Complainant

Respondent

Parties

Klaudiusz  Tuchowski

Elis Textile Services Limited

Representatives

Judy McNamara IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00064391-001

28/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00064391-003

28/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00064391-004

28/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00064391-005

28/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00064391-006

28/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00064391-010

28/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015

CA-00064391-011

28/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00064391-012

28/06/2024

The Complainant commenced employment with the Respondent on 27 April 2015 in the role of General Operative and remains in their employment. On 28 June 2024, he referred several complaints to the WRC concerning alleged breaches of his employment rights, including illegal changes made to his contract of employment, failure to pay outstanding annual leave, and penalisation arising from complaints he had made in the workplace.

CA-00064391-005:

The Complainant stated that he was owed 8.5 days of annual leave for untaken holidays during the Respondent’s leave year from 1 January 2023 to 31 December 2023.

CA-00064391-006:

The Complainant stated that he was unfairly punished because he was issued with a warning in January 2024 in respect of a rule that he had not been made aware of in his written statement of his terms and conditions of employment.

CA-00064391-010:

The Complainant stated that he complained in an email to the Respondent on 29 January 2024 that the linen was excessively wet and therefore very heavy to carry. He asserted that he submitted a medical certificate dated 16 February 2024, which confirmed he was suffering from repetitive strain injury. He claimed in his evidence that this injury was caused by repeatedly lifting the heavy, wet laundry.

He further stated that, following this complaint, he was penalised by the Respondent through suspension and the imposition of an unfair disciplinary sanction.

CA-00064391-011:

The Complainant stated that he was penalised by the Respondent for making complaints, and that this penalisation took the form of disciplinary sanctions and unfair treatment.

CA-00064391-012:

The Complainant accepted that this was a duplicate complaint of CA-00064391-005.

CA-00064391-005:

The Respondent disputed that the Complainant did not receive payment for outstanding annual leave from 2023 and presented evidence that purported to demonstrate that all outstanding annual leave monies from 2023 were correctly discharged to the Complainant.

CA-00064391-006:

This Respondent disputed that they changed the Complainant’s terms and conditions of employment without his consent and asserted that this complaint was misconceived.

CA-00064391-010:

The Respondent denied in the first instance that the Complainant lodged a complaint regarding the requirement to carry wet linen that was very heavy. They also stated that the Complainant was working in a laundry and that the linen is always wet. It was also disputed in evidence that the wet linen was very heavy.

The Respondent also highlighted that there is a full time Health and Safely Officer on all of their sites and the Worker never made a complaint to anyone of these in respect of wet linen being heavy to carry.

While the Respondent accepted that the Complainant provided a medical certificate dated 16 February 2024, which confirmed he was suffering from repetitive strain injury, it was asserted that there was nothing in this medical certificate to suggest that the injury was caused by having to carry wet and heavy linen.

CA-00064391-011:

The Respondent stated that this complaint was misconceived.

CA-00064391-005:

Having reviewed the evidence presented by the Respondent at the hearing, the Complainant accepted that all outstanding leave owed to him in respect of the Respondent’s 2023 annual leave year was paid to him.

Accordingly, I find that this complaint is not well founded.

CA-00064391-006:

Under the Terms of Employment (Information) Act 1994–2014 in Ireland, a "term and condition" of employment refers to the essential elements that make up the employment relationship between an employer and an employee, which must be provided in writing. These include core details such as:

Core Terms (must be given within 5 days of starting work):

a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated,

(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

(h) either—

(i) the title, grade, nature or category of work for which the employee is employed, or

(ii) a brief specification or description of the work;

(i) the date of commencement of the employee’s contract of employment;

(j) any terms or conditions relating to hours of work (including overtime);

(k) where a probationary period applies, its duration and conditions.

Remaining Terms (must be given within 1 month):

These make up the broader “terms and conditions” and include:

·         a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

·         that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

·         the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

·         any terms or conditions relating to paid leave (other than paid sick leave),

·         any terms or conditions relating to—

-          incapacity for work due to sickness or injury and paid sick leave, and

-          pensions and pension schemes,

·         the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

·         a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made

·         the training entitlement, if any, provided by the employer,

·         in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 20085 on temporary agency work), when and as soon as known, and

·         if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of —

-          the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours,

-          the reference hours and days within which the employee may be required to work, and

-          the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and

-          where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.

Analysis

The Complainant stated that he was unfairly punished because he was issued with a warning in January 2024 in respect of a rule that he had not been made aware of in his written statement of his terms and conditions of employment.

The imposition of a sanction in respect of a breach of a rule or a practice that the Complainant alleged he was not aware of cannot be said to constitute a change in any of the terms and conditions of employment set out in the Act above.

I therefore find that this complaint is misconceived.

CA-00064391-010:

The Act states as follows at section 27

27.(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), 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 of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

In considering the complaint, I must address three key questions. First, I must be satisfied that a protected act (or acts) has occurred as defined in Section 27 of the Act above. Second, I must determine whether the Complainant suffered a detriment during the relevant period, as described in the same section. Finally, I must decide whether any such detriment was suffered as a result of the Complainant’s commission of a protected act, which he claims occurred on 29 January 2024.

Having reviewed the email correspondence dated 29 January 2024, in which the Complainant alleged that he had made a protected act, I note that while he did complain about the material being very wet—resulting, according to him, in numerous returns and slower machine operation—there was no indication that the wet laundry was too heavy to carry or that it posed a health and safety concern.

I also note that there was nothing in the medical certificate dated 16 February 2024, which confirmed that the Complainant was suffering from repetitive strain injury, to suggest that the injury was caused by having to carry wet and heavy linen.

As no evidence was presented to suggest that the Complainant made a protected act—specifically, making a complaint to the Respondent about the laundry being excessively heavy due to being wet as he alleged—I find that the first element of the test, as set out above, has not been satisfied. Accordingly, the complaint is not well founded.

CA-00064391-011:

The Complainant has claimed he was penalised in contravention of the provisions of the Industrial Relations (Amendment) Act, 2015. Given that this Act only deals with Sectoral Employment Orders however and none of the complaints submitted has anything to do with a Sectoral Employment Order, I find that this complaint is misconceived.

CA-00064391-001:

I find that this complaint is well founded for the reasons set out above and make an award of €962, which is subject to taxation and the normal statutory deductions.

CA-00064391-003:

I find that this complaint is well founded for the reasons set out above and make an award of €15.60, which is subject to taxation and the normal statutory deductions.

CA-00064391-004:

I find that this complaint is well founded for the reasons set out above and make an award of €45.50 which is subject to taxation and the normal statutory deductions.

CA-00064391-005:

I find that this complaint is not well founded for the reasons set out above

CA-00064391-006:

I find that this complaint is misconceived for the reasons set out above.

CA-00064391-010:

I find that the complaint is not well founded for the reasons set out above.

CA-00064391-011:

I find that this complaint is misconceived for the reasons set out above.

CA-00064391-012:

This is a duplicate complaint in respect of which a finding has been made in CA-00064391-005 above.