ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009343
| Complainant | Respondent |
Anonymised Parties | An Executive Assistant | A Financial Services Company |
Representatives | In person | IBEC |
Complaint(s):
Act | Complaint/Dispute 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-00012266-001 | 04/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00012266-002 | 04/07/2017 |
Date of Adjudication Hearing: 19/12/2017
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 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).
Background:
|
Summary of Complainant’s Case:
Organisation of Working Time Act 1997 1. I worked as an executive assistant for the CEO of the Respondent 2. I started working there on 9 January 2017 and finished on 3 May 2017 3. My contract stated that my hours were to be 8.30am to 5.50pm with an hour lunch break, finishing at 4pm on Fridays. 4. However, I did not receive the hour lunch break consistently 5. The reason for this was that I was overworked and I had to allow 2 receptionists go to lunch and cover for their work until they returned. However, when they returned there was usually other work for me to do so I couldn’t take the break. 6. Sometimes I did take a lunch break but it was not consistent. I did not know starting the day whether I would get a break at lunch time, or not. 7. I complained to the CEO about this but he did nothing about it
Unfair Dismissal under the Industrial Relations Act 8. I was dismissed on 3 May 2017 after a period of illness that the Respondent did not deal with appropriately or sympathetically. |
Summary of Respondent’s Case:
Organisation of Working Time Act 1997 1. The complaint that the Complainant did not receive any lunch breaks is denied. 2. The Complainant’s contract states that she is entitled to an hour lunch break 3. The company grievance procedure was not invoked by the Complainant in relation to the allegation that she did not receive a lunch breaks 4. The allegation that she made complaints to the CEO cannot be refuted as he has left the company but the HR director sat across from the Complainant’s desk and stated that she regularly witnessed the Complainant taking a lunch break, although she cannot say whether it was for an hour or not. 5. The Access card records indicate the times at which she entered the business 6. These records run for the duration of her employment and they indicate that the Complainant entered the premises at lunch times on nearly every day, which is evidence that she left the company premises at this time. However, the Respondent accepts that this card also records any time an employee leaves the premises to use the toilet, which is positioned outside the company security area so evidence of that the Complainant left the secure area it is not evidence that a lunch break is being taken 7. The CEO is not present at the hearing as he now is based outside the jurisdiction, however his notes indicate that other complaints were made in relation to the terms of the Complainant’s employment, but there are no records in relation to a complaint about rest periods or lunch breaks. |
Decision/ Recommendation
Decision on CA-00012266-001
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.
In relation to the complaint of insufficient rest periods, the evidence of the Complainant is not disputed by the person to whom was made aware of her grievance, namely her line manager, because he could not attend the hearing. As a result, I find the evidence of the Complainant to be uncontroverted and I find the complaint to be well founded. I award the complainant €1000.00 in respect of this breach.
Award: €1000.00
Recommendation on CA-00012266-002
I make this recommendation in accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by section 13) has been identified and has been referred to the Director General of the Workplace Relations Commission who in turn refers such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to investigate a matter raised and under such an investigation he Adjudication Officer will where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
Having confirmed that the Complainant herein is a Worker within the meaning of the Acts and Having conducted the Investigation as described in Section 13, I, as the so appointed Adjudication Officer, am bound to make a recommendation which will set forth my opinion on the merits of the within dispute.
In relation to the complaint of unfair dismissal under the Industrial Relations Acts I find that there were no proper procedures adopted by the Respondent to warn the Complainant that her position was in jeopardy. I find that her evidence of a lack of fair procedures in relation to her dismissal is uncontroverted as her line manager was not available to give evidence at the Adjudication hearing. As such I find this complaint to be well founded however I also find that that the Complainant’s conduct contributed to the dismissal. I do not find that it was part of the Complainant’s job duties to book a hotel room for a manager who was not her line manager. However the way that she expressed this refusal was inappropriate and was based on hearsay beliefs about this manager, which was inappropriate. In this way, I find that she contributed to but was not the cause of the dismissal. In all other respects, I find the Complainant to be straight forward and honest. Taking into account of the finding of contribution, I recommend an award of €6000.00 to compensate the Complainant for the dismissal being procedurally and substantively unfair.
Award: €6000.00
Total Award: €7000.00
|
Dated: 17.04.2018
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
|