FULL RECOMMENDATION
PARTIES: QED CONTRACTS LIMITED DIVISION:
1.An appeal against a Rights Commissioner's Decision no: r-145893/150481-taw-14/SR. DETERMINATION: There is a protracted history to the within appeals. Ms Rachel Hickey (‘the Complainant’) appealed from two decisions of a Rights Commissioner (R-145893-TAW-14/SR & R-150481-TAW-14/SR, both dated 21 July 2015) under the Protection of Employees (Temporary Agency Work) Act 2012 (‘the Act’) by Notice of Appeal received by the Court on 10 August 2015. It is not in dispute that, at all material times, the Complainant was an agency worker within the meaning of the Act. Her employer was QED Contracts Limited (‘QED’). She was assigned by QED to DHL Express (Ireland) Limited (‘DHL’) throughout the period comprehended by the within claims. The Complainant’s wages were paid to her by QED. A previous Division of the Court proceeded to hear and determine the Complainant’s appeal under the Act on 7 October 2015. The Court’s Determination, bearing reference number AWD1516, issued on 27 October 2015. The Complainant sought an order of certiorari before the High Court in respect of that Determination. An Order of the High Court issued on 7 June 2016 (perfected on 21 June 2016) directing that the Complainant’s appeal be remitted to a differently constituted division of this Court. A second Division of the Court was, therefore, assigned to hear the appeals afresh. That Division sat to commence its hearing on 23 February 2018. However, an application was made on that date on behalf of DHL to stay the proceedings pending the conclusion of parallel personal injury proceedings initiated by the Complainant before the High Court. The Court acceded to that application. The Court subsequently heard the appeal on 15 September 2021 (in a virtual courtroom) and on 10 February 2022 (in a physical setting). The Court heard sworn evidence from the Complainant and from Ms Lorna Quinlan (on behalf of DHL) only. THE FACTUAL MATRIX: The Complainant’s assignment as an Operations Clerk with DHL commenced in September 2010. She initially worked in DHL’s facility in Sandwith Street, Dublin 2, processing outbound consignments for delivery by courier. DHL moved this operation to Pearse Street, Dublin 2, in February 2014. Some organisational and operational changes resulted from that re-location. The Complainant also received a corporate email account for the first time when she moved to Pearse Street. She worked twenty hours per week and was initially remunerated at €10.00 per hour. This rate was subsequently reduced by QED, with effect from October 2012, to €9.50 per hour following commencement of the Act apparently in order to align the Complainant’s rate of pay with that of direct employees of DHL in comparable roles. The rate for DHL employees in operational roles was increased with effect from 1 January 2014 to €9.88 per hour. It appears that QED was not informed of this change in advance with the result that the Complainant continued to be paid at €9.50 per hour until 19 January 2014. The new higher rate was applied from 20 January 2014. QED and DHL engaged in relation to the shortfall in the payments made to the Complainant during the first three weeks of 2014. It was agreed that the Complainant was to be paid for an additional two hours at €9.88 in Week 6 (3 February to 9 February 2014) to make up for the shortfall. The Complainant, therefore, received an additional payment of €19.76 to compensate her for a shortfall calculated to amount to €12.16. That calculation did not take account of the payment the Complainant received for annual leave she availed herself of during January and February 2014 in respect of which she had been remunerated at €9.50 per hour. No additional payment was offered to the Complainant for the 52 hours of annual leave she availed herself of in this period because she had accrued it during 2013 and payment in respect of it had been recovered by QED from DHL at the lower rate. This issue was addressed as follows by the original Division assigned to this appeal: “The Court finds that the Complainant is due the sum of €11.88 in respect of breaches of the Act which occurred on the 24th January and 7th February 2014 pay dates. The Court hereby awards the Complainant the total sum of €100.00, which sum includes the outstanding payment due to the Complainant and an element of compensation in accordance with Paragraph 1(3)(c) of the Schedule 2 of the Act.” QED paid the award of €100.00 in compensation to the Complainant. The Complainant retained that payment. It follows that the Complainant has accepted the award and that aspect of the complaint under section 6 is not before this Division of the Court. The Complainant has alleged that she was the subject of bullying and harassment in her place of work. The Complainant initiated personal injuries actions against two individuals personally and DHL in the High Court in connection with those allegations. She was absent on certified sick leave for a period of almost three months prior to 19 May 2014 on which date she attempted to attend for work in Pearse Street although the medical certificate she presented on that date from her General Practitioner stated that she was unfit for work up to and including 19 May 2014. The medical certificate indicated that the Complainant was suffering from work-related stress and also stated that the Complainant “wishes to return to work next week and I think that is appropriate, if the issues involved are being dealt with”. At 8.59 am on 19 May 2014, the Complainant sent an email to Mr Joe Kearns of QED which stated as follows: “Hi Joe, This was the first indication given by the Complainant to either QED or DHL that the Complainant intended to attend for work in DHL that day. One of the attached medical certificates related to the period 5 May to 12 May 2014. The second is the one referred to above. The Complainant sent a second email to Mr Kearns, also at 8.59 am on 19 May 2014. Ms Lorna Quinlan in DHL’s Human Resources office was carbon copied on this email. The email stated: “Hi Joe and Lorna, Mr Kearns replied to the Complainant by email at 9.26 am, as follows: “Hi Rachel, The Complainant sent a third email to Mr Kearns at 16.00 on 19 May 2014 and advised as follows: “Hi Joe, I have arranged a meeting with Marillis for this coming Friday at 2pm. This was the earliest available it would seem. I am fit to return to work and did so this morning before seeing your email at 11.30 am. I have requested information clarifying my position in DHL and have not received such despite you having such information and withholding it from me. I trust I will receive this information regarding the conditions of my employment and working at DHL. I have requested a more ‘clearer’ (sic) fitness to return to work certificate on your behalf from my G.P. I will personally deliver this with all G.P. notes to your office tomorrow. Please advise what working hours etc. I am to work from tomorrow onwards. Mr Kearns replied by email at 18.53 that day. His email states: “Hi Rachel, Notwithstanding Mr Kearns’s abundantly clear instructions to her, the Complainant, nevertheless, also attempted to resume work again at DHL on 20 May 2014, Mr Kearns re-iterated those instructions in a text message to the Complainant at 10.36 am on 20 May 2014 in which he wrote: “Hi Rachel The Complainant emailed Mr Kearns at 10.57 am on 20 May 2014 as follows: “Hi Joe, At 8.20 am on that morning, the Complainant had sent another email to which was appended a typed document approximately 1.5 pages long in which she advised Mr Kearns that she had delivered to his office a corrected medical certificate and confirmation that she was fit to return to work on 19 May 2014. She also stated that she did not require prior approval from QED to attend her work (in DHL). She also took issue in relation to a number of the matters raised by Mr Kearns in earlier correspondence. Early in the document she advised Mr Kearns as follows: “Until I have been advised of the hours DHL wish me to work I will work every day Monday to Friday and I will advise QED of these hours so that you can arrange payment.” She concluded the document by stating, “I am entitled to continue in my employment with DHL and intend to do so.” The amended medical certificate referred to by the Complainant is dated 19 May 2014 and states: “Dear Sir or Madam The Complainant was requested to leave DHL premises on 20 May 2014 by Mr Stephen Rowe a member of DHL management. She refused to do so. Mr Kearns was then contacted and agreed to attend at DHL to deal with the issue. He composed and presented the Complainant with a handwritten letter on QED headed paper, at 11.30 am, which stated: “Attendees: Joe Kearns The Complainant left the premises shortly after noon on 20 May 2014. She has not resumed working for QED or DHL since. She told the Court that commenced on a Community Employment Scheme in either 2016 or 2017 and has since progressed to full-time employment in that sector. THE CLAIMS: The appeal comprises two claims against QED: the Complainant submits that QED is in breach of section 6 of the Act in so far as she did not receive the correct rate of remuneration during the relevant period and she did not receive a ‘piece-work bonus’ that was paid to direct employees of DHL; she further submits that she was penalised by QED in breach of section 23 of the Act when she was suspended by it on 20 May 2014. The Complainant makes three complaints against DHL: she submits that, in breach of its obligations under section 11 of the Act, DHL failed to notify her of job vacancies for which she was eligible to apply as they arose; she also submits that, contrary to section 14, she was not afforded access to an online training portal made available by DHL to its direct employees; finally, she submits that she also penalised by DHL, contrary to section 24, on 20 May 2014, when she was asked by a member of its management team to leave the premises and/or was suspended by that manager. The Complainant referred all of the aforementioned complaints to the Rights Commissioner Service on 9 June 2014. It follows that the period comprehended by the complaints is 10 December 2013 to 9 June 2014. THE EVIDENCE: SECTION 6: The Complainant stated in evidence that she was initially paid €10.00 per hour when she commenced working with DHL but that this was subsequently reduced to €9.50 per hour in October 2012. She accepts that her rate of pay increased to €9.88 with effect from 1 January 2014 although this was retrospectively applied to her in February 2014. Her representative directed the Court to email correspondence on various dates in October 2016 between the Complainant and an official of the SIPTU trade union in which the Complainant (on 3 October 2016) queried the rate of pay increases that had been applied in DHL between December 2010 and December 2013. The official advised her in reply (on 26 October 2016) that according to his notes a 2.25% pay increase had been applied in 2012 and a 2% increase in 2013. The Complainant said that she received no increase in pay in 2013 and the increase she received in 2014 was a 4% increase in her hourly rate. According to the witness, QED’s failure to apply the 2% increase to her pay in 2013 has resulted in a loss of €195.70. She further states that she is at a loss of €6.08 due to QED’s decision to pay her annual leave hours in January and February 2014 at the lower rate. She accepts that she was paid and retained a payment of €100.00 from QED but that still leaves her at a loss of €101.78. The second element of this complaint relates to a piece-rate bonus or productivity bonus that the Complainant submits was paid quarterly to DHL employees and which she says she should also have been paid. Under cross-examination by Counsel for DHL, the Complainant could not identify any piece work element to her job. SECTION 23: The Complainant gave evidence of having sent the two emails referred to earlier at 8.59 am on 19 May 2014. She said that she had drafted them over the previous weekend and had intended to send them then but that her home Wifi was not working. While on her way to work in DHL on the morning of 19 May 2014 she picked up a hotspot using her electronic tablet and sent them then. She told the Court that she had not read the detail on the medical certificates she submitted by email on 19 May 2014 and believed that the most recent one declared her fit to work on that date. She said that she is the sole breadwinner for her four children, she had been out of work on sick leave for almost three months and that she needed to return to work and to start earning again as she been in receipt only of her primary social welfare payment and the family income supplement while on sick leave. The latter payment ceased after six weeks. She submits that the decision taken by Mr Kearns of QED to suspend her with effect from 20 May 2014 amounts to penalisation within the meaning of section 23 of the Act as it was done in retaliation for her reference in one of the emails sent by her on the previous day to her intention to make a claim under the Act in respect of certain breaches of the Act that had occurred. In cross-examination, Counsel for QED put it to the Complainant that she had advised QED at 8.59 am that she was returning to work in DHL that morning and supplied only a conditional fitness to work certificate; that she had not informed DHL in advance that she was returning to work and had not informed them of the conditional nature of her fitness to work certificate and had, in fact, attended to work a shift that day under the false impression that she was fit to work. Counsel asked was it reasonable for her to attend for work again the following day in the light of the instructions given to her by Mr Kearns the previous day and then to insist on ‘sitting in’ and refusing to leave having been requested to do so. The Complainant, in reply, said that she had ‘a right to be given her roster’. SECTION 11: The Complainant submits that she was not informed of any job vacancies that arose in DHL during her assignment there as an agency worker. She did not have a corporate email address prior to moving from Sandwith Street to Pearse Street. She says she never saw a job vacancy posted on a notice board in either location. Under cross-examination, the Complainant was unable to identify any specific position that she was denied access to. Mr Lorna Quinlan (HR Business Partner, DHL) in her evidence described how internal job vacancies have been communicated within DHL since 2013. She said that they are circulated by email to ‘all users’. Also, supervisors in local depots are requested by Human Resources to place a copy of job advertisements on notice boards so as to ensure those workers who didn’t have a corporate email address were notified and had an opportunity to apply for the jobs in question. She told the Court that she was aware of a number of agency workers who had become direct employees of DHL. SECTION 14: This complaint relates to access to an internal learning portal offered by DHL to all employees with a corporate email address. The Complainant submits that she was unable to access the various training opportunities available via the portal as she did not have a corporate email address until 6 February 2014. She said that DHL advertises access to the portal as ‘a benefit’ to employees and that DHL’s failure to give her access to it is, therefore, a breach of section 14 of the Act. Under cross-examination, the Complainant accepted that the nature of the work she performed in Sandwith Street did not necessitate her having a corporate email address. Ms Quinlan told the Court that not all DHL direct employees have a corporate email address and that the provision of this facility is job dependent. She also told the Court that the online training programmes available via the company’s learning portal are also role specific. Finally, she said that all mandatory training, including induction training, is provided to all employees – both direct hires and agency staff – in a physical setting, regardless of whether they have access to the online portal or not. SECTION 24: In the Complainant’s written submission, she stated that Mr Stephen Rowe of DHL had asked her to leave the premises on 20 May 2014. In her direct evidence to the Court, she stated that Mr Rowe had suspended her on that date but gave her no reasons for his decision in this regard. She also said that she had been advised by a DHL supervisor (Mr Alan Murphy) on the previous day to come back into work again on 20 May 2014. The Complainant submits that Mr Rowe’s actions were also in retaliation for her reference in one of her emails of 19 May 2014 (carbon copied to Ms Quinlan) to her intention to take a claim under the 2012 Act. Under cross-examination, the Complainant accepted that Mr Rowe had not used the word ‘suspension’ but the fact of her suspension, she said, was communicated by his tone and his threat to call An Garda Sίochána. Ms Quinlan, in her evidence, told the Court that her understanding was that the Complainant was suspended by Mr Kearns of QED and not by Mr Rowe. Legal Submissions by Mr Dave Murphy on behalf of the Complainant Mr Dave Murphy directed the Court to a number of authorities which he submitted should be considered by the Court in determining the within appeal. The authorities cited by Mr Murphy included Sandra Cleary v B&Q Ireland [2016] IEHC 119; A Retail Company v A Worker PWD 2024 (Labour Court) and Paul O’Neill v Toni & Guy Blackrock Limited [2010] 21 ELR 1. THE LAW: Section 6 of the Act provides: “6. Basic working and employment conditions of agency workers (2) Subsection (1) shall not, in so far only as it relates to pay, apply to an agency worker employed by an employment agency under a permanent contract of employment, provided that— (a) before the agency worker enters into that contract of employment, the employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment. (2) Subsection (1) shall not, in so far only as it relates to pay, apply to an agency worker employed by an employment agency under a permanent contract of employment, provided that— (a) before the agency worker enters into that contract of employment, the employment agency notifies the agency worker in writing that, if the agency worker enters into that contract of employment, subsection (1), in so far as it relates to pay, shall not apply to the agency worker, and (b) in respect of the period between assignments and subject to— (i) Part 3 of the Act of 2000, and (ii) any other enactment or any collective agreement that makes provision in relation to terms and conditions of employment relating to pay, the agency worker is paid by the employment agency an amount equal to not less than half of the pay to which he or she was entitled in respect of his or her most recent assignment. (3) Where the assignment of an agency worker commenced before 5 December 2011 and ended or ends on or after that date, that assignment shall, for the purpose of determining the agency worker's basic working and employment conditions in accordance with subsection (1), be deemed to have commenced on that date. (4) This section shall not operate to affect any arrangement provided for under an enactment, a collective agreement or otherwise whereby an agency worker is entitled to basic working and employment conditions that are better than the basic working and employment conditions to which he or she would be entitled under this section. (5) In this section “permanent contract of employment” means a contract of employment of indefinite duration.” Section 11 of the Act provides: “11. Access to employment by hirer Section 14 of the Act provides: “14. Obligations of hirers to agency workers (1) A hirer shall, as respects access to collective facilities and amenities at a place of work, treat an agency worker no less favourably than an employee of the hirer unless there exist objective grounds that justify less favourable treatment of the agency worker. (2) In this section “collective facilities and amenities” includes— (a) canteen or other similar facilities, (b) child care facilities, and (c) transport services.” Section 23 of the Act provides: “23. Prohibition on penalisation by employer (1) An employer shall not penalise or threaten penalisation of an employee for— (a) invoking any right conferred on him or her by this Act, (b) having in good faith opposed by lawful means an act that is unlawful under this Act, (c) making a complaint to a member of the Garda Síocháina or the Minister that a provision of this Act has been contravened, (d) giving evidence in any proceedings under this Act, or (e) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs. (1A) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014. (2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of that penalisation both under Schedule 2 and under those Acts. (3) In this section “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes— (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to [2015]), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation.” Section 24 of the Act provides: “24. Prohibition on penalisation by hirer (1) A hirer shall not penalise or threaten penalisation of an agency worker for— (a) invoking any right conferred on him or her by this Act, (b) having in good faith opposed by lawful means an act that is unlawful under this Act, (c) making a complaint to a member of the Garda Síochána or the Minister that a provision of this Act has been contravened, (d) giving evidence in any proceedings under this Act, or (e) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs. (1A) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014. (2) If a penalisation of an agency worker, in contravention of subsection (1), constitutes a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the agency worker in respect of that penalisation both under Schedule 2 and under those Acts. (3) In this section “penalisation” means any act or omission by a hirer or a person acting on behalf of a hirer that affects an agency worker to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes— (a) suspension or dismissal (within the meaning of the Unfair Dismissals Acts 1977 to [2015]), or the threat of suspension or such dismissal, (b) loss of opportunity to apply for a position of employment with the hirer, (c) transfer of duties, change of location of place of work or change in working hours, (d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation.” APPLICATION OF THE LAW TO THE FACTS, DISCUSSION AND DECISION: The first element of the Complainant’s complaint under section 6, taken at its height and having regard to the cognisable period comprehended by the within appeal, is that she was underpaid by 2% for the period 10 December 2013 to 31 December 2013 i.e. a period of approximately three weeks during which she worked or was deemed to have worked approximately 60 hours. The Complainant relies on an email from a trade union official dated 26 October 2016 in which he advised the Complainant – based on his records - that DHL direct employees had received a pay increase of 2% in 2013. The witness’s case is that she should, therefore, have been remunerated at the rate of €9.67 in 2013. If the Complainant is correct, the difference between the hourly rate she was paid and the hourly rate she received is €0.18. This would put her loss in the cognisable period at approximately €10.83. The obvious difficulty for the Court here is that the Complainant’s case is grounded entirely on hearsay. The trade union official who authored the email that the Complainant seeks to rely on was not called as a witness. Ms Quinlan who was present and who gave sworn evidence to the effect that the rate paid to DHL staff employed in operational roles was €9.50 per hour up until 1 January 2014. Ms Quinlan was a credible and reliable witness. The Court has no option but to prefer her evidence to the hearsay upon which the Complainant seeks to ground her claim. The Court finds that this aspect of the Complainant’s case in relation to section 6 is not well-founded. It is clear from the answer given by the Complainant when asked under cross-examination by Counsel for QED what part of her job entailed the performance of piece work that would have entitled her to payment of a productivity bonus, that the Complainant did not perform any piece work and was not, therefore, eligible for any such payment. This aspect of her claim under section 6 is not well-founded. The Complainant was not able to identify for the Court one single vacancy that DHL failed to notify her of. Ms Quinlan’s clear and consistent evidence was that the practice in DHL, during the relevant period, was to request supervisors in local offices to place notices on notice boards in common areas to ensure that directly employed and agency staff who did not have corporate email addresses were duly notified of the vacancies in question. The Court finds that the Complainant’s case in relation to section 11 is not well-founded. The Complainant’s complainant under section 14 is that she was not given access to DHL’s online training portal. The Court is of the view that “access to training” is not comprehended by section 14 having regard to Art.6(5) of the Directive transposed by the Act. The Directive provides that such access is a matter “to be progressed by way of social partnership”. The Court, therefore, finds this complaint not to be well-founded. The Complainant alleges she was penalised by both QED (contrary to section 23) and by DHL (contrary to section 24). In the case of both complaints, the alleged act of penalisation she has identified is her suspension on 20 May 2014 which she submits was in retaliation for the reference she made in an email sent at 8.59 am the previous morning to Mr Kearns of QED and carbon copied to Ms Quinlan of DHL wherein she advised them of her intention to refer a complaint to the Rights Commissioner Service under the 2012 Act. Mr Dave Murphy, in his legal submission, directed the Court, inter alia, to its determination in Paul O’Neill v Toni & Guy Blackrock Limited [2010] 21 ELR 1. That case related to a complaint of penalisation brought under the Safety, Health and Welfare Act 2005. The Court stated the following with regard to the burden of proof in cases alleging penalisation: “In the instant case what is at issue is the motive or reason for the claimant's dismissal. That is to be found in the thought process of the decision-makers at the time the decision to dismiss the complainant was taken. That is something which is peculiarly within the knowledge of the respondent. It would be palpably unfair to expect the claimant to adduce direct evidence to show that the respondent was influenced by his earlier complaints in deciding to dismiss him. Conversely, it is perfectly reasonable to require the respondent to establish that the reasons for the dismissal were unrelated to his complaints under the Act. Having regard to these considerations, it seems to the Court that a form of shifting burden of proof, similar to that in employment equality law should be applied in the instant case. Thus the claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the claimant's dismissal.” It is not disputed that the Complainant had notified both DHL and QED of her intention to pursue a complaint under the 2012 Act. It is also not disputed that her employment was suspended the following day. As a matter of fact, the letter written by Mr Kearns on 20 May 2014 makes it clear that it was he – on behalf of QED, the Complainant’s employer – who suspended the Complainant. There is no evidence before the Court – only mere assertion by the Complainant – that she was suspended by Mr Rowe on that date. It follows – applying this Court’s analysis in Toni & Guy – that the Complainant must show that, having regard to the circumstances of her case, that it is apt to infer that her stated intention to make a complaint under the 2012 Act was an operative consideration leading to her suspension by Mr Kearns on 20 May 2012. Having regard to the extensive email exchanges that took place over the course of 19 and 20 May 2014 between Mr Kearns and the Complainant, it is abundantly clear that Mr Kearns had given clear instructions to the Complainant that she was not to present for work in DHL until such time as he had met with her face to face and was satisfied that she was fully and unconditionally certified fit to return to work. Notwithstanding those clear instructions, the Complainant insisted on attending at DHL on 19 May and 20 May 2014 and refused to leave the premises. The Court is satisfied that the Complainant’s conduct in contravention of her employer’s clear instructions was the reason for her suspension and not her stated intention to pursue a complaint or complaints under the 2012 Act. For the reasons aforesaid, the Court finds that the complaints under section 23 and 24 are not well-founded. The Court so determines.
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