SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
WICKLOW RECREATIONAL SERVICES LTD
(REPRESENTED BY LAW PLUS SOLICITORS)
- AND -
(REPRESENTED BY BLAZEJ NOWAK)
Chairman: Mr Duffy
Employer Member: Ms Cryan
Worker Member: Ms O'Donnell
1. Appealing against a Rights Commissioner's Decision R-145975-Wt-14/EH.
2. The Worker referred his case to theLabour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 12th May, 2016. The following is the Determination of the Court:
This is an appeal by Marek Marciniuk (hereafter the Complainant) in a claim of penalisation by his former employer Wicklow Recreational Services Limited t/a Shoreline (hereafter the Respondent). The claim was taken pursuant to s.26 of the Organisation of Working Time Act 1997(the Act).
The Respondent operates a leisure centre located in Co. Wicklow which trades under the name ‘Shoreline’. The Complainant was employed by the Respondent between 1stDecember 2008 and July 2014 in his capacity as a part-time leisure attendant. He was employed on a zero hours contract under which he was provided with such hours of work as the Respondent determined from time to time. He performed a range of duties including the provision of swimming lessons.
By notice dated 15thOctober 2013 the Complainant made complaints to a Rights Commissioner in which he alleged that the Respondent had contravened sections 14 and 21 of the Act in relation to him. He then made a number of subsequent complaints alleging various contraventions of the Act. The Complainant has also brought proceeding against the Respondent under the Employment Equality Acts 1998-2015 and under the Unfair Dismissals Acts 1977-2015.
The complaint to which this appeal relates was lodged with the former Labour Relations Commission on 10thJune 2014. In that complaint the Complainant alleged contravention of sections 14, 21 and 26 of the Act. The only point in issue in this appeals in that in relation to alleged penalisation contrary to s.26 of the Act.
The hearing of the appeal opened on 8thApril 2016. It continued at a resumed sitting of the Court on 12thMay 2016
The Complainant was represented by Mr Blazej Nowak. The Respondent was represented by Mr Karl Hutchinson, of Law Plus Solicitors.
Position of the Parties
The Complainant alleges that in consequence of having made a complaint under the Act on 15thOctober 2013 the Respondent altered the allocation and spread of his working pattern so as to assign him work on more weekdays rather than weekends. Specifically, it is alleged that the Respondent altered his attendance pattern so as to deprive him of the opportunity to obtain social welfare payment in respect of weekdays on which he was not previously rostered to work. It is further claimed that he was assigned to cleaning duties more frequently than other employees and that he received a disciplinary warning for having brought his young son into a restricted area on the premises in which he worked. On this latter point the Complainant contends that at or about the same time as he brought his son into this area other minors were allowed in to the area by permission of his centre manager.
The Respondent denied all of the Complainant’s allegations. Its case is that at all material times working hours and duties of all employees, including the Complainant, were allocated having regard to the requirements of the business. It was further submitted that the Complainant was treated no differently to others whose circumstances are similar. Without prejudice to its submissions in that regard, the Respondent contends that the Complainant was assigned to weekday working more frequently before he made the complaints on which he relies in advancing his claim of penalisation. It further contends that there was no appreciable difference in the amount of cleaning duties to which the Complainant was assigned relative to others. It is the Respondent’s case that the Complainant was disciplined for misconduct involving bringing his son into an area in which children are prohibited on health and safety grounds. It denies that any of the matters complained of by the Complainant were related to him having made complaints under the Act.
The Complainant gave sworn evidence. He told the Court that he commenced employment with the Respondent in 2008. He said that most of the working hours assigned to him were on Saturdays and Sundays. That subsequently changed and most of the working hours were on weekdays. He said that up to 2011 he had a second job, unrelated to the Respondent, and he worked for the Respondent mainly at weekends. When his second source of employment came to an end in 2011 he became entitled to social welfare benefit in respect of the days during the week on which he was not employed. However, his entitlement to social welfare was limited by the number of weekdays on which he worked and if he worked for more than three days in any week he could not claim social welfare payments for that week.
According to the Complainant, he was assigned less teaching hours at weekends and more hours on weekdays. He told the Court that this impacted adversely on him in that it limited his entitlement to claim social welfare payments in respect of the days on which he was not employed. The Complainant also told the Court that from the same period he was assigned to cleaning duties more frequently that other employees. This, he said, was a less agreeable form of work.
The Complainant testified that he had been given a written warning by the Respondent for having allowed his young son to enter the storeroom. A lifeguard had made a complaint to his manager concerning this incident. At the time his son entered the storeroom he had seen two young girls in the area. They told him that the manager of the centre had given them permission to enter the area and remove equipment.
In relation to working hours the Complainant testified that in 2014 he was assigned to work for 3 to 4 hours per day over 3 to 4 days per week. He said that he was sometimes assigned to provide swimming lessons on Saturdays. When asked by his representative, Mr Nowak, if prior to 2014 he had always been assigned to work on Saturdays and Sundays, he answered that he had not. He was then asked if he was paid more in respect to the provision of swimming lessons. He answered that he was not.
The Complainant told the Court that his rate of pay varied over the course of his employment. He said that the basic rate of pay in the employment was €9.48 per hour. In 2008 he was paid €15.00 per hour for providing swimming lessons on Saturdays. He said that this increased later to €25 per hour. He could not remember when the rate increased.
In relation to the allocation of cleaning duties, the Complainant told the Court that in 2012 and 2013 he was rarely assigned to cleaning duties. He said that sometimes he was not required to undertake such duties and on other days he might be expected to clean for one hour during the course of a day. He said that in 2014 he was required to undertake cleaning for 2 or 3 more hours per day.
In cross-examination the Complainant agreed that when he commenced employment with the Respondent he was engaged in full time employment elsewhere and was only available to work for the Respondent at weekends. He said that this continued for three years up to 2011. He said that he could then draw social welfare in respect of weekdays provided he did not work for more than 3 days in the week. He said that he drew social welfare in respect of weekdays in 2012 and 2013 but that this changed in 2014.
The Complainant was asked how many employees of the Respondent were qualified to provide teaching lessons. He said that there were 11 or 12. It was put to him that in fact there were 20 to 25 such employees. It was put to the Complainant that in 2013 he had been assigned more teaching hours that any of the other employees who performed these duties. He agreed that sometimes he was. He said that in the years 2008 to 2011 he had more teaching hours than in 2014.
It was put to the Complainant that between 2008 and 2014 his average working hours were 16.7 per week. He said that he was not sure but that was probably correct. He also agreed that his average working hours in 2013 and 2014 were probably 14.22. He agreed that in 2014 he was offered teaching hours during weekdays at a rate of €25 per hour. He said that this was not the same as teaching on Saturdays, because private lessons were given on Saturdays and on weekdays it tended to be school lessons which attract lower rates.
When asked about his qualifications, the Complainant told the Court that he had a diploma which qualified him to teach swimming to children. When asked if his qualification was recognised in Ireland, he agreed that it was not. He also agreed that his qualification in Ireland entitled him to work as an assistant swimming teacher and that he had to be supervised by a fully qualified swimming teacher.
When asked about his objection to undertaking cleaning duties the Complainant said that he had no qualifications for cleaning. He agreed that the Respondent employed full-time cleaners and that all leisure attendants were expected to undertake some general cleaning and hovering around the swimming pool and in the gym. He said, however, that the rosters showed that he was expected to do 2 or 3 more hours cleaning per day than others.
In relation to the circumstances in which he received a warning, the Complainant said that he had brought his son into the storeroom and that a lifeguard made a complaint to his supervisor. He agreed that he was aware that the Respondent prohibited children from entering this area on health and safety grounds. He said that nobody had told him that he could not bring his son into this area.
In questioning by a member of the Court it was pointed out to the Complainant that his complaint of penalisation was made in June 2014. He was asked when the events giving rise to that complaint commenced. He said that he could not remember but that it was around the time of the incident involving his son entering the storeroom, which occurred in January 2014. He said that he had asked his manager, Mr Whelan, why his roster hours had changed and he was told that it was because there were more employees giving swimming lessons and Saturday and Sunday work had to be shared. He said that Saturdays and Sundays were the most popular working days and that most employees preferred to work on those days. He agreed that he did work on some Saturdays on Sundays in 2014.
In the course of answering question from the Court the Complainant stated, without solicitation, that he believed that the changes of which he complained occurred because of the incident involving his son. That incident occurred in January 2014. It was pointed out to the Complainant that his claim before the Court did not relate to adverse treatment in relation to this incident. The Complainant repeated that he believed that the events giving rise to his claim was because he had allowed his son to enter the storeroom.
Request for an Interpreter and Adjournment
When pressed on why he had claimed that the various changes of which he complained were made because of his complaint to a Rights Commissioner in October 2013, Mr Nowak objected to this line of questioning on the basis that the Complainant was being asked for his opinion. In overruling that objection the Court pointed out that the Complainant had stated on a number of occasions, without solicitation, that in his opinion the matters complained of were as a result of allowing his son enter the storeroom. It was further pointed out that, in these circumstances, the Court was entitled to enquire why he had instructed his representative to advance a claim that the putative detriments that he suffered was because he had presented an earlier claim to a Rights Commissioner under the Act.
At this point the Complainant stated that he had difficulty following what was being said, and he asked for the assistance of an interpreter. While it appeared to the Court that the Complainant had a perfectly good comprehension and command of the English language, it nonetheless acceded to his request for a translation service and the hearing was adjourned to facilitate the provision of such a service.
The hearing resumed on 12thMay 2016. On that date the Complainant had the assistance of an interpreter. On the resumption of the Complainant’s evidence the Chairman of the Court asked him if there were any questions put to him on the previous occasion that he did not understand and if there was any aspect of the evidence that he had previously given that he wished to revise. He said that he wished to say that the incident with his son was the main reason for the subsequent loss of his job. He also said that he believed that this incident was only one of the reasons for the change in his working pattern.
It was pointed out to the Complainant, by a member of the Court,that the complaint to a Rights Commissioner, on which reliance is placed in his claim of penalisation, was made in October 2013. He was asked if any changes occurred immediately after he made that complain. The Complainant replied that he had been bullied. He said that the changes of which he complained occurred in or after January 2014.
Mr Hutchinson, by leave of the Court and without objection from Mr Nowak, put some further questions to the Complainant. It was put to the Complainant that he worked on 38 weekdays between January 2014 and July 2014. The Complainant replied that he could not remember. He was then asked how many weekdays he worked in 2013. He replied that he did not know. It was put to him that he worked on 28 weekdays in that year. It was also put to the Complainant that he worked on 52 weekdays in 2012. The Complainant agreed that this was probably correct.
The Complainant was asked if he had complained at being required to work on weekdays in 2012. He agreed that he had not but said that he was getting more hours overall.
In re-examination the Complainant said that when he finished in his second employment in 2011 he asked for and obtained additional hours with the Respondent. He said that this was mostly on Saturdays and Sundays. He also repeated that in 2013 he worked mostly on Saturdays and Sundays.
Evidence on behalf of the Respondent
Mr Eamonn Whelan
Mr Eamonn Whelan gave evidence on behalf of the Respondent. This witness is General Manager of the Respondent.
Mr Whelan told the Court that the Respondent employed three cleaners, two of whom are employed in a full-time capacity and one was part-time. The main cleaning duties in the leisure centre are performed by these members of staff. Leisure attendants are also expected to undertake routine cleaning duties during the day. This may involve putting equipment away and cleaning water from around the pool area. Leisure attendants are also expected to check the toilet areas and undertake any cleaning that may be required. They are also expected to set up the pool area and prepare it for use.
It was Mr Whelan’s evidence that the tasks assigned to the Complainant were no different than those assigned to other leisure attendants. Cleaning and associated duties were shared equally between all leisure attendants and while the amount of cleaning required might vary from time to time, depending on the number of people using the centre, these duties were distributed equally subject to some minor variations depending on a number of factors. Turning to the amount of cleaning duties required in 2014, the witness testified that there may have been an increase in the overall requirement for this work because the centre had a large number of events in that year.
The witness’s evidence was that the assistant manager prepared weekly rosters and he approved them. Mr Whelan testified that the Complainant was not required to undertake any additional duties in comparison to others. The witness told the Court that there was no basis whatever for the Complainant’s contention that he had been penalised for having made complaints under the Act or otherwise.
In cross-examination Mr Whelan said that the Complainant was not assigned to work in the gym because he was not qualified to undertake this work.
Mr Whelan was referred to a document that contained the rosters for various dates in 2014. He was asked if he agreed that this document showed that the Complainant did more cleaning than others. He did not accept that suggestion. He pointed out that others who appeared to do less cleaning are qualified gym instructors and cleaning was an inherent part of their role. Mr Whelan did accept that the records to which he was referred showed that the Complainant had undertaken more cleaning on 6thJune 2014 and that he had undertaken ½ hour more cleaning than others on 16thJune.
It was put to Mr Whelan that according to the rosters the Complainant had, in fact, undertaken more cleaning than others in 2014. He said that when the fact that the Complainant was not qualified to work in the gym is taken into account that is not the case.
In response to questions from the Court Mr Whelan said that there was a greater requirement for cleaning at weekends as compared to weekdays. He said that this arose from the greater number of people using the centre at weekends. Mr Whelan went on to say that when the Complainant worked at weekends he undertook cleaning duties without complaint.
In the course of questioning Mr Whelan in relation to the document containing rosters put in evidence on behalf of the Complainant, it transpired that there were no entries in respect of several periods in 2014. Mr Hutchinson interjected to point out that the document being relied upon was incomplete. Mr Hutchinson told the Court that the complete document containing all entries for the period January to June 2014 had been provided to Mr Nowak. Mr Nowak told the Court that the document that he had put in evidence was all that he had received. The Court accepted the complete document and undertook to examine its content in reaching its conclusions
Evidence of Dominic Gunshenan
Mr Dominic Gunshenan, who is the Chief Executive Officer with the Respondent, gave evidence. This witness told the Court that the Complainant, in common with other leisure attendants, was employed on an “as and when required” basis. He was effectively employed on a zero hour’s contract. He said that the Respondent had 30 employees of which 15 were on similar contracts.
He said that the Complainant’s role was primarily in relation to the operation of the swimming pool. Asked about the Complainant’s qualifications as a swimming instructor, Mr Gunshenan said that there were two regulatory bodies that accredited swimming instructors in Ireland. He said that swimming instructors were accredited at either level 1 or level 2. He said that level 1 is an introductory level whereas those at level 2 are more advanced in their teaching competency. According to this witness, those at level 1 can only provide swimming lessons under the supervision of a person who is qualified at level 2. The Complainant was qualified at level 1.
The Court was told that this difference in qualification impacts on the allocation of work as there is always work to which only a person qualified to level 2 can be assigned.
Mr Gunshenan told the Court that in November 2013 he became aware that the Complainant had made complaints to a Rights Commissioner when he received notification of the complaints. He became aware that the Complainant was raising issues in relation to his working hours and conditions on or about 25thMay 2014 when he received a letter from the Complainant, dated 22ndMay 2014, in which his grievances were set out. He said that he met with the Complainant on 10thJune and on 19thJune 2014 in relation to these matters. He said that he had been on holidays and the 10thJune was the first available opportunity on which he could arrange a meeting.
Mr Gunshenan said that both meetings were minuted and the minutes were agreed with the Complainant as accurate. Copies of these minutes were put in evidence. He said that the Complainant had complained that he was being assigned more cleaning duties than others and that he was being assigned to work on weekdays, rather than at weekends, to a greater extent than others. The witness recalled expressing surprise at what the Complainant was alleging. He said that he had looked over the rosters for the previous six months and could find nothing to substantiate the Complainant’s claims. He said the Complainant was then complaining that his work pattern changed in September / October 2013 whereas he was now claiming that the changes occurred from January 2014 onwards.
Mr Gunshenan told the Court that he undertook to speak to Mr Whelan and to check the records again and revert back to the Complainant. The witness told the Court that he had spoken to Mr Whelan and that he had independently checked the rosters for the previous three months. He could find nothing extraordinary and he was satisfied that the Complainant had been treated no differently to others in respect to either his working pattern or his allocation of duties.
A second meeting was held with the Complainant on 19thJune 2014, This meeting was again minuted and a redacted copy of the minutes was put in evidence. The Court was referred to a passage in the minutes in which the Complainant is recorded as telling Mr Gunshenan that he regarded himself as having been penalised from September / October 2013 in respect to his allocation of hours and duties. Mr Gushenan testified that the Complainant had been rostered to work on 19 Saturdays in 2014 out of a possible 24. He had put that to the Complainant who acknowledged that he had worked more Saturdays in 2014 but he claimed that his overall working hours were less than previously.
Mr Gunshenan told the Court that he totally refuted any implication that he had penalised the Complainant in any way. He said that the work available is dictated by the requirements of the business and that available hours are provided to all staff equally, subject to the overriding need to match the qualifications of employees to the work to be performed.
The witness told the Court that he had checked on the number of weekdays on which the Complainant worked in each of the years 2012, 2013 and 2014. He established that he worked on 52 weekdays in 2012, on 28 weekdays in 2013 and on 38 weekdays up to June 2014. The witness confirmed that he was in a position to swear to the accuracy of the information that he had given in that regard. The Court was told that the Complainant had not complained about the number of weekdays that he worked in 2012.
The witness was referred to a document that had been created in relation to a claim that the Complainant is currently pursuing under the Employment Equality Acts 1998-2015 in which he had compared his working hours against two nominated comparators. Mr Nowak objected to this document being put in evidence as its content had not been put to the Complainant in cross-examination. Mr Nowak was invited by the Court to recall his client for the purpose of dealing with this matter. Mr Nowak declined to recall the Complainant but objected to the document being received by the Court. Following further exchanges the Court declined to accept this document because it had been created for the purpose of other proceedings which are live before another tribunal. The Court also held that the matters to which this document appeared to relate were already covered in other evidence adduced by the Respondent.
In cross examination the witness was asked if the Complainant worked mainly on Saturdays and Sundays between 2008 and 2012. The witness said that he did not accept that. He was satisfied that the Complainant worked some weekdays and evenings in each of those years.
Mr Gunshenan was referred to signed work sheets for various dates in 2012, 2013 and 2014. The witness said that he had not seen these document before and was unable to comment on their content.
Turning to the circumstances in which the Complainant was given a written warning, Mr Gunshenan was asked if he had heard the appeal against the imposition of that sanction. He agreed that he did. He said that he did not uphold the appeal as he considered that a warning was warranted in the circumstances. He agreed that the Complainant had claimed that two teenagers were in storeroom at the same time as his son. He said that he had looked into that matter but it did not alter his opinion that a warning was warranted in the circumstances. The witness denied that the decision of uphold the warning was in any way influenced by the fact that the Complainant had made complaints under the Act.
Mr Nowak made submissions in which he advanced the proposition that since the motive or reason for altering the Complainant’s working pattern was within the peculiar knowledge of the Respondent, the burden of proving the absence of penalisation rested on the Respondent. In support of that submission reliance was placed on the decision of the Supreme Court inHanrahan v Merck Sharp & Dohme (Ireland) Limited ILRM 629. It was submitted that the Respondent had failed to discharge that burden of proof.
Mr Hutchinson submitted that the case turned on questions of fact and that the evidence did not disclose that the Complainant had suffered any detriment. In these circumstances, it was submitted, his claim could not succeed.
The Complainant’s complaint is that he was treated detrimentally by the Respondent in retaliation for having made complaints under the Act in October 2013. The gravamen of his complaint is that his working pattern was changed so as to deprive him of the opportunity to claim social welfare payments from the State in addition to his earnings from the Respondent; that he was assigned to cleaning duties to a greater extent than others, rather than to swimming instruction, and that he was issued with a warning which was unwarranted. This, he contended, amounted to penalisation within the meaning of s.26 of the Act.
Section 26(1) of the Act provides: -
- (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.
That involves a consideration of two questions. Firstly the Complainant must establish that he suffered a detriment in relation to his conditions of employment. Secondly, the Court must be satisfied that the complaint made under the Act was an operative reason for the imposition of the detriment found to have been imposed. As held by this Court inO’Neill v Toni and Guy 10 E.L.R 1, where a detriment was imposed on an employee following the making of a statutory complaint, the absence of any other explanation for the imposition of the detriment can lead to an inference that the Complainant was penalised.
The Complainant was employed on what is known as a zero hours contract. That is to say, he did not have a contractual entitlement to any fixed number of working hours nor did he have a contractual entitlement to work on any particular days of the week. Rather, as attested by Mr Gunshenan in his evidence, which the Court accepts, it was a term of his contract of employment that he would be available to work as and when his services were required to meet the exigencies of the Respondent’s business.
It seems to the Court that inherent in the case advanced by the Complainant is a proposition that he was in some way entitled to an allocation of working time that maximised his capacity to claim social welfare payment from the State so as to augment his earnings from the Respondent. By way of observation, it seems to the Court that, at the level of principle at least, there are no circumstances in which it could be held that an employer acted unlawfully in providing an employee with paid employment on the basis that it had the effect of taking the employee outside the scope of the social welfare code. Moreover, it could not be held that the mere fact that an employee made a complaint under statute could have the effect of immunising him or her from the effects of normal ongoing change in work organisation which is part and parcel of all employment.
However, in this case the first question to be determined is whether the Complainant suffered a detriment in the manner alleged. That is a question of fact to be resolved on the evidence.
There was a conflict between the evidence given by the Complainant and that given by Mr Whelan and Mr Gunshenan in almost every material respect. The Court found the Complainant’s testimony uncertain and contradictory. He was unable to particularise his complaint in relation to the amount of cleaning duties to which he was assigned and he was unsure as to the number of weekends and weekdays that he actually worked over various periods. The Court accepts that at the meetings with Mr Gunshenan in June 2014 the Complainant claimed that the pattern of less favourable treatment of which he complained commenced in September / October 2013. In his evidence to the Court he said that it commenced in January 2014. The Complainant also seemed, at best, confused as to the nature of the claim that he had instructed his representative to advance on his behalf. Overall and having made full allowance for the fact that the Complainant gave most of his evidence in English, which is not his native language, the Court found him to be an unreliable witness.
By contrast the Court found Mr Whelan and Mr Gunshenan to be reliable witnesses who gave honest evidence to the best of their recollection. The Court has also examined with great care the various documents and records put in evidence. They largely support the oral evidence given by Mr Whelan and Mr Gunshenan.
In relation to the allocation of cleaning duties to the Complainant the Court has examined the roster sheets furnished by the Respondent. In doing so the Court has noted Mr Nowak’s claim that he was not furnished with the complete series of rosters handed into Court and that he was only provided with the abridged document that he put in evidence. The Court does not find it credible to suggest that the Respondent would have furnished the Complainant’s representative with an abridged version of these rosters and have omitted many entries that support the substantive defence being relied upon by the Respondent.
The within claim was presented to the Rights Commissioner on 10thJune 2014. The cognisable period for the purpose of the claim ran from 11thDecember 2013 to the date on which the claim was presented.
Allocation of Duties
Having examined this document the Court finds that out of 36 entries in relation to work allocation in the period January 2014 to 10thJune 2014, the Complainant was not assigned to any cleaning duties on 20 occasions. On 9 occasions the Complainant was assigned exactly the same amount of cleaning duties as others. On 3 occasions he was assigned more cleaning duties than others but by no more than 30 minutes on two occasions and by one hour on one occasion. On 3 occasions he did less cleaning duties than others and on 1 occasion he was the only employee assigned to cleaning duties.
These documents disclose the following: -
•The Complainant was not assigned to any cleaning duties on 6thJanuary, 14thJanuary, 16thJanuary, 30thJanuary, 31stJanuary, 20thFebruary, 2ndMarch, 14thMarch 24thMarch, 27thMarch, 1stApril, 16thApril, 28thApril, 29thApril, 2ndMay, 6thMay 8thMay 14thMay, 21stMay and 29thMay.
•The Complainant was assigned to exactly the same amount of cleaning duties as others on 28thMarch, 31stMarch, 3rdApril, 15thApril, 17thApril, 19thMay, 20thMay, 27thMay and 9thJune.
•The Complainant was assigned more cleaning duties than others on 4thApril, 4thJune and on 6thJune. The extent of the difference was ½ hour in two instances and one hour in one instance. It is noted that in his evidence Mr Whelan accepted that the Complainant performed more cleaning duties than others on 16thJune, but that post-dated the referral of the within claim and could not have been comprehended by the claim.
•The Complainant was assigned to less cleaning duties than others on 10thJanuary, 26thMay and 10thJune
•The Complainant was the only employee who was assigned to cleaning duties on 18thApril.
Pattern of Weekday Working
The Court accepts, on the evidence adduced, that in 2012 the Complainant worked on 52 weekdays, in 2013 he worked on 28 weekdays and in 2014, up to the time his employment ended he worked on 38 weekdays. This does not support the Complainant’s claim that the practice of allocating him to work on weekdays followed on from the complaint that he made to a Rights Commissioner in October 2013. Nor does the Court accept that this pattern of work allocation is out of line with what might be expected where an employee is employed on the type of contract on which the Complainant was employed. Moreover, the Court fully accepts the evidence tendered by Mr Gunshenan to the effect that the allocation of working hours was solely dictated by the exigencies of the business and unrelated to the complaint that the Complainant made to a Rights Commissioner in October 2013.
The Court accepts, on the evidence, that the Complainant was given a disciplinary warning for allowing his son to enter an area prohibited to children in contravention of a rule imposed for safety reasons. There is no direct evidence to suggest that the Respondent was motivated in imposing this warning by reasons associated with the Complainant having made a complaint to a Rights Commissioner in October 2013, nor can the Court see anything in the surrounding circumstances from which an inference could reasonably be drawn that the Respondent was so motivated.
For all of the reasons set out herein the Court has concluded that the Complainant was not penalised by the Respondent in contravention of s.26 of the Act. The decision of the Rights Commissioner is affirmed and the within appeal is disallowed.
Signed on behalf of the Labour Court
25th May, 2016Chairman
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.