ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00009820
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00012862-001 | 30/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00012862-002 | 30/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00012862-003 | 30/07/2017 |
Date of Adjudication Hearing: 19/01/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 30th July 2017, the complainant referred complaints to the Workplace Relations Commission pursuant to the Unfair Dismissals Act, the Terms of Employment (Information) Act and the Organisation of Working Time Act. The complaints were scheduled for adjudication on the 19th January 2018. The complainant attended the adjudication and was represented by Leo Costello, Citizens Information Centre. A former employee of the respondent attended to give evidence on the complainant’s behalf. The respondent was represented by Anne O’Connell Solicitors and three witnesses attended on its behalf. They are referred to in this report as the manager, the supervisor and the administrator.
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 andSection 41 of the Workplace Relations Act, 2015 following 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 asserts unfair dismissal, a breach of the Terms of Employment (Information) Act and an entitlement to public holiday pay. The respondent denies the claims and asserts that the complaint made pursuant to the Terms of Employment (Information) Act is out of time as it was not made within six months of the expiry of the two-month period a statement should be provided to the employee. |
Preliminary point – the complaints are already litigated:
The respondent submitted that these complaints were already litigated and could not now proceed. It outlined that the complainant lodged these three claims on the 30th July 2017. The complainant had submitted another set of complaints in December 2016 and March 2017 and this was referred to adjudication in June 2017. The parties attended this adjudication hearing on the 28th June 2017. This led to an agreed resolution between them. There was no consideration in respect of this agreement. The respondent had given an undertaking regarding the complainant’s hours of work on her going back to work. There was a resolution and this invokes res judicata. Section 13 of the Unfair Dismissals Act did not apply. The respondent also relied on Henderson v Henderson [1843] 3 Hare 100, which has wider application. The respondent outlined that the resolution allowed the complainant 24 hours to decide whether to go back to work or to resign. She made the decision to resign. The respondent reserved its position in respect of judicial review.
The complainant gave her account of the adjudication hearing of the 28th June 2017, both of time spent in inter-partes session and of time spent in caucus. She said that it was wrong that all her claims were withdrawn, including the Terms of Employment and the Redundancy Payments claims. The complainant indicated that she was dismissed on the 31st December 2016. She had been off in December for personal issues but no work was forthcoming from the respondent in January 2017. One of her colleagues was in Australia and this was a busy time of year, so she expected there to be work for her at the respondent. |
Finding on the preliminary point:
The respondent submits that the three complaints advanced by the complainant on the 30th July 2017 cannot proceed as they refer to matters already litigated. It submits that an adjudication hearing of the 28th June 2017 led to a resolution. The respondent accepted that there had been no consideration with this resolution and does not describe this resolution as a settlement. The respondent refers to the doctrine of res judicata and the rule in Henderson v Henderson.
Having considered the submissions of the parties and adjourned for some time to consider their arguments, I explained to the parties that I could hear the complaints lodged by the complainant on the 30th July 2017. I gave an outline of my reasoning at the hearing. First, it is clear that the matter was not settled by the parties. Referring to the principles set out by the Labour Court in Sunday Newspapers Ltd v Kinsella and Bradley [2007] IEHC 324, the complainant cannot be said to have waived her rights, given the lack of consideration. It is further clear that the resolution reached at the earlier adjudication hearing did not lead to findings or determinations of the earlier complaints. The doctrine of res judicata does not, therefore, apply.
There may be circumstances where a complainant who submits and then withdraws a claim, only to later re-submit a similar claim, amounts to a vexatious act within the ambit of section 42 of the Workplace Relations Act. In the circumstances of this case, however, the actions of the complainant do not prevent the 30th July 2017 complaints from proceeding. The complainant did not act in bad faith. I find that these are matters that were not previously litigated and the rule in Henderson v Henderson does not apply. |
Summary of Complainant’s Case:
The complainant outlined that she worked for the respondent between the 2nd May 2014 and the 31st December 2016. In March 2015, she received a diagnosis of an auto-immune condition, which caused her chronic pain. Her responsibilities were reduced and later her hours were reduced to two shifts per week. She was involved in an incident with an IT consultant on the 9th November 2016, leading her to make apology to the IT consultant. The manager then suggested that the complainant take annual leave. The manager said she would re-distribute the complainant’s hours and suggested that the complainant invoice the respondent for cover work. The complainant submitted that the respondent intended to dismiss her by not providing hours of work and by giving those hours to others. Her hours were reduced from 11 hours per week to nil. She was constructively dismissed or was entitled to a redundancy lump sum. She states that her financial loss from January 2017 to the date of this adjudication is €3,566.25.
The complainant outlined that her hours were reduced from three shifts to two shifts per week in July 2016. She agreed to this reduction. She was paid €9.25 per hour for 11 hours per week. Taking the 31st December 2016 as her date of dismissal, the complainant has incurred financial loss of €5,596 and she had earned €2,030 in this period. The complainant outlined that she has a longstanding role as a presenter on a radio station and continued this role in 2017. She worked in the media role every day, Monday to Friday mornings. She incurred financial loss in not been given hours as she lost out on afternoons shifts. The complainant outlined that she had looked for alternative employment between January and June 2017 and happened to get a job in July. She said that she worked as a dog walker for 29 weeks from the 3rd July 2017. She was paid €10 per hour and worked, on average, seven hours per week. Her total income on this period was €2,030. The complainant outlined that she did not receive a contract or a statement of the terms of her employment. In respect of holidays, the complainant said that she did not receive holidays and was entitled to holidays.
In cross-examination, the complainant was asked why she did not come back to work on the 29th June 2017; she replied that at the hearing of the 28th June 2017, she agreed that she would return to work. Overnight, she decided that with the treatment she received in November and December 2016 and the submission to the WRC, she feared a toxic environment. The submission of the respondent had been sent the day before so she had read them. It was put to the complainant that the manager had said she would be welcomed back and could this have been resolved without her resignation; she replied that she did not think it could be resolved. She felt it was going to be a toxic environment. She could not contact the CEO, who had taken the complaint from the previous manager and she had no opportunity to respond. It was put to the complainant that the meeting of the 29th November 2016 was about the complaint against her and gave her the opportunity to give her side of the story. It was put to the complainant that she became upset at the meeting. The complainant replied that she had held her hands up and emailed an apology. She said that in the phone call of the 7th December 2016, the manager laughed and said that my apology email was convoluted, but she had described it as clear in a Facebook message.
It was put to the complainant that the respondent had facilitated her at this time; she replied that it was coming up to Christmas and she was afraid that she would be bullied out the door if she returned. She had not been bullied before and she had seen the mistreatment of others. It was put to the complainant that she had given an undertaking at the first adjudication hearing; she replied that she knew of others who faced her situation, giving three names. The complainant said that over the summer of 2016 she had offered to cover a colleague’s hours while she was to be away in Australia. The complainant had no hours at the radio station as it was closed over Christmas. The manager said that the complainant should just write it on the form, which she did. In the telephone call of the 29th November 2016, the Manager did not mention this colleague’s Christmas hours.
In further cross-examination, it was put to the complainant that she had said on the 29th November 2016 that she would contact the manager when she was ready to return; she replied that she had said she would be returning and made herself available for cover work. The manager said that the complainant would be contacted for cover work. The complainant was asked whether this was different to the situation in March 2016; she replied that she was told that her hours were being redistributed to others and this was different. It was put to the complainant that her email of the 7th March 2017 portrayed the respondent’s phone call of the 29th November 2016 as amounting to her dismissal, so why was she expecting a phone call afterwards; she replied that the manager said she would phone with hours. It was put to the complainant that the rotas showed her hours were covered and not that she was dismissed; she replied that her understanding was that she would be back in January 2017. The complainant was asked why she had not emailed or phoned the manager; she replied that she had already started the WRC process and was blocked from contacting the manager on Facebook. The complainant said she assumed she would be contacted in early January 2017 for cover work. It was put to the complainant that in June 2017, her hours were available but she had resigned. It was further put to the complainant that while she said it was potentially a toxic environment, she never tried to get her hours back. The complainant was asked why did she think she had no option but to resign; she replied that her hours could be taken away again and she was not 100% confident. She was worried about going back.
The colleague of the complainant gave evidence. She said that she started working for the respondent in December 2015 and reported to the manager. She left on the 5th May 2017. There was chopping and changing of shifts, as well as short notice of changes. People sought to swap and this could involve a change made at 10pm. She remembered when the complainant was out sick and management said that they did not know when she would be back. In January 2017, she saw that the complainant’s name was removed from the rota. In cross-examination of the colleague, she had asked if the complainant was coming back. It was put to the colleague that she assumed that the complainant’s name being off the rota meant she was dismissed; she replied that no one told her whether she would be coming back. It was put to the colleague that the contract provided for flexibility; she replied that there was very short notice and the reception area needed more support. She had worked in day care where there was more support. It was put to the colleague that she had not worked in reception and could not know. It was also put to the colleague that she had attacked the manager on the 5th May 2017; she said that this was not true and a barbaric statement to make. It was put to the colleague that she had texted the manager to say that she was “f*cking poison”.
In closing submissions, the complainant stated that there are disputes in evidence and it is a matter which one the adjudication officer believes. The complainant is the wronged person here and she hopes that the adjudicator finds for her. She could be entitled to annual leave but she did not work between January and June 2017. The complainant never received the contract exhibited by respondent and it is not signed by either party. |
Summary of Respondent’s Case:
In respect of the Terms of Employment (Information) claim, the respondent submitted that this is out of time as it was not made within six months of the date of the alleged breach. The complainant had also not shown reasonable cause for extending time. It was submitted that the complainant commenced employment in May 2014 and as an employer, the respondent had two months to comply with the Act. This meant that the time limit for bringing such a complaint expired in January 2015. The respondent relies on the Labour Court authority of HSE v Whelehan (EDA0923) where it held that limitation periods run from the time a cause of action accrues and not from the date of knowledge unless there is an express statutory provision to the contrary.
In this case, a statement was provided to the complainant within one month of the commencement of her employment, so there was no breach. The complainant had access to the Staff Handbook on her desktop and in respondent’s kitchen. This complied with the requirements of section 3 of the Act.
In respect of the unfair dismissal claim, the respondent submits that it sought to meet the complainant to resolve any misunderstanding. It relied on Berber v Dunnes Stores [2009] 20 ELR 61 and O’Gorman v Glen Tyre Company Ltd (UD 2314/2010) to submit that the complainant had not met the test for constructive dismissal. It submitted that the complainant failed to contact the manager for hours and that two colleagues confirmed that they were not doing the complainant’s hours.
The respondent outlined that it was the complainant who asked to reduce her hours to two shifts and it was not the respondent who suggested this. In August 2016, the complainant asked for this to be permanent. The respondent referred to the Facebook message of the 11th November 2016 from the complainant to a member of staff. Following a complaint, the complainant apologised.
The manager gave evidence. She said that the January 2017 rota was done in December. The complainant was scheduled to cover a colleague’s holidays but said that she could not work these hours. The manager was waiting for the complainant to contact her and this replicated what had happened in previous absences. In cross-examination, the manager denied saying to the complainant to come back to her for relief hours. The complainant had told her that she could not cover the colleague’s hours who had travelled to Australia. It was put to the manager that she agreed for the complainant to be off for the rest of the year; she replied that the complainant had referred to personal issues. It was put to the manager that the complainant was fit for work; she replied that the complainant had annual leave to use up and had previously agreed to work between the 23rd December 2016 to the 16th January 2017. The manager told the complainant to take her holidays and come back to her when she was fit to return. The complainant said that she could not work up to the 16th January 2017.
It was put to the manager that she had never told the complainant to come back to her. The manager was asked whether she said that the complainant’s hours would be given to others. The manager replied that there were two shifts over seven days and the respondent needed more than two receptionists. It was put to the manager that she had said that she was distributing the complainant’s hours, who was never encouraged to come back. The manager replied that in previous times when there was no date of return, the complainant would come back to her. It was put to the manager that there had been an implicit date of the complainant’s return in January 2017; the manager did not accept this and the complainant had said she could not do the colleague’s January hours. It was put to the manager that the complainant’s case was that there was a return date. It was put to the manager that the complainant did not feature on any rota between January to April 2017. The manager replied that she had been waiting for the complainant to contact her. There were absences throughout 2016 and she left it the same way on those occasions. The manager was referred to her email to the complainant of the 23rd February 2017 where she said she had no knowledge of the complainant’s illness; she replied that when she took over as manager in December 2015, the complainant was already on reception. It was put to the manager that the complainant had discussed her condition with her; she replied that the complainant had not taken any time off for this reason and had discussed personal issues and the passing of her friend.
The manager did not accept that she changed around people’s hours to such an extent that they left. She said that she was stuck for people and this was casual employment. Many people had other jobs and the complainant was facilitated with her other employer. It was put to the manager that the rotas were haphazard; she said that this was not true and the rotas were changed because of staff illness. The manager described an incident with the complainant’s witness. She said that the witness had slammed the door and called her a “whore”. The manager had told the witness that she need time to draft a reference. This was a verbal attack on her. It was put to the manager that her last phone call with the complainant was in late November 2016; the manager referred in reply to a conversation on the 7th December 2016 and to an email.
In redirection, the manager said that in March 2016 the complainant had been upset and took two weeks’ annual leave. She returned after this leave. The complainant had not given a specific date she would return following her leave in December 2016. She had reminded the complainant of her agreement to cover the colleague’s annual leave. The manager said that this left her stuck and the complainant was then to come back to her. The manager said that she was going to contact the complainant in February 2017 as another colleague was leaving. The complaint to the Workplace Relations Commission stopped her from offering the complainant more hours. The complainant was in touch with her after she resigned regarding a data access request.
The respondent submitted that the date of resignation was the 29th June 2017 as she had been offered hours before this. The complainant had not availed of internal procedures and the submissions related to events in 2016. The complainant cannot meet the bar for constructive dismissal. In relation to whether the complainant was redundant, hours were made available to the complainant. It was submitted that at no time was the complainant dismissed. There was no resignation until the 29th June 2017. She had not submitted a grievance and there was no opportunity for the respondent to remedy the issue. The complainant was offered her hours of work. The respondent had not tried to change the complainant’s hours and this was a misplaced fear on her part. The complainant had failed to contact her manager to ask for her hours back and instead contacted colleagues in relation to this case. The respondent had made it clear to the complainant that her hours were available to her on the 28th June 2017.
The respondent relied on section 21(4) of the Organisation of Working Time Act to assert that as the complainant has not worked since the 12th November 2016, she was not entitled to public holiday pay. The respondent submitted that the complaints were frivolous and vexatious and it sought expenses of €300 pursuant to the Redundancy (Redundancy Appeals Tribunal) Regulations, 1968. It objected to the certain exhibits of the complainant’s submissions. It stated that the complainant had not shown loss. The complainant could also not make claims on behalf of other staff members and the manager was an established manager in the respondent. |
Findings and Conclusions:
The complainant commenced employment with the respondent on the 2nd May 2014. This was a part-time role in a registered charity and associated entities. She initially worked three shifts per week and this was reduced to two shifts per week. She states that her gross monthly pay was €420. The complainant lodges complaints pursuant to the Unfair Dismissals Act, the Terms of Employment (Information) Act and the Organisation of Working Time Act. The respondent denies the claims.
CA-00012862-001 This is a complaint made pursuant to the Unfair Dismissals Act, where the complainant asserts that she was unfairly dismissed. In submissions, she asserts, in the first instance, that she was dismissed on the 31st December 2016 when the respondent did not provide her with any more hours of work. In her complaint form, the complainant asserts that the date of dismissal is the 29th June 2017. This is when the complainant emailed the respondent in the following terms: “It is with regret that I tender my resignation, effective immediately.” It is clear from the terms of the complainant’s own email and the complaint form of the 30th July 2017 that the date of dismissal was the 29th June 2017. This is, therefore, a claim of constructive dismissal. The issue of the complainant’s hours of work goes to whether the respondent repudiated the complainant’s contract of employment or whether she had reasonable grounds to consider herself to have been dismissed by the actions of the employer.
The classic formulation of the legal test in respect of constructive dismissal was provided by the UK Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. This laid out two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ in the following terms: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The ‘reasonableness test’ assesses the conduct of the employer and whether it “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”
In respect of repudiation of contract, the Supreme Court in Berber v Dunnes Stores [2009] 20 E.L.R. 61, held that the test of whether an employer had breached the implied term of mutual trust and confidence in the contract of employment was an objective one. Finnegan J. held: “1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at. 4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”
In respect of reasonableness, the Employment Appeals Tribunal in An Employee v An Employer (UD1421/2008) held: “In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in section 6(1) of the Act. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”
In Murray v Rockabill Shellfish Ltd [2012] E.L.R. 331, the Employment Appeals Tribunal held at page 333 as follows: “The Tribunal must consider whether because of the employer’s conduct the claimant was entitled to terminate his contract or it was reasonable for him to do so. An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. In the case of Brady v Newman UD330/1979, the Tribunal stated at pp 9-10: “… an employer is entitled to expect his employee to behave in a manner which would preserve his employer’s reasonable trust and confidence in him so also must the employer behave.”
There was considerable conflict between the parties as to what transpired between the complainant and the manager in late 2016. The complainant asserted that the manager told her on the 29th November 2016 that her hours were being re-distributed to others. The complainant further states that her role changed to providing cover for others. The respondent presents a very different account. It asserts that the complainant took time off and did not cover a colleague’s hours. It states that it was waiting for the complainant to indicate she was ready to resume work. The manager outlined that the notification of the WRC complaint stopped her offering the complainant more hours.
It is obviously difficult to resolve such a profound conflict of evidence. In such circumstances, it is prudent to look at the case, having resolved all the conflicts of evidence in the complainant’s favour to see whether she meets the legal test for constructive dismissal. If she cannot meet the legal test, having taken these steps, then her case cannot succeed. As part of this exercise, I resolve the conflicts in her favour. On the 29th November 2016, the manager intimated that the complainant would lose her hours and could seek cover work in the new year. She and the manager worked on the text of emails to send to the respondent. The complainant took time off at the end of 2016. She feared not receiving hours in January 2017 and asked colleagues whether their hours had changed. The first complaint was made to the Workplace Relations Commission on the 20th January 2017 (which is not before this adjudication).
On the 23rd February 2017, the manager emailed the complainant following receipt of this complaint. She stated that the respondent considered the complainant to still be an employee. In her reply of the 7th March 2017, the complainant refers to her hours being re-distributed to colleagues and that this is the basis of her claim. The manager replies that the complainant has misunderstood their November conversation and that they had not had the opportunity to discuss options following rota changes. The manager offers to the meet the complainant, an offer she declines.
Having resolved the conflicts in evidence in the complainant’s favour, I find that the complainant had a set working pattern of two days per week. The respondent purported to change this. The complainant took time off and was not allocated additional hours. In assessing whether the test for repudiation of contract is met, I consider this both from the complainant’s working hours being a contractual term and whether there has been a breach of the term of mutual trust and confidence. I note that when the complainant set out her complaint in the first WRC complaint form, the manager responded in an engaged and open way. The manager says that the complainant remains an employee and later raises options regarding her hours. In these circumstances, the issues raised by the complainant regarding her hours of work do not amount to repudiation. There remained scope for the complainant to assert what working hours she wanted and the other outstanding issues arising from the conversation of the 29th November 2016. The events were not so significant to amount to repudiation of contract, including of mutual trust and confidence, in the light of the later correspondence from the employer.
In respect of reasonableness, I note that the complainant did not correspond with the respondent regarding her hours in January 2017. In order to meet the reasonableness test, the complainant ought to have corresponded with the respondent at the time or shortly after her enquiries with colleagues. She messaged them about their hours and concluded the fact their hours remained the same meant that she had been unfairly treated. This may have been the case, but in order to meet the reasonableness test, this should have been put to the respondent. There was also opportunity to do so in the correspondence of February and March 2017, but this did not take place. For these reasons, the reasonableness test has not been met.
Taking these findings together, I find that the complainant has not met the legal test for constructive dismissal and the complaint is, therefore, not well founded. For clarity, I find that the complaint was neither vexatious or frivolous and the application for costs is not granted.
CA-00012862-002 This is a complaint made pursuant to the Terms of Employment (Information) Act. The respondent asserts that the complaint made on the 30th July 2017 is out of time as the limitation period is six months after the end of the first two months of employment. It relies on HSE v Whelehan to submit that the contravention occurs at the end of the initial two months of employment and it is a contravention that does not subsist during the employment relationship. The complainant’s employment commenced on the 2nd May 2014 and the end of the two-month period is the 1st July 2014. For completeness, the dispute resolution elements of the Workplace Relations Act came into force on the 1st October 2015.
The respondent argues in the alternative that the complainant was provided a statement of the terms of her employment at the commencement of her employment. The complainant denies receiving the document exhibited by the respondent. It is necessary to first consider this issue as, if the respondent is correct, there is no need to consider the broader, limitation point. Having considered the evidence, I find that the statement was not provided to the complainant. I reach this finding because the respondent has not provided evidence of when and how it was provided to the complainant. The document exhibited is also not signed and there was insufficient evidence regarding the documentation available online or in the workplace.
Having made this finding, it is necessary to consider whether the complaint was made within the limitation period provided by the Workplace Relations Act and the Terms of Employment (Information) Act.
I have found that the date of dismissal is the 29th June 2017 and this complaint was made on the 30th July 2017. It is made after the end of the employment relationship. Prior to amendment by the Workplace Relations Act, section 7(3) of the Terms of Employment (Information) Act stated: “A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the period of 6 months beginning on the date of termination of the employment concerned.” Under this provision, it is clear that the complaint could proceed.
The question here is whether section 41(6) of the Workplace Relations Act has restricted the limitation period for breaches of section 3 of the Terms of Employment (Information) Act.
Section 41(6) of the Workplace Relations Act provides: “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”
Section 3(1) of the Terms of Employment (Information) Act provides “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”. In this case, I have found as fact that a statement was not provided to the complainant. The essence of the respondent’s submission is that a contravention of section 3(1) occurs when the two-month period expires and no statement is provided. The contravention is the first day after the initial two-month period of employment, where no statement is provided. The argument appears to also submit that there is no subsisting contravention on the second day after the end of the two-month period or on later days. The respondent submits that the complaint must be referred to the Workplace Relations Commission within six months of this single day of contravention.
Section 3(5) of the Terms of Employment (Information) Act provides for the following ongoing obligation: “A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.”
Section 7 of the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, reads: “(1) An employee shall not be entitled to present a complaint under section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 3, 4, 5or 6, if the employer concerned has— (a) complied with a direction under section 6Agiven in relation to the contravention before, on or after the commencement of section 8 of the Workplace Relations Act 2015, or (b) been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired. (2) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5or 6shall do one or more of the following, namely— (a) declare that the complaint was or, as the case may be, was not well founded, (b) either— (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5or 6, or (ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer, (c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer, (d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act. Section 7 covers contraventions of sections 3, 4, 5 and 6 that occur during the employment relationship. Subsection 1 addresses situations where a WRC inspector or adjudicator have given directions regarding compliance with the Act, to which the employer has subsequently complied with. Subsection 2(b) allows an adjudication officer to confirm particulars of a statement, or to alter or add to the statement. Subsection 2(c) allows the adjudicator to require an employer to provide the employee with a statement. If the respondent’s submission is correct, this multiplicity of interventions in respect of a breach of section 3 could only be exercised in the limitation period following the single day of contravention at the end of the initial two-month period of employment.
The Terms of Employment (Information) Act transposes Directive 91/533/EC, the ‘Written Statement’ Directive. It recites Article 117 of the Treaty and point 9 of the Community Charter of Fundamental Social Rights of Workers. Article 2 provides that an employer shall notify the employee of certain essential aspects of the employment relationship. Article 3 provides for the means of information and that the information stated in Article 2 may be given to the employee in certain forms, for example a written contract or letter of engagement. Article 3 refers to this information being provided not later than two months from the commencement of employment. Article 8 requires member states to introduce measures to allow employees to pursue claims via a judicial process. In Kampelmann and Others v Landschaftsverband Westfalen-Lippe (C-253/96 to C-256/96), the Court of Justice of the European Union held that Article 2 is directly effective as against the State and against bodies and authorities under the control of the State.
If the respondent is correct, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, has curtailed the obligations provided in Article 2 of the Directive to a contravention arising on the first day after the end of the two-month period.
In Seclusion Properties Ltd v O’Donovan (DWT14114), the Labour Court held as follows: “It is clear that the obligation on domestic courts and tribunals to interpret national law in conformity with a Directive applies ‘as far as possible’. That is to say, it cannot serve as a basis for an interpretation of national law contra legem. As was pointed out by the CJEU in Dominguez v Centre Informatique du Centre Ouest Atlantique, a conforming interpretation can only be arrived at by taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the Directive in question is fully effective and that an outcome consistent with the objective pursued by the Directive is achieved.”
Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship. Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress. The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement. If the respondent’s submission was correct, the Oireachtas would have clearly stipulated that the interventions permitted by section 7(2) may only be made for a contravention arising on a single day after the end of the initial two-month period of employment.
If the respondent’s submission is correct, section 7(1) is superfluous. This provision prevents an adjudication officer from hearing a complaint where the employer has complied with a previous direction or determination. This section would not be necessary if there could only be one contravention of section 3 arising on a single day. Instead, section 7(1) presents the contravention as a subsisting breach and prevents an employee from submitting a fresh complaint where the employer has complied with the outcome of a previous complaint.
While the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, is clear, in my view, that a breach of section 3 is a subsisting breach, this conclusion is fortified by the application of EU law. First, the Terms of Employment (Information) Act, as amended, does not provide that the only date of contravention is the day after the end of the initial two-month period. Applying a conforming interpretation to sections 3 does not, therefore, require an impermissible contra legem interpretation of the section. Article 2 of the Directive requires that a statement be provided by the employer to the employee and does not limit this requirement to any time period within the employment relationship. Reading section 3(1) of the Terms of Employment (Information) Act in conformity with Article 2 of the Directive leads to the conclusion that the obligation to provide the statement subsists throughout the employment relationship. Article 8 of the Directive requires that employees have recourse where there is a breach and this requires section 41 of the Workplace Relations Act to be read as referring to the failure to provide a statement as a subsisting breach.
For these reasons, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, provides that a contravention of section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement. The contravention of section 3 is a subsisting contravention. If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment.
In the circumstances of this case, I award the complainant redress that is just and equitable, in this case €420, the equivalent of four week’s pay.
CA-00012862-003 This is a complaint made pursuant to the Organisation of Working Time Act for public holiday pay. The complainant claims that she is entitled to public holiday pay up to her resignation on the 29th June 2017. The respondent denies the claim, relying on section 21(4) of the Organisation of Working Time Act and the fact of the complainant’s last day in the workplace being the 12th November 2016.
The relevant parts of section 21 provide as follows: “21.(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely— (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day’s pay: Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom. (4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday. (5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.”
The Third Schedule appended to the Organisation of Working Time Act provides: “Each of the following are the cases mentioned in section 21(5) of absence by the employee concerned from work immediately before the relevant public holiday: 1. such an absence, in excess of 52 consecutive weeks, by reason of an injury sustained by the employee in an occupational accident (within the meaning of Chapter 10 of Part II of the Social Welfare (Consolidation) Act, 1993, 2. such an absence, in excess of 26 consecutive weeks, by reason of an injury sustained by the employee in any accident (not being an accident referred to in paragraph 1) or by reason of any disease from which the employee suffers or suffered, 3. such an absence, in excess of 13 consecutive weeks, caused by any reason not referred to in paragraph 1 or 2 but being an absence authorised by the employer, including a lay-off, 4. such an absence by reason of a strike in the business or industry in which the employee is employed.”
It was not in dispute that the complainant’s absence from workplace from late November 2016 onwards was authorised by the respondent. It was also not in dispute that the complainant was not a whole-time employee.
Section 21(5) refers to “employees” and therefore applies to all employees, be they whole-time or otherwise. Given the complainant’s absence was authorised by the respondent, she accrues an entitlement to public holidays arising from this section and from the third ground of the Table. I find that where a non-whole time employee falls within the ambit of section 21(5) and one of the grounds in the Table, they accrue a public holiday entitlement for the period set out in the Table.
In this case, the complainant accrues a public holiday entitlement for 13 weeks. According to the evidence, the respondent authorised the complainant’s absence on the 29th November 2016. The 13-week period is between the 29th November 2016 and the 27th February 2017. Three public holidays fall within this period: Christmas, St Stephen’s Day and New Year’s Day. St Patrick’s Day, Easter and the May and June public holidays of 2017 fall outside of this time period. The complainant has accrued an entitlement to three paid public holidays and is entitled to redress of €153. |
|
Decisions:
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-00012862-001 I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded.
CA-00012862-002 I find that the complaint made pursuant to the Terms of Employment (Information) Act is well founded and the respondent shall pay to the complainant redress of €420.
CA-00012862-003 I find that the complaint made pursuant to the Organisation of Working Time Act is well founded and the respondent shall pay to the complainant redress of €153. |
Dated: 11/04/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Unfair Dismissal Act / constructive dismissal Terms of Employment (Information) Act / date of contravention and calculation of limitation period Organisation of Working Time, Act / public holiday entitlement during an authorised absence |