ADJUDICATION OFFICER DECISION
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00005375-001 | 20/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005375-002 | 20/06/2016 |
Date of Adjudication Hearing: 08/12/2016
Workplace Relations Commission Adjudication Officer: Caroline McEnery
Procedure:
In accordance with Section 41(4) 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 was an employee of the Respondent.
The Complainants complaints are as follows:
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969
The Industrial Relations issue relates to Bullying and Harassment in the workplace.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
The Pay Complaint relates to the complainant not getting compensation for working on a Sunday.
The Complainant confirmed that he never received a contract of employment or a handbook at any stage.
The Complainant confirmed that he was in college also and that this was a part time job.
The Complainant stated that he worked 25 hours during college time, 30 hours when he was not in college and 60 hours during three busy weeks of Christmas.
The Complainant stated that his hours were typically Friday from 6pm – 12pm, Saturday from 1pm – 12am and Sunday 12pm – 10pm.
The Complainant stated that he never received any compensation for working on a Sunday.
The Complainant showed me his payslip which confirmed that all hours were paid at basic rate.
The Complainant spoke about an incident in detail which happened on the 17th of June 2016. The Complainant claims that this was one of many incidents where he was bullied and harassed by a Director of the Respondent Company. He said this was the last straw for him as it was such a bad incident.
He also gave other examples of bullying and harassment experienced by him from this person.
The Complainant informed me that there was no grievance procedure in place and that the complainant’s manager couldn’t do anything for him when he spoke to her about the complaint and she stated that because he was the owner there was nothing that could be done.
The Complainant stated that he was embarrassed and upset after being shouted at loudly and repeatedly and left work 3 weeks after the incident and was certified as sick due to work related stress directly after the incident.
Respondent’s Submission and Presentation:
The Respondent did not attend the hearing and I am satisfied they were correctly notified in relation to the hearing.
Decision:
Section 41(4) 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.
Issues for Decision:
The Adjudicator must decide if the complainant did not receive payment for Sunday working.
The Adjudicator must decide if the complainant was the subject of Bullying and Harassment in the workplace.
Legislation involved and requirements of legislation:
The Complainant states that he did not receive compensation for working on Sundays
Organisation of working Time Act
14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
(d) by a combination of two or more of the means referred to in the preceding paragraphs.
The Complainant states that he was subject to Bullying and Harassment and that there was no procedure in place by the company to deal with the issues.
For the purpose of this Code of Practice the definition of workplace bullying is as follows:
5. Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another
or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual's right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”General Provisions
6. The main purpose of this Code of Practice is to set out, for the guidance of employers, employees and their representatives, effective procedures for addressing allegations of workplace bullying. The Code sets out both an informal and formal procedure.Section 71 of the Industrial Relations Act, 1946 states:
(1) Where the Court becomes aware that a trade dispute has occurred resulting in a stoppage of work in any trade or industry the Court may investigate the dispute, if satisfied that no trade union of workers is promoting or assisting the dispute.
(2) Where the Court decides to investigate a trade dispute in accordance with this section the following provisions shall have effect—
(a) the Court shall cause to be published in at least one newspaper circulating in the area in which the dispute has occurred notice of the time (which shall be not less than two clear days after the date of publication of such newspaper) and place at which the Court will sit to take evidence in relation to the dispute from persons concerned therein;
(b) the Court shall, at such sitting or any adjournment thereof, take evidence in relation to the dispute from all persons, appearing before it to give evidence, who, in the opinion of the Court, are concerned in the dispute;
(c) on hearing evidence the Court shall, as it thinks proper—
(i) decide not to take any action in regard to the dispute, or
(ii) publish a recommendation setting forth the opinion of the Court on the merits of the dispute and the manner in which it should be settled, or
(iii) make an award (which shall not be inconsistent in its terms with a registered employment agreement, within the meaning of Part III of this Act), setting forth the conditions on which, in the opinion of the Court, the dispute should be settled.
Decision:
Bullying and Harassment
The respondent did not attend the hearing to defend the claim. The complainant said he had to leave his employment due to the Bullying and Harassment experienced during his employment.
The Complainant was a student and said he needed his job so accepted an amount of shouting and inappropriate behaviour which constituted bullying and harassment in the kitchen from the Respondent.
However the incident on the 17th of June 2016 was so upsetting and embarrassing for the Complainant that he felt he had to leave his employment as there was no grievance/ bullying/ harassment procedure in place and when he raised the issue with his manager she said there was nothing she could do as the Respondent was the Company Director.
The absence of an appropriate Grievance / Bullying/ Harassment policy and procedure and the inappropriate behaviour occurring and not being addressed has resulted in the Complainant leaving his job due to stress, upset and embarrassment caused. The Respondent Company failed to provide the Complainant with a safe work environment by not having the correct policy and procedures in place which they are obliged to as an employer to do.
I therefore uphold this claim and issue the employee 12 months wages €11,960 which is as compensation which is not taxable.
Sunday Pay
Again this claim was not contested by the Respondent as they did not attend the hearing. There was no contract in place according to the complainant and there was no premium paid for Sunday. The Complainant was paid minimum wage. He worked nearly every Sunday from 12pm to 10pm. He showed me a sample payslip to confirm all hours he had worked were paid at basic pay.
It is clear from section 14 above that an employee is entitled to compensation for the requirement to work on Sunday.
I find 10% of basic rate is a reasonable amount to be paid as compensation for Sunday working in the restaurant industry and have applied that compensation to this complaint as follows: €9.15 x 9 hours = €82.35 x 100 weeks = €823 which his taxable as it constitutes wages.
Due to the breach of legislation, I also compensate the Complainant €1,000 due to the breach in legislation which is compensation so is not taxable.
Dated: 24 April 2017