Complainant

Respondent

Parties

Aleksejus  Zakurinovas

Abec Technologies Europe Limited Abec (Kells)

Representatives

Fiona Sharkey McInnes Dunnes Murphy LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00065329-001

11/08/2024

The Complainant is a Polisher employed since 25th March 2019.

The Complainant is employed with the Respondent with contracted hours from 12 to 22.30 pm four days per week. There is a term in his contract requiring flexibility in his hours and duties. His duties have been changed several times, and he has not received details in writing. In 2021 he was moved to the F.A.T. area where he is responsible for washing vessels outside.

He was moved to night duties. He is responsible for washing the vehicles outside with dangerous chemicals without any roof or side cover, or proper light. There is no special training or masks for the tasks. There are no hot showers if his uniform gets wet. There is a proper washing area on another company site in Cork. He raised this with management however, no proper washing area has been erected. Since then, the Complainant has been bullied for raising the issue. One evening, he refused to wash a vessel due to the weather. His Supervisor then complained about him, and he was involved in unfair disciplinary proceedings. He received a verbal warning. There was no proper translator in the appeal. He mentioned that his employer cannot penalise him for raising a health and safety complaint. The Complainant feels that his rights have been violated, and he wants the WRC to review this.

The Complainant gave evidence that the change to his terms and conditions occurred at the end of 2023. The company should have provided written notification of this change by 23rd January 2024.

The Respondent raises a preliminary application in relation to this complaint and the linked complaint. The Complainant’s complaint dates back to 2021 in this case, and end of 2023 in the linked complaint.

The complaints were received by the Workplace Relations Commission on 11th August 2024 and 25th August 2024 which is outside the required six-month statutory period. Accordingly, the complaints are statute-barred.

The Respondent relies on S41 (8) of the Workplace Relations Commission Act 2015:

“An Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration) as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within the period was due to reasonable cause”.

The Respondent is not aware of any circumstances which might have amounted to reasonable cause preventing the Complainant from lodging his complaint within the six-month period. The Respondent relies on the Labour Court decision in Hewlett-Packard Ireland Limited v Jakub Zajaczkowski [2019] 4 JIIEC 2101 and the test set out in DWT0338 Cementation Skanska v Carroll.

“It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The Respondent submits the complaint is statute-barred and the Workplace Relations Commission has no jurisdiction to adjudicate the complaints.

Without prejudice to the foregoing, the Complainant is a Polisher and his shift is 3.15pm to 1.45am. From time to time, his shift alters depending on project deadlines. At the end of 2023, all employees were informed following the end of a big project that overtime would end and staff would revert to their core hours of 3.15pm to 1.45am. His contract of employment states “The company may, as the business requires it, introduce shift work. It is a term of this contract that you agree that you are available to carry out shift work if required” which constitutes notification of this practice.

In an email from the Complainant to the Director of Operations on 23rd January 2024, the Complainant stated he had not received any notice about changing time and “I decided to keep an agreed shift which I have for the last few years”. Mr. Fenton responded on 23rd January 2024 “As discussed, the second shift has always been starting at 3.15pm. To facilitate employees doing overtime we gave employees the option of coming in at 2pm to do overtime. It was explained at the time the shift start was always 3.15pm”. Accordingly, the Complainant was notified of a change to his terms and conditions and his complaint must fail.

Without prejudice to the foregoing, the substance of the Complainant’s complaint is that he is dissatisfied that his shift pattern has changed over time. The Complainant referred to a change to his roster. This is a change to a work practice and not a term of his employment contract, which can be changed without notification.

The Respondent denies any instances of bullying and health and safety breaches. The Complainant’s misconduct has raised health and safety concerns and risks for the Respondent. The Complainant left the site on 9th February at 11am without approval. The Complainant said he comes in at 2pm and works till 12.30am seeking to dictate his own hours. This incident was investigated, and no disciplinary warning was issued.

The Respondent submits a change in rostering is a change in work practices and relies on the ruling in Rafferty v Bus Eireann [1997] 2 IR424. Any change in rostering does not require notification pursuant to the 1994 Act.

The Respondent’s position is that a Health and Safety complaint is not properly before the Adjudication Officer and is statute-barred. The Respondent says on 19th March 2024 an investigation into the Complainant’s failure to carry out reasonable instruction was commenced. The Complainant refused to wash the vessel. The Complainant said he did not feel it was safe to wash the vessel as it was raining and windy. The Investigation found it was raining, but not very windy and there were no weather warnings in relation to wind. The vessel was small. The Complainant would be wearing a wet suit. On the evening other personnel deemed it was safe, and the Team Lead completed the task safely that evening. The Complainant did not make a health and safety complaint that evening.

The Complainant is familiar with the process for making health and safety complaints. He made complaints previously in 2019 and 2021 which were resolved. The Respondent is of the view that this complaint is vexatious in nature and denies the allegations. The yards is an internal facility and is not on the street, it is brightly lit and is a chemical bunded area. There is no cover due to the irregular size of the vessels. Cold water showers are used for emergency spills only due to possibility of reaction. There is a risk assessment for washing vessels since 2016. The Complainant has taken various chemical awareness trainings during his employment.

No health and safety complaints were raised by the Complainant in relation to these issues. The Respondent submits that the complaint does not satisfy the test set out in Toni & Guy Blackrock Limited v Paul O’ Neill HSD095. There was no penalisation of the Complainant.

I heard and considered carefully the submissions and evidence of the parties. The Complainant is non-national and the hearings took place with an interpreter present to assist the Complainant.

The Complainant alleges a breach of S5 of the Terms of Employment (Information) Act 1994 that he was not notified of a change in his duties and shift pattern in writing by his employer. In this complaint, the Complainant refers to changes to his duties and shifts in 2021, and at the end of 2023.

The Respondent raises a preliminary issue that the complaint is statute-barred as it was received by the Workplace Relations Commission outside of the required six months statutory period. The complaint was received by the Workplace Relations Commission on 11th August 2024. The six-month period for lodging a complaint can be extended to twelve months by an Adjudication Officer where there is reasonable cause shown for the delay by the Complainant.

The Complainant provided a written submission on 17th December 2024 and applied for an extension of time to twelve months. He submits his claims are not out of time as there was a continuum of the contravention by the employer and relies on the decision in Health Service Executive v J McDermott [2014] IEHC 331. He submits the breach of the Act occurred on 23rd January 2024 when the employer failed to confirm the change within one month in writing as required by the Act. He says his work schedule is flexible and subject to regular changes. He sought clarity and he was targeted by bullying.

The Respondent is not aware of any circumstances which might have amounted to reasonable cause preventing the Complainant from lodging his complaint within the six-month period. The Respondent relies on the Labour Court decision in Hewlett-Packard Ireland Limited v Jakub Zajaczkowski [2019] 4 JIIEC 2101. Without prejudice to the foregoing, it has produced an email from Mr. Fenton to the Complainant informing him of the change to the shift times and says his complaint must fail.

S41 of the Workplace Relations Act 2015 provides;

(6) Subject to subsection (8) an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates…..

(8) An Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7 )( but not later than 6 months after such expiration) as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

“It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.

The Complainant has made his complaint outside the required statutory six-month period from the date of the alleged breach at the end of December 2023. The decision in Health Service Executive v J McDermott [2014] IEHC 331 held that only complaints which relate to the last six months prior to the presentation to the Rights Commissioner will not be time-barred. The Complainant has not provided any adequate explanation or excuse for his delay to amount to reasonable cause for his failure to make the claim within this period.

I have no jurisdiction in relation to his complaint which is statute-barred.

I have no jurisdiction in relation to the complaint which is statute-barred.