the contract stated that she would be contracted to work 24 hours per week, and her hours were rostered accordingly. The Complainant was also in receipt of job seekers’ benefit from the Department of Social Protection. The Complainant refused to sign the contract without clarifying what her difficulties were and only returned it following the termination of her employment, on 5thMay 2011 when it was returned unsigned with a note indicating that she did not 'agree with all of the above'. Ms McNamara said that prior to the termination of her employment the Complainant did not dispute or express any difficulties with the contract or its terms.
When the FÁS course was due to complete in or around the middle of April 2011, the Respondent approached the Complainant on 4th April 2011 to discuss her return to work full-time as previously agreed, including the requirement to work one Sunday every month. However, the Complainant refused to work at weekends including Sundays.
The Complainant’s refusal to do so compromised the Respondent andrequired it to employ a receptionist willing to work on Sundays as required, as a matter of urgency.Ms McNamara contended that the Respondent was justified in making a request to the Complainant to work full time hours including the requirement to work one Sunday in the month as agreed at the commencement of her employment and on her refusal to do so the Respondent had no alternative but to terminate her employment forthwith. She contended that in such circumstances, the Respondent was entitled to dismiss the Complainant.
Findings of the Court
In this case the Complainant is seeking redress for penalisation within the meaning of Section 26 of the Act. In essence, the Complainant’s case is that she was dismissed for refusing to work on Sundays i.e. one of her rest days in accordance with Section 13 of the Act. It is not denied that the Complainant was dismissed when she refused to change her working pattern including the requirement to work one Sunday per month. It is, however denied that this was any form of penalisation under the Act.
Section 26 of the act provides as follows: -
- 26.—(1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act.
(2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.
This section in the Act provides that an employee who refuses to co-operate with an employer in breaching the Act shall not be penalised by the employer. In order to make out her complaint of penalisation it is necessary for the Complainant to relate her dismissal to her opposing an act which is unlawful under the Act of 1997. Section 13 (5) provides that unless otherwise specified in an employee’s contract of employment, the weekly rest period must include Sunday.
While the Complainant may not have agreed to the terms of the contract, the contract did specify that Sunday could be one of the days she could be rostered on. Such a clause in the contract could not be deemed to be in contravention of the Act. In reality the Respondent stated that other staff members, including reception staff, were rostered on one weekend per month, including a Sunday, and were entitled to two days off in lieu during the week. In such circumstances the Court is satisfied that the Respondent was not seeking the Complainant to co-operate with it in breaching the Act. Therefore, the Court is satisfied that there was no penalisation as defined by Section 26 of the Act.
For the reasons set out above, the Court determines that the complaint herein is not well founded. The Decision of the Rights Commissioner is affirmed and the appeal is disallowed.
The Court so determines.
Signed on behalf of the Labour Court
26th September, 2012______________________
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.