ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020593
A Charitable Organisation.
Jennifer McCarthy Daniel Spring & Co.
Mairead Crosby IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 07/06/2019
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
In accordance with Section 41 of the Workplace Relations Act, 2015 or Section 8 of the Unfair Dismissals Acts, 1977 - 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.
Summary of Complainant’s Case:
CA 00027115-001 (Unfair Dismissal)
The complainant commenced employment with the respondent on the 2nd August 2018 with a 12-month fixed term contract. The complainant never received his actual contract of employment.
During the course of his employment he became aware, by third hand information, that there was a deliberate targeting of certain members of staff in relation to a deliberate non-payment of their pensions. The complainant became aware of the issue following our conversation he had with the finance director Mr SH. He raised his concerns with his employer Mr. NG on the 13th of September. He was informed that the matter would be discussed at the next board meeting and was assured that if that was the case it would not be tolerated by the employer. Following that, his employment was terminated on the 19th of September. He is of the belief that his employment was terminated because he raised his concerns in relation to a wrongdoing.
CA 000 27115-002 (Terms of Employment)
The complainant did receive his letter of offer however did not receive his written terms of employment. The complaint worked with the respondent from the 02.08.2018 to the 20.09.2018.
CA 00027115 – 003 (Fixed Terms Work)
The complainant did not receive his terms and conditions of employment.
CA 00027115 -004 (Payment of Wages)
The respondent did not pay to the complainant the sum of € 1167.00 which said sum is due to him.
Summary of Respondent’s Case:
The Respondent disputes the claim being made and refers to the detailed arguments below.
The Claimant alleges in his complaint form to the WRC that he was unfairly dismissed for exercising his right under the Protected Disclosure Act, however, the Respondent refutes this claim in its entirety.
The Respondent submits that the Workplace Relations Commission does not have jurisdiction to hear this claim under the Unfair Dismissals Act 1977-2015 (the Act) as the Claimant does not have the required service as set out in section 2(1)(a) of the Act Section 2 (1) of the Unfair Dismissals Act, 1977 which states the Act shall not apply to;
(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,
Section 11 of the Protected Disclosures Act 2014 amends the Unfair Dismissal Act 1977 in section 7 by inserting the following subsection after subsection (2A):
(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and
(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,
Should the Claimant be seeking to bring this claim within the remit of section 2 by utilising section 6(2)(b) and Section 6(2) (c ) of the Unfair Dismissals Acts 1977-2015 as amended by the 2014 Act, by availing of the exclusion from the necessity of having one year’s continuous service with an employer, if the employee has made a protected disclosure; the Claimant must first show that there was a protected disclosure made by him within the meaning of the 2014 Act and, that his dismissal resulted wholly or mainly from having made this protected disclosure.
The Respondent submits that no protected disclosure was made by the claimant in the course of his employment. The scant information provided by the Claimant to the WRC in his compliant and which the Claimant alleges were protected disclosures within his claim form are strenuously denied in full by the employer and do not come within the meaning of a Protected Disclosure as defined within the 2014 Act.
These alleged disclosures as referenced in the WRC complaint forms are as follows;
“During my employment it became apparent that there was deliberate targeting of certain members of staff which I would not agree to and deliberate non-payment of pensions which I certainly did not agree with. I raised these wrongdoings directly with employer. My employment was terminated on the 19th September and I believe my position was terminated as I raised these wrongdoings. I informed my reporting manager and made them aware that I would need to discuss this at the next board meeting.”
In order to fully address these allegations, the Respondent intends setting out each allegation briefly in order to establish that they do not satisfy the definition of a protected disclosure within the meaning of the Protected Disclosure Acts:
Response to allegation of targeting of certain employees: This was not raised by the complainant to any member of staff during the course of his employment with the respondent. The complainant reported directly to Mr. SH, Director of Finance and he did not raise this issue at any time during his employment with either Mr. SH or the Interim CEO. In addition, there are no previous, current or pending harassment or dignity at work claims that coincide with the complainant’s dates of employment.
The complainant called the Director of Finance and the Interim CEO after he left the employment of the organisation. During the course of his conversation with the Interim CEO, Mr. NG, on the 16th of October 2018, The complainant accused the organisation of moving location for the sole purpose of disturbing one member of staff. The Interim CEO advised that this was not the case.
Response to allegation of non – payment of pensions: The complainant did not raise this issue with any member of the management team or the Board of Directors during his employment. For the purposes of clarity, the Respondent has two retirement schemes in operation for employees, a PRSA and a defined contribution pension. They have staff in the organisation who are employed in the following capacity:
1. If and When Contracts
2. Fixed Term/Specified Purpose Contracts
3. Contracts of Indefinite Duration
Relief staff, or those on ‘if and when’ contracts are offered the facility to join the PRSA scheme once they have successfully passed the probationary period. Permanent employees who have successfully completed 12 months continuous service may join the pension scheme. The clause regarding to pension schemes is in place in all employee contracts of employment.
Ms AN undertook an internal investigation into these allegations on foot of receiving the WRC complaint, which found that there was no evidence to support any of the Claimant’s allegations. A copy of the investigation report is exhibited.
In addition, information regarding the pension was circulated to all staff on the 18th of July 2018 by the Director of Finance. The company PRSA and pension scheme are operated by ZZ Ireland via their brokers, KK Insurance. Every month, the employee and employer contributions in respect of all members of the scheme are transferred by EFT.
In his WRC complaint form, the complainant also states that he advised his Line Manager, Mr.SH, that he would need to discuss these matters at the next board meeting.
Mr. SH has no recollection of any such conversation. In addition, the complainant, in his position, would not have been attending any of the board meetings. These meetings are attended by the Interim CEO, Mr. NG. Other members of the senior management team attend when invited. The complainant was not a member of the senior management team.
To reiterate, the Respondent is not aware of any Protected Disclosure as defined under Section 5 of the Act, made by the Claimant throughout the duration of his employment, nor has the Claimant provided any evidence of having made such a disclosure, in advance of the scheduled hearing.
The Respondent submits that by virtue of section 5(3)(b) of the Act which defined a relevant wrongdoing as;
(3) The following matters are relevant wrongdoings for the purposes of this Act—
(a) that an offence has been, is being or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged,
(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,
(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or
(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.
It is the Respondent’s position that the allegations referred to are strongly denied and were not brought to the attention of the Respondent or any external body, that they are aware of.
Without prejudice to the argument that the allegations referred to were not brought to the attention of the Respondent, the Respondent argues that had any such issues been raised at the time, they should be considered a grievance and not a protected disclosure.
The difference between a grievance and a protected disclosure was addressed by SI 464/2015 Code of Practice on Protected Disclosures Act 2014 at section 30 and 31 as follows;
A grievance is a matter specific to the worker i.e. that the worker’s employment position around his/her duties, terms and conditions of employment, working procedures or working conditions.
A grievance should be processed under the organisation’s Grievance Procedure. A protected disclosure is where a worker has information about a relevant wrongdoing.
It is important that a worker understands the distinction between a protected disclosure and a grievance. The organisation’s Whistleblowing Policy should make this clear.
The Respondent has an established Whistleblowing Policy and Procedure. On joining the organisation, the Claimant was given access to QPulse (the organisations’ on line documentation system where he could gain access to all policies and procedure, including the aforementioned policy), which complies with the above requirements and to which the Claimant did not utilise throughout his employment.
The Respondent is not aware of any other Protected Disclosure as defined under Section 5 of the Act, made by the Claimant throughout the duration of his employment, nor has the Claimant provided any evidence of having made such a disclosure to date. Therefore, the Respondent contends that this claim should be rejected for the reasons outlined above.
The respondent provides day, residential, supported living and outreach services for individuals with autism with the goal of maximising independence and enhancing quality of life. All of our programmes are tailored to recognise the neurodiversity of people with autism. Staff receive regular autism-specific person-centred training and they are equipped with the knowledge and expertise to enable each individual they support to have positive and meaningful life experiences.
We have a headcount of approximately 235 staff, the majority of whom are employed in front line positions as Social Care Workers, Autism Practitioners and Support Workers.
BACKGROUND TO THE CLAIMANT
The Claimant commenced employment with the Respondent in the position of Financial Controller on 2nd August 2018 on a fixed term contract for one year. The Claimant’s employment was terminated on 19th September 2018 and his salary was €61,417 per annum.
TERMS AND CONDITIONS OF EMPLOYMENT:
In his complaint form to the WRC, the Claimant alleges that he did not receive his terms and conditions of employment.
Response: The complainant was introduced to the respondent by a recruitment agency. On Tuesday, 31st of July 2018, Ms NA, HR & Recruitment Officer, sent a letter of offer to the recruitment agency in relation to the Claimant’s terms and conditions of employment.
It is the Respondent’s position that the Claimant was provided with written confirmation of the key terms & Conditions of employment prior to commencing employment on 31 July 2018, in advance of his start date of 2 August 2018. Offer Letter is exhibited.
The complainant would have received a full contract of employment, not later than 2 months after he started. The complainant’s contract had been prepared and was in draft format. Had The complainant remained in the employment of the organisation he would have been issued with a full contract as were all other employees.
The Terms of (Employment Information) Acts states at Section 3 (1) – 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.
The Claimant received the key terms and conditions of employment in advance of commencement. Subsequently, his contract of employment was terminated on 19 September 2018, within the two-month timeframe as set out in the Act. It is therefore the Respondent’s position that it has complied with Section 3 of the Terms of Employment (Information) Act 1994, and accordingly the Claimant cannot establish a breach of the Terms of Employment (Information) Act 1994.
5.0 FIXED TERM AND PART TIME WORK
In his complaint form to the WRC, the Claimant states under the specific details of the complaint under the Protection of Employees (Fixed-Term Work) Act 2003: “I never received my Terms and Conditions of Employment”.
Response: This claim is not properly before the Adjudicator as the Respondent has not breached the Protection of Employees (Fixed-Term Work) Act 2003 Employment legislation.
The complaint regarding Terms and Conditions of Employment is addressed above under Section 4 herewith. Therefore, the Respondent would respectfully request that the Adjudicator take due consideration of the forgoing argument and uphold the Respondent’s position with respect to the above complaint and dismiss this claim in its entirety.
6.0 PAYMENT OF WAGES
In the complaint form to the WRC, the Claimant alleges that the respondent has paid him less than the amount due to him. Specifically, it states “I was employed on a fixed term contract and did not receive pay for the hours worked in that period”.
Response: The Respondent has records of the final calculation of The complainant’s salary and the annual leave he took during his employment with the organisation. Records are exhibited.
The Claimant accrued approximately 3.4 days annual leave during the course of his employment. From the 2nd of August to the 19th of September, he took 5.5 days annual leave in September and 3 days annual leave in August. The calculation of the complainant’s leave is as follows:
• During the month of September The complainant work 7.5 days excluding annual leave
• This equates to a gross payment of €1,771.64
• The complainant accrued 3.4 days during the course of his employment which equates to a gross payment of €803.15
• The complainant’s overtake of annual leave amounting to 4 days was deducted which amounts to a gross deduction of €945.00
• Gross payment due €1,629.79
A mistake was made on the original calculation which the complainant brought to the attention of our payroll administrator, Ms. CN, and this was immediately rectified. Payroll Correction Information is exhibited.
The Respondent refutes the claim under the Payment of Wages Act in its entirety as no unlawful deduction of wages has occurred in line with the renumeration stated in the Complainant’s offer letter. Furthermore, at no point has the Complainant received a salary below his contractual salary.
The Claimant is arguing that there was a deficiency in payment of his wages on the period in question.
The Payment of Wages Act, 1991, under section 5(6) states:
“Where (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.
Thus, the important element to establish is what were the wages “properly payable” to the employee on “that occasion”. The Respondent contends that the wages “properly payable” to the employee were the wages as advised to the employee in the offer letter of employment. No deduction as defined in Section 5 of the Act has been made. Any deduction made to the Complainant’s salary were made in accordance with Section 5 of the Act, namely deductions required by virtue of statute, and are thus lawful deductions.
Accordingly, no jurisdiction exists under the Payment of Wages Act 1991 for this claim to be heard.
Findings and Conclusions:
CA 00027115- 001 ( Unfair Dismissal, Act, 1977.)
The complainant was employed by the Respondent for a period of four weeks. He alleges that he was dismissed following the making of ‘protected disclosure’ and therefore can avail Section 7 (2) (b) which said section gives me jurisdiction to hear the within claim despite him not having 104 weeks service.
I must firstly be satisfied that complainant made a ‘protected disclosure’. Secondly, I must be satisfied that the dismissal resulted wholly or mainly as a result of that protected disclosure, before Section 7(2)(b) applies.
6. (1) A disclosure is made in the manner specified in this section if the worker makes it,
(a) to the worker’s employer, or
(b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly-
(i) to the conduct of a person other than the worker’s employer, or
(ii) to something for which a person other than the worker’s employer has legal responsibility,
The complainant states that he had a conversation with the respondent in relation to this issue and was given assurances that the issue would be dealt with at the next Board meeting. The respondent states that at no time during his employment did the complainant every have that conversation with them. It wasn’t until after he had been dismissed that the issue came up. Following that the respondent carried out an investigation and in doing do discovered that everything was in order. The documentation to support that finding was before me at the hearing. Based on the fact that the pension payments were in order I find the complainant’s evidence that he was told otherwise by an employee of the respondent not to be credible. For that reason, I prefer the respondent’s evidence.
Everett Financial Management Ltd v Murrell EAT/552/02, 18 December 2002. In this case the respondent was employed as an equities dealer by the appellant. He claimed that he had been constructively dismissed by reason of his having made a protected disclosure. He asserted that he had made a disclosure in 2000 when he and 18 of his colleagues became concerned about a particular practice that they were required to carry out and signed a petition seeking assurances from the appellant’s directors that they were not engaged in an activity that was unlawful or that could be construed as unlawful. The ET concluded by a majority that the signing of the petition was a protected disclosure within section 43B of the 1996 Act. The minority members’ view had been that the petition was not a protected disclosure because it did not specifically name or identify a practice which could be identified as making a disclosure for the purpose of the Act. On appeal the English EAT agreed with the minority view and held that the petition did not disclose any information. It concluded that simply raising and expressing concerns and seeking assurances that there had not been a breach of a legal obligation did not amount to a protected disclosure under the Act.
I conclude that the complainant did not make a ‘protected disclosure’ until after he had been dismissed. Furthermore, I find that there was no factual basis for the alleged wrongdoing. The complainant did not invoke the respondent’s whistleblowing policy. Even if I were to accept his evidence, all he actually did, was express a concern and sought assurances that it would be dealt with at the board meeting. That does not meet the threshold for a Protected Disclosure. Furthermore, I am satisfied that the complainant was dismissed due to the issues he was having with other staff members. Accordingly, I do not have jurisdiction to determine the matter.
The complaint fails.
CA 00027115- 002 (Terms of Employment)
“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”
Firstly, I am satisfied that the letter of offer sent by the Respondent’s HR Officer, to the recruitment agency on the 31st July, 2018 set out the complainant’s terms and conditions of employment. Secondly, I am satisfied that the complainant’s employment was terminated prior to the expiration of the two month statutory provided to the employer in Section 3 of Act. In those circumstances, I find that the claim is not well founded.
The complaint fails.
CA 00027115- 003 (Protection of Employees (Fixed Term Work) Act.)
I am satisfied that the letter of offer sent by the Respondent’s HR Officer, to the recruitment agency on the 31st July, 2018 set out the complainant’s terms and conditions of employment. Accordingly, I find that the claim is not well founded.
The complaint fails.
CA 00027115- 004 (Payment of Wages)
The complainant alleges that he is owed € 1,167.00 by the respondent. No further information is submitted by the complainant. The respondent has provided detailed information in relation to the payment made to the complaint and has set out what the complainant was paid and why.
I am satisfied, based on the documentary evidence provided by the respondent, that no unlawful deductions have been made. Accordingly, the complaint fails.
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 00027115- 001 The complaint fails
CA 00027115- 002 The complaint fails
CA 00027115- 003The complaint fails
CA 00027115- 004 The complaint fails.
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly