FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : EMC HEALTH CARE LIMITED (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LIMITED) - AND - MS AGNIESZKA SILARSKA (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal against Rights Commissioner's Decision r-113178-pt-11
BACKGROUND:
2. The Employee appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 17(1) of the Protection of Employees (Part-Time Work Act) 2001 on the 23rd February, 2012. The Court heard the appeal on the 28th August, 2012, the earliest date suitable to the parties.
DETERMINATION:
This is an appeal by the Ms Agnieszka Silarska (”the Complainant”) against a Decision of the Rights Commissioner dated 10thFebruary 2012 in her claim against her former employer ECM Health Care Limited
(“the Respondent”) under Section 15 of the Protection of Employees (Part-Time Workers) Act, 2001 (“the Act”). The Rights Commissioner did not found in favour of the Complainant’s claim.The Rights Commissioner held for the Respondent that penalisation did not occur. He also noted most particularly that in any event the Complainant had been fully compensated under a different act and therefore the claim was not well founded under
this act.
The Complainant appealed against the Rights Commissioner’s Decision.
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 FÁS 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 Organisation of Working Time Act 1997.
Summary of the Complainant's Case
Ms Cathy Hamilton, B. L. instructed by Mr Richard Grogan, Richard Grogan & Associates, Solicitors, on behalf of the Complainant submitted to the Court that the Complainant was penalised contrary to the provisions of Section 15 of the Act, when she was dismissed by the Respondent as she refused to work at weekends. 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 at weekends. 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 15 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, 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, the
Respondent 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 unemployment 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. At which point the Complainant denied that she had agreed to return to full-time hours.
The Complainant’s refusal to do so compromised the Respondent andrequired it to seeka full-time receptionist 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 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 15 of the Act. In essence, the Complainant’s case is that she was dismissed for refusing to transfer from part-time working to full-time working in contravention of Section 15(2)(a) of theAct. It is not denied that the Complainant was dismissed when she refused to change from working 3 days per week to work 6 over 7 days as required by the Respondent. It is, however denied that this was any form of penalisation under the Act.
Section 15 of the Act provides that penalisation occurs where an employee is subjected to unfavourable treatment,inter-alia, for refusing to accede to a request by the employer to transfer from performing part-time work to performing full-time work. Section 15(2) provides that the dismissal or other prejudicial action by an employer shall not constitute a penalisation of the employee if both of the following conditions are complied with—
(i)having regard to all the circumstances, there were substantial grounds both to justify the employer's making the request concerned and the employer's taking that action consequent on the employee's refusal, and
(ii)the taking of that action is in accordance with the employee's contract of employment and the provisions of any other enactment of the kind to which section 20(2) applies.
In any event the contract was not accepted by the Complainant. The Complainant told the Court that she was willing to transfer from part-time working to full-time working, but was not willing to work at weekends. In such circumstances, the Court must find that she did not refuse to accede to a request by the employer to transfer from performing part-time work to performing full-time work within the meaning of Section 15(1)(c) of the Act and furthermore, the Respondent cannot rely on the defence provided in Section 15(2).
Accordingly, the Court finds that the dismissal of the Complainant in such circumstances can amount to penalisation under Section 15 of the Act. In considering redress in this case, the Court notes that the Complainant successfully claimed payment in respect of any outstanding pay due under her fixed- term contract, for the period from the date of her dismissal on 30thApril 2011 until the expiry of the contract on 31stJuly 2011, and therefore she suffered no loss of pay.
DETERMINATION :
In all the circumstances of this case the Court determines that the appropriate redress is an award of compensation in the sum of €2,500. The Respondent is directed to pay the Complainant compensation in that amount within six weeks of the date of this Determination.
The Court upholds the appeal and overturns the Decision of the Rights Commissioner.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th September, 2012______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.