ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000179
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00000275-003 | 16/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00000275-004 | 16/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946 | CA-00000275-005 | 16/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00000275-006 | 16/10/2015 |
Date of Adjudication Hearing: 25/04/2016
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The complainant submitted four separate claims. |
The complainant was employed from May 20th 2015 to September 30th 2015 as a Waitress. |
The first complaint was that the employer was not keeping statutory records under a Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012. |
The second complaint was that she was unfairly dismissed and was seeking a review under the Industrial Relations Acts. The third complaint was that she was bullied and harassed and the claim was brought under Section 13 of the Industrial Relations Act 1946. The complainant stated she was continuously harassed by the Head Chef and that she had poor writing skills and that the Head Chef used bad language towards the complainant and called the complainant a gypsie.. The fourth complaint was that she was penalised for invoking entitlements under the Protection of Employees (Fixed Term Work) Act 2003.
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Respondent’s Submission and Presentation:
The Respondent alleged the claims were both frivolous and vexatious and sought for them to be dismissed under Section 42 of the Workplace Relations Act 2015.
The Respondent alleged that the Adjudicator had no jurisdiction to hear the claim under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 as this Act only applies to mobile workers or drivers and as the claimant was a Waitress the Act does not apply to her.
The complainant was hired under a contract of employment which stated her employment will be probationary for the first six months and termination of the employment will be at the discretion of the organisation during the probationary period. The complainants employment was terminated during this probation period with due procedure and no unfair dismissal took place.
The complainant did not specify her exact complaint regarding bullying and as such does not meet the requirements of Section 9 (a), (b) or (c) of the Workplace relations Act 2015. The Respondent has an Anti Bullying, Harassment & Sexual Harassment Policy and Procedure in place and the complainant was furnished with copies of these procedure on May 27th 2015 and the complainant accepted these policies on May 29th 2015. The complainant never raised any issue formally with management or under the stated policies. The claimant resigned from the company and then withdrew the resignation. The complainant was given the opportunity to raise any issues regarding her employment but declined to do so. Any bullying of the complainant was denied.
With regard to the complaint under the Protection of Employees (Fixed Term Work) Act 2003 as the employee was not a fixed term work employee she has no right to take a claim under this Act as she was a permanent employee under a contract of employment with a probation clause.
Decision:
With regard to the issue of whether the claims were frivolous or vexatious I could not make any decision on this issue without first hearing the claims. Having heard the claims I do not find the claims vexatious or frivolous even if some were brought under the inappropriate Acts. The Respondent stated that complainant had the benefit of legal advice regarding the claims.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
With regard to the first claim , as the claimant is not an eligible employee under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 I have no jurisdiction to adjudicate on her claim under this Regulation.
On the second claim, from the submissions I gathered no reason to make a recommendation that would reverse the company’s decision to terminate the complainant’s employment and find that they acted legally to terminate the employment of the complainant within the contract of employment. The complainant’s second claim under the Industrial Relations Acts is therefore not well founded.
I am not sure of the relevance of Section 9 of the Workplace Relations Act 2015 as introduced by the Respondent as it has no material influence on the issues at hand. The Complainant took her claim regarding alleged bullying under the Industrial Relations Act. This implies that as an Adjudicator I try to recommend a solution to both parties regarding the claim which hopefully they would be able to accept or if not appeal to the Labour Court. The Respondent totally refuted the claim and insisted that they had proper procedures in place to address any allegations which the complainant did not follow or utilise during her employment and therefore as the allegations, in their view, were frivolous and vexatious, unclear and delivered outside the Respondents own procedures regarding bullying for the Respondent to engage on the issue would be inappropriate. I have some sympathy with this view expressed by the Respondent as it would be trying to deal with a historical issue that was not raised by the complainant during her employment. In effect there is no resolution which could be acceptable to both sides on this issue. The Respondent also noted the cost to them of defending these claims and were not amenable to any compensation on the issue. Taking all this into account I am of the view that the complainant did not use the company Anti Bullying policy nor did the raise the issue in any formal way during her employment and to try and seek a resolution under the Industrial Relations Act, when she is now a former employee, is not reasonable in all the circumstances. The complainant did not convince me of her allegations nor had she any proof to support the allegations. I am therefore of the view with regard to the third claim under the Industrial Relations Acts that the complaint has no merit and is not well founded.
Under the Protection of Employees (Fixed Term Work) Act 2003 a person must a fixed term employee to pursue a claim under this Act. As the complainant was not employed under a fixed term contract of employment I have no jurisdiction to hear the complainants case.
Dated: 15 July 2016