ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044508

Parties:

	Complainant	Respondent
Parties	Daniel O'Connell	Donard National School

Representatives

Des Courtney SIPTU

Kevin Roche BL instructed by Mason Hayes and Curran

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00055155-001	17/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00055155-002	17/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00055155-003	17/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055155-005	17/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055155-006	17/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00055155-008	17/02/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00055155-009	17/02/2023

Date of Adjudication Hearing: 03/10/2023

Workplace Relations Commission Adjudication Officer: David James Murphy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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.

I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

Background:

The Complainant was employed as a caretaker in the Respondent school. The Complainant submits he was employed from February 2022 whereas the Respondent submits he was employed from April 2022.

The Respondent dismissed the Complainant in October 2022. Some 6 or 8 months after he started working.

The Complainant believes that he was dismissed as a result of his trade union membership whereas the Respondent has submitted that he was dismissed as a result of interpersonal and performance issues.

Summary of Complainant’s Case:

The Complainant’s Union submitted detailed written submissions and he gave evidence under affirmation.

The Complainant argues that he was dismissed due to Union membership, that he was not given any statement of terms of employment, not allowed take annual leave and not paid his full leave on cessation.

Summary of Respondent’s Case:

The Respondent’s counsel submitted detailed written submissions. Mr Peter Kelly Principal and Ms Niamh O’Rourke Deputy Principal gave evidence under affirmation.

The Respondent alleges the Complainant had a difficult relationship with key staff and that his behaviour led to his dismissal, not his membership of SIPTU.

Findings and Conclusions:

CA-00055155-001 -Unfair Dismissals Act

The Complainant does not have the requisite service to be covered by the Unfair Dismissals Act generally.

This complaint is brought under the following section of the Unfair Dismissals Act:

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

The burden of proof is on the Complainant to establish that the dismissal resulted wholly or mainly from his Union membership.

The Complainant in evidence suggested that he had no issues whatsoever with any of the other staff. He outlined that an issue arose in September 2022 when he was expected to return to work following being absent from July due to a broken leg. The Complainant had booked a holiday in October/November. His Principal, Mr Kelly discovered this and became annoyed and suggested they would need to get someone else for the role. The Complainant says he responded that he would have to join a Union.

I would note that in the hearing, it took the Complainant’s Union rep asking about this interaction a number of times before the Complainant brought up the issue of Union membership in his evidence.

The Complainant provided further evidence that the relationship deteriorated sharply from this point on. He was given an extensive list of tasks including emptying litter bins, weeding the garden, cutting hedges and checking for leaks. He had initially joined the Respondent on the basis that he could work mostly outdoors during school hours due to potential risks of picking up covid. His wife is unwell and he could not risk bringing covid back to the house.

The Complainant was never told that an allegation had been made to the board by Mr Kelly. His evidence is that he was never verbally abusive to Mr Kelly or Ms O’Rourke.

Mr Kelly provided evidence of the interaction in September. He had just started as Principal and met with the Complainant who told him he would go on leave not long after the school term resumed. Mr Kelly says that he indicated they would need a temporary replacement to cover him. He does not remember Union membership being discussed.

He had been told that the Complainant’s standard of work was poor and instituted a to do list. His evidence was that staff had poor relations with the Complainant and avoided him. Union membership is normal in the school and would not be controversial. All teachers are members of INTO and the secretaries are members of FORSA. He does not believe that the Complainant’s union membership was not something that the board was notified of or aware of when they moved to dismiss him.

Mr Kelly brought the issues they were having with the Complainant to the board and they agreed to let him go.

Ms O’Rourke gave evidence that she had found the Complainant rude and that he had refused to carry out some duties such as emptying bins. She found his behaviour undermining towards her on a number of occasions. On the 12th of September there was an incident where she found him very aggressive.

On review of the available evidence I do not believe that the Complainant has established, on the balance of probability, that his dismissal resulted wholly or mainly from his union membership, rather than poor relations with certain colleagues and performance issues.

I note that the Union has suggested that these issues were merely a front for the Complainant’s targeted dismissal due to Union membership however they have failed to substantiate that assertion.

CA-00055155-002 and CA-00055155-003 – Terms of Employment Information Act

The Complainant has submitted two complaints under this act. The first for not receiving a full section 3 statement of terms, which was required within 2 months after him being hired. The second is for not having received a statement of core terms which was required within 5 days of him being hired.

The Respondent accepts that the Complainant was not given the relevant statements during the course of his employment. However they argue that these complaints fall outside the cognisable period as the breaches arose when the statements became due and the cognisable periods run from those dates. That is 5 days and 2 months after the Complainant’s hiring in April 2022.

I do not accept the Respondent’s defence that these complaints are out of time.

I accept the position outlined in the WRC decision of Denise Ryan Smart School Accounting Ltd t/a Smart School Accounting (ADJ-00030153) which held that the contravention of section 3 of the Terms of Employment (Information ) Act 1994 remains a subsisting and continuing event from one month after the commencement of the employment and that lasts for as long as the employment relationship lasts.

I find both complaints to be well founded.

CA-00055155-005, CA-00055155-006 Payment of Wages Act and CA-00055155-009 Organisation of Working Time Act.

The above three complaints are identical. They concern a dispute as to whether the Complainant’s employment started in February or April 2022 and the corresponding impact of that on his accrued holiday pay at termination. The Union maintain that the Complainant’s holiday pay on cessation was €58 short.

The Complainant provided evidence that he attended work on a trial basis from February.

The Respondent provided evidence that the decision to hire him was made in February but he did not take up employment until April.

It appears that the Complainant assisted the existing caretaker with a few tasks, as a sort of training in, ahead of his official start date. It does not appear that the Complainant worked a regular shift during this period. As such I do not see how, on the Complainant’s own evidence, there could be a claim outstanding holidays based on two extra months of regular employment.

There may be some small amount due based on the annual leave entitlement which accrued for the actual hours the Complainant worked during February and March. I do not know what these hours were or the extent of that entitlement. Any outstanding amount would be minor and I am unable to calculate it based on the evidence provided by the Complainant.

I am satisfied that his annual leave payment on cessation was not €58 short.

CA-00055155-008 – Organisation of Working Time Act

The Complainant has alleged in his complaint form that he received no annual leave during the term of his employment.

The Respondent points out that the Complainant was due to take annual leave in October or November 2022 and this was supported by the Complainant’s evidence. While he did not take annual leave due to his termination and relatively short employment period there is no suggestion that he could not take annual leave. Ultimately, he was paid leave on cessation of his employment as required of the act. He had not at the time of dismissal served through a full leave year.

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 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-00055155-001