ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00016128
Parties:
| Complainant | Respondent |
Anonymised Parties | A Salesperson | A Sales Company |
Complaints:
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-00020944-001 | 01/08/2018 |
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-00020944-002 | 01/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00020944-003 | 01/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00020944-004 | 01/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00020944-005 | 01/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00020944-006 | 01/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00020944-007 | 01/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00020944-008 | 01/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00020944-009 | 01/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00020944-010 | 01/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007 | CA-00020944-011 | 01/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00020944-012 | 01/08/2018 |
Date of Adjudication Hearing: 23/01/2019
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints/disputes to me by the Director General, I inquired into the complaints/disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/disputes.
Background:
The complainant had been employed from June 19th, 2017 to March 27th 2018 by the complainant on the basis of a gross monthly salary of €1768.50. Note. Complaints CA-00020944-002, 008, 011 and 012 were withdrawn by the complainant at the hearing. |
Summary of Complainant’s Case:
The key incident giving rose to the complaint occurred on March 25th, 2018. At 9.30 the complainant received a phone call telling him to be available for a conference call later that morning at 11.00. He had an optician’s appointment at 10.00 and a previously arranged appointment with a customer at 11.00. He did not participate in the call. His various complaints are summarised as follows. CA-00020944-001 relates to an alleged breach of the maximum permissible working hours per week CA-00020944-003 relates to a request to go to Wexford at short notice in breach of the Terms of Employment (Information) Act and which deprived him of a meal break. CA-00020944-004 relates to an allegation that he had a ‘zero hours’ contract. CA-00020944-005 concerns a change in his hours in breach of the Terms of Employment (Information) Act, 1994. CA-00020944-006 is a complaint under the Industrial Relations Act of unfair dismissal. He says that a meeting on March 27th was an investigation and disciplinary meeting. He had been suspended the day before. CA-00020944-007 is a complaint under the Industrial Relations Act related to alleged bullying and harassment. CA-00020944-009 is a complaint under the Health, Safety and Welfare at Work Act, alleging that he did not have suitable weatherproof clothing. The complainant also said that the unfair dismissal was an act of penalisation. CA-00020944-010 is a complaint under the Protected Disclosures Act, alleging that late payments, the health and safety issue raised under 009 was an act of penalisation under this Act also. CA-00020944-010 is a complaint under the Protected Disclosures Act, alleging that late payments, the health and safety issue raised under 009 was an act of penalisation under this Act also.
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Summary of Respondent’s Case:
On March 6th, 2018 while on sick leave the complainant made calls to co-workers distracting and interrupting them. He made statements critical of the respondent including that it had underpaid him. Following investigation these allegations were found to be without foundation and were accepted by the complainant as such. Other important underperformance by the complainant was also identified; failing to complete key performance indicators, not working contracted hours, and failing to complete journey plans. On March 12th he was given an oral warning. Despite this he continued to phone his co-workers, suggesting to them to ignore management instructions. At this stage the complainant was advised that continuing this conduct could result in further disciplinary action. This was the purpose of the conference call set up with the complainant on March 26th. However, the complainant did not participate. Previously on March 25th a manager had telephoned the complainant at 19.30 to discover that he was at home, despite being rostered until 19.30. he responded that he had been at work since 11.00 even though this was the time he had been due on the conference call. When questioned about this he said that he had been at the opticians until 11.15. He was invited to a disciplinary meeting on March 27th following which he was dismissed for failing to keep his manager advised as to his movements, fulfil key performance indicators, his interactions with his co-workers referred to above, failing to complete his contracted hours and failure to attend the conference call. He appealed unsuccessfully and his employment terminated. |
Findings, Conclusions and Decision:
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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make recommendations in relation to the disputes.
Some flavour of the difficulties that arose from the case may be garnered from the multiplicity of complaints listed above. The ethos and mission of the WRC is to provide complainants with easy access to a system of redress and justice, without necessarily incurring costs associated with the courts system, and through the relative informality of the adjudication service to enable them to do so in person. The right of a complainant to make numerous complaints is not in question, but some elementary obligation falls on a would-be complainant to identify the appropriate legislation to match the complaint and to avoid unnecessary duplication. In addition, there must be some elementary indication that the complaint being made meets any minimum threshold just above vexatious. Some forbearance in this regard will always be shown within the law and the rules and procedures of the WRC, especially to unrepresented complainants in the interests of justice. This is a case where that forbearance was stretched to its outer limits. Not only was the complainant’s preparation of the submission of his complaints entirely inadequate, his preparation for the hearing was, if anything worse. All that is expected of an unrepresented party is that some facts supporting a complaint are presented in a way that the other party can respond and the adjudicator can make a fair assessment of the merits of the case. At times the complainant seemed totally confused as to what his own case was and quite unprepared to present it. Four of the complaints were withdrawn on being subjected to preliminary case management scrutiny because they were selected without any regard to their applicability. In respect of some others, complaints were made without any apparent effort by the complainant to check whether the facts grounded any prima facie case, and some were clearly vexatious. Even those which rose above this level were not significantly better. CA-00020944-001 relates to an alleged breach of the maximum permissible working hours per week. But the complainant could produce no evidence that he had worked hours in excess of those permitted by the Act and the respondent produced conclusive evidence that he did not. He did not dispute the respondent’s submission that he worked 43.5 hours per week CA-00020944-003 arose from a request to go to Wexford at short notice which represented a change in his working hours and which deprived him of a meal break. The respondent did not dispute that it occurred, but it was an isolated incident. CA-00020944-004 was a complaint in relation to a ‘zero hours’ contract. He accepted that he did not have a zero hours contract. CA-00020944-005 concerns a change in his hours in breach of the Terms of Employment (Information) Act, 1994. The respondent showed that he had been notified of the change in question. CA-00020944-006 is a complaint under the Industrial Relations Act of unfair dismissal to which I return below. CA-00020944-007 is a complaint under the Industrial Relations Act related to alleged bullying and harassment. The complainant offered no evidence. CA-00020944-009 is a complaint under the Health, Safety and Welfare at Work Act, alleging that he did not have suitable weatherproof clothing. The complainant’s case was that he was obliged to walk from his car to a customer’s door, occasionally in inclement weather. I consider this to be a facetious complaint. CA-00020944-010 is a complaint of penalisation in retaliation for having made a complaint under the Protected Disclosures Act. The complainant had not made a disclosure under that Act. Returning to CA-00020944-006 in relation to the termination of the complainant’s employment the respondent stated that it fully investigated all incidents which formed the basis of the disciplinary hearing. He had been the subject of a warning and had made certain commitments as to his conduct which he did not honour. The complainant was given notice of the meeting which was not entirely satisfactory. It did not specify that the meeting was a disciplinary hearing, (being described as a ‘Formal Meeting’ only) although its purpose is very clear from the context; for example he is put on notice that his job is at risk (again the author displays a lack of familiarity with the principles of ‘Plain English’; stating ‘we may not be in a position to continue with your contract of employment’). However, it did not outline the ‘charges’ which were to be laid against the complainant and this is a serious deficit. They are clearly listed in the letter of dismissal which issued the following day, but that is not sufficient. Given the limited jurisdiction of an Adjudicator under this legislation I will be recommending that the respondent seriously review its procedures for managing disciplinary meetings and this deficit renders the dismissal unfair. However, I take into account the substantial contribution of the complainant to the matters and make no recommendation of compensation. |
Dated: 02/04/19
Workplace Relations Commission Adjudication Officer: Pat Brady
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