ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00005559
Parties:
| Complainant | Respondent |
Anonymised Parties | A security guard | A provider of security and cleaning services |
Representatives | Michael Morrissey BL, instructed by Abacus Legal Law Firm | Adare Human Resource Management |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007751-001 | 21/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00007751-002 | 21/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00007751-003 | 21/10/2016 |
Date of Adjudication Hearing: 05/05/2017
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 21st October 2016, the complainant referred complaints pursuant to the Organisation of Working Time Act, the Terms of Employment (Information) Act and the Unfair Dismissals Act. The complaints were referred to adjudication on the 5th May 2017.
The complainant attended the adjudication and was represented by Michael Morrissey, BL instructed by Abacus Legal. Accompanied by family members, the respondent attended the adjudication and was represented by Adare Human Resource Management.
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant worked for the respondent between the 2nd April 2012 and the 22nd April 2016. His gross pay was €332 per week. The respondent is a private individual trading as a business name, engaged in contract cleaning and security. The complainant asserts that he was constructively dismissed and the respondent disputes the claim. |
Summary of Complainant’s Case:
In submissions, the complainant outlines that he worked every public holiday over the four years of his employment. In or around the 13th October 2015, he asked to be paid back pay for these public holidays. He was then removed from one role and his hours were greatly reduced. He states that he was punished for seeking what was rightfully his. He and his family could not live on the reduced hours and he had no choice but to resign. He denies the allegation of watching pornographic material on a workplace device or the allegation that he had wrongly claimed to have investigated a noise complaint from an apartment. These allegations did not merit the issue of the final written warning on the 7th December 2015.
In respect of the complaint made pursuant to the Organisation of Working Time Act, the complainant submitted that this adjudication had the inherent jurisdiction to go back over the full four years of his employment. He claimed for 36 public holidays in this period. The complainant submitted that the statement of the terms of his employment was provided to him later than the two months required by the Terms of Employment (Information) Act. He submits that the information provided in the statement does not meet the requirements of section 3, for example in giving two different titles for the role.
In respect of the unfair dismissal claim, the complainant submitted that his working hours were reduced from 36 hours to 16 hours per week, spread over four hours on four days. He had requested additional hours over a period of five months. Since he resigned, he had applied for many jobs but had not obtained alternative employment. He confirmed that he was licenced in his own right by the Private Security Authority and had sought work in this field. The complainant outlined that there was no evidence of misconduct against him, i.e. the pornographic material. He said that other people had access to the computer device and could have accessed this material. There had not been an investigation into this matter. The respondent had not explained the consequences of the meeting of the 30th November 2015 and he was not supplied with the minutes of the meeting.
In reply to the respondent, the complainant said that on the 10th October 2015, he responded to a noise complaint regarding the occupants of the apartment that later complained about him. He commented that a handwritten note in a diary was not his note but the note of the 10th October 2015 was his. He said that the screenshots produced by the respondent do not clearly link his use of the device with the pornographic material. The complainant said that his hours were reduced to 16 hours after he threatened to go to the Workplace Relations Commission.
In closing submissions, the complainant outlined that his employment was no longer viable when his hours of work were reduced from 36 hours to four hours on four days. This was work on four days between 8pm and midnight. He raised this with the respondent, for example a text message of the 16th April 2016 where he asked for more hours. He submitted that it was unreasonable for him to remain in employment with this reduced number of hours. There had been an insufficient basis to ground the disciplinary action against the him. He had addressed the noise complaint. There was no authoritative report to link the complainant to the material accessed and others had access to the device. |
Summary of Respondent’s Case:
In submissions, the respondent denied the complaints. He asserted that the complainant had worked two public holidays in 2016 and was paid double for this work. It disputed that monies were owed for 2015. He submits that the complainant’s hours were reduced following the respondent losing a client, an apartment owner management company. This arose following the complainant accessing pornographic material while at work on a device belonging to the owner management company.
As a preliminary issue, the respondent asserts that the complaint of unfair dismissal is made outside of the limitation period of six-months. He further asserts that the complainant has not shown reasonable cause for the late submission of the complaint. He submitted that the text messages of the 15th and 16th April 2016 were when the complainant resigned. As the complaint was referred to the Workplace Relations Commission on the 21st October 2016, it was out of time.
The respondent outlined that the complainant’s hours were reduced to 16 hours per week on the 16th October 2015. His wage was €172 per week from October 2015. This was because the respondent had lost a named client, which in turn resulted from the complainant’s interactions with a named apartment. There was a complaint from this client of the 13th October 2015 regarding the use of a device. The respondent issued a final written warning to the complainant on the 7th December 2015.
In reply to the complainant, the respondent said that the complainant continued to work after the final written warning was issued. The respondent stated that he had refused to sign an incorrect form for the complainant’s application for Family Income Supplement. He stated that the complainant was paid for all days he worked and had not submitted a grievance. The respondent pointed to the email of the 13th October 2015 which referred to the internet history issue and no reference had been made to the noise complaint. He said that the complainant could be seen sitting at the reception desk at the “alleged” time of the noise complaint.
In closing comments, the respondent outlined that the complainant had not met the legal test applicable to constructive dismissal cases. The date of the complainant’s resignation was the date of the text message. It was submitted that the complainant had accessed pornographic material. The complainant had not presented sufficient efforts of mitigation and he had been offered alternative cleaning work, which he turned down. The respondent had got the complainant a Safe Pass qualification for construction work, but the complainant only wanted security work. The respondent said that he always filled in the FIS forms but would not fill in an inaccurate one. |
Findings and Conclusions:
CA-00007751-001 This complaint is made pursuant to the Organisation of Working Time Act. It is well-established that the date of contravention for a breach of the public holiday provision in section 21 of the Organisation of Working Time Act is the day of the public holiday. The complaint was referred on the 21st October 2016 and the complainant did not work any public holidays in the six months that preceded the complaint, his employment having ended in April 2016. The complaint is, therefore, not well founded.
CA-00007751-002 This complaint is made pursuant to the Terms of Employment (Information) Act. The complainant’s employment commenced in April 2012 and two statements were provided to him in September 2012. This is later than the two-month period provided for such a statement to be provided. In assessing when the date of contravention is for a breach of section 3, it is necessary to differentiate between situations where a statement is never provided to one where it is provided, but outside of the two-month period. Where the statement is never provided, there is an ongoing breach and the contravention subsists until the end of the employment. A claim can therefore be taken within six months of the end of the employment. Where a statement is provided, albeit later than two-months, the latest day of contravention is the day preceding the provision of the statement. The limitation period to take a claim commences on the day before the breach is rectified and covers the period in which the employee should have had a statement. In this case, this would have been between June and September 2012. As a statement was provided in September 2012, the complaint is now out of time.
For completeness, I note that the statement provided covers the requirements of section 3. The complainant has not pointed to any loss he incurred in the delayed provision of the statement.
CA-00007751-003 This complaint is made pursuant to the Unfair Dismissals Act. In respect of the preliminary point raised by the respondent, I find that the date of dismissal is the 22nd April 2016 and that the complaint is within time. I base this finding on the respondent’s own letter of the 22nd April 2016, which opens “Following on from our conversation in the office this morning, the 22nd April 2016, I would like to confirm that we have received your resignation from your position in [respondent trading name] which was signed by you and handed to myself today.” This states that the date of resignation is the 22nd April 2016.
There are circumstances where the manner in which a disciplinary process provides an employee with grounds to assert constructive dismissal (see McKenna v Pizza Express Restaurants Ltd [2008] 19 E.L.R. 234). In this case, the complainant was subjected to a disciplinary process following two incidents that arose in October 2016. He was issued with a final written warning and was continued to be offered work. The respondent lost a client in late 2015 (and says that this was because of the complainant’s actions). Whether or not the complainant did the actions alleged of him by the respondent, I accept that the respondent lost this client. I accept that this was the reason the complainant no longer had the shifts at the apartment block. He retained his other place of work, another development run under the auspices of an owner management company. This was four hours work on four days. I appreciate that work being spread out over four days may have had an impact on the complainant availing of social welfare support, for example the Family Income Supplement. I note, however, that the complainant had worked these same hours at this location for some years.
Taking these factors together, I find that the complaint of constructive dismissal is not well founded. While the complainant’s hours were reduced, this was due to the loss of a client and he continued to be offered work. The disciplinary process was completed with the issue of the final written warning to remain on his file for 12 months. The respondent resiled from an original decision to dismiss the complainant summarily. The disciplinary process cannot be described as so oppressive to allow the complainant to consider himself to have been dismissed by the actions of the respondent, in circumstances where the respondent corrected his hand. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00007751-001 For the reasons set out above, the complaint made pursuant to the Organisation of Working Time Act is not well founded.
CA-00007751-002 For the reasons set out above, the complaint made pursuant to the Terms of Employment (Information) Act is not well founded.
CA-00007751-003 For the reasons set out above, the complaint made pursuant to the Unfair Dismissals Act is not well founded. |
Dated: 11th April 2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Organisation of Working Time Act / public holidays Terms of Employment (Information) Act / date of contravention Unfair Dismissals Act McKenna v Pizza Express Restaurants Ltd [2008] 19 E.L.R. 234 |