Case Number: ADJ-00025132. Workplace Relations Commission

• Docket Number: ADJ-00025132
• Hearing Date: 07 February 2020
• Date: 30 June 2020
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints/dispute to me by the Director General, I inquired into the complaints/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/dispute. The parties were afforded the opportunity to examine and cross examine each other’s evidence as part of the hearing. The complainant and a former director of the respondent company, now in liquidation, gave evidence. Questions were asked by each party.

The complaint submitted a complaint form to the Workplace Relations Commission on 10 September 2019 that contained ten complaints. Subsequently he retained a firm of solicitors to represent him and a second complaint form was submitted on 29 October 2019. The second form contained four complaints, some of which duplicated the complaints in the original form. On 08 November 2019 the Workplace Relations Commission sent the complainant’s solicitor two letters acknowledging receipt of the two complaint forms, sought further details and advised that complaints CA-00030827 and CA-00031881 had been amalgamated and both would be heard together. Following further correspondence, the complainant’s solicitor, by letter dates 06 December 2019, withdrew several complaints. The submission presented at the hearing dealt with the following complaints:

CA-00030827-010 & CA-00031881-001 – A complaint pursuant Section 8 of the Unfair Dismissals Act, 1977.

CA-00031881-002 – Complaints pursuant to Section 6 of the Payment of Wages Act, 1991.

CA-00030827-007 – Complaints pursuant to Section 27 of the Organisation of Working Time Act, 1997.

CA-00030827-008 – A complaint pursuant to Section 7 of the Terms of Employment (Information) Act, 1994.

CA-00031881-003 – A complaint of penalisation pursuant to Section 28 of the Safety, Health and Welfare at Work Act, 2005.

CA-00031881-004 – A complaint of penalisation pursuant to Schedule 2 of the Protected Disclosures Act, 2014.

At the hearing counsel for the complainant amended paragraph 1.3 of their submission to note that the second complaint form were submitted on 29 October 2019 and not 05 December 2019 as stated.

Background:

The complainant worked as a social care worker with the respondent company from 13 September 2016 to 30 April 2019. He worked between 30 to 70 hours per week, depending on shifts. He was paid €15 per hour gross with additional payments for sleepover duty and on call duty. His gross pay for 2018 was €58,191 and for 2019 was €12,091. He submitted complaints to the Workplace Relations Commission on 10 September 2019 and 29 October 2019. He alleges that he was unfairly dismissed, that he was penalised for making protected disclosures, that he did not receive full pay and holiday pay due at the date of termination and did not receive a written statement of his terms and conditions of employment.

Summary of Complainant’s Case:

The complainant was employed by the respondent as a social care worker. He commenced employment on 13 September 2016. He worked with young adults and children and their families. The working pattern included overnight shifts. The complainant maintained he performed superbly well in his role and was never the subject of any disciplinary or performance related complaint or investigation prior to his dismissal. From 2017 up until the point that he left the complainant raised complaints continuously about the way service users were being treated. The complainant was of the view that the complaints related to serious issues such as rents, for houses occupied by service users, not being paid, lack of heating in the houses, cash being mishandled, a lack of appropriate training for staff and a lack of proper supervision. The complainant claimed that no action was taken on any of his complaints. The complainant claims he was traumatised after he was sent to collect a service user in Northern Ireland and bring her to one of the service’s houses. The service user had suffered a miscarriage. The complainant was traumatised when he was handed the foetus wrapped in cotton wool. He was distressed and although he made a complaint there was no follow up with him or with the service user. He stated he asked for counselling following this event, but none was provided to him. The complainant claims he noticed a change in attitude towards him when he started following up on the complaints he had made. He claims that his hours were cut, and sleepover shifts were removed. Payment became irregular, often late or the full amount due was not paid on time. The complainant claims that he was removed from the books by the respondent without a reason being provided. He was not told he was dismissed and only discovered that his employment had ceased when he logged onto the Revenue Online System. On ROS it was shown that his employment ceased on 30 April 2019. The complainant claims he was due €1,600 in wages and €2,592 in outstanding holiday pay which he states the respondent failed, refused or neglected to pay to him. The complaint claims he made disclosures to his employer about petty cash not being accounted for, service users not being properly provided for and staff not receiving adequate training, support or supervision. The complainant maintains these disclosures come within Section 5(3)(a), (b) and (d) of the Protected Disclosure Act, 2014. He maintains that these disclosures amounted to protected disclosures for the purpose of the2014 Act and that, as such, he is protected from penalisation in the form of dismissal resulting wholly or mainly from such a disclosure. The complainant claims he was penalised for making these complaints by having his hours unilaterally reduced without explanation, being forced out of the respondent and by his pay being erratically and improperly discharged. The complainant relied on the decision of Comerford J in Dougan & Clark v Lifeline Ambulances Ltd (Unreported Circuit Court) to support his claim. The complainant maintained that the complaints made by him to his employer were inherently related to the safety and health of both service users and employees of the respondent and were, as such, protected complaints under the Safety, Health & Welfare at Work Act, 2005. The complainant seeks awards of compensation in respect of the above complaints. Further, he seeks compensation pursuant to the Terms of Employment (Information) Act, 1991 for failure by the respondent to provide him with a statement in writing of his terms and conditions of employment. He also seeks payment pursuant to the Organisation of Working Time Act in respect of unpaid accrued statutory annual leave in the sum of €4,192. The complainant submitted that the respondent failed to act reasonably in circumstances where they failed to conduct any or any adequate investigation and failed to invoke any or any adequate disciplinary process. Further, that the respondent failed to afford the complainant his entitlement to fair procedures in relation to his dismissal. The complainant relied on the following cases to support his claims: Mooney v An Post 4 IR 288, Cassidy v Shannon Castle Banquets and Heritage Limited [2000] E.L.R. 248, Redmond v Ryanair Ltd UD123/05, O’Ceallaigh v An Bord Altranais [2000] 4 IR 54, Burns v The Governor of Castlerea Prison [2009] IESC 33, Shortt v Royal Liver Insurance [2008] IEHC 332, O’Leary v Eagle Star Life Assurance Co of Ireland [2003] E.L.R. 223.

Summary of Respondent’s Case:

The respondent company was placed into provisional liquidation on 20 August 2019. The liquidation was confirmed on 11 September 2019. The complainant was aware that the respondent was in liquidation at the time he submitted his complaint to the Workplace Relations Commission. The complainant signed the complaint on 05 September 2019 and on the same day he returned a questionnaire which the liquidator had circulated to employees and ex-employees of the respondent company in which he did not disclose any claim other than outstanding pay due and payment for annual leave. The respondent stated it had very limited access to documentation as it is in liquidation. It notes that it is regrettable that the complainant did not include any real detail of his claim in his initial claim form. Time Limits The respondent states that the complainant did not work for the respondent from 01 May 2019 onwards. It is submitted that claims on the second complaint form are out of time as they were submitted outside the six-month time limit within which such claims may be brought. The respondent refers to the second complaint form being submitted to the Workplace Relations Commission in December 2019. It is submitted that complaints made on the second...