A Cleaner v A Facilities Management Company. ADJ-00037079. Workplace Relations Commission

• Judgment Date: 16 November 2022
• Date: 16 November 2022
• Docket Number: ADJ-00037079
• Year: 2022
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute. The Employer, though not objecting to the hearing of the dispute, informed the Workplace Relations Commission in advance that they would not be attending the hearing. Extensive submissions and co-worker statements were received from the Worker’s representative. The representative said that the Worker could not attend the hearing as she was ill but wished the hearing to go ahead in her absence. I am mindful of the limitations of a forum of this kind when investigating an industrial dispute. This was described clearly by Noonan J. in Mullally and ors v Labour Court [2015] IEHC 351)

“ It is in the nature of an industrial relations forum which is designed to facilitate the mediation of trade disputes and offer an opinion as to how such a dispute may be resolved. Its recommendation has no strictly legal effect but rather relies upon the moral authority of the expert statutory body from which it emanates. It does not give rise to justiciable rights such as would permit the applicants to seek judicial review”.

As outlined above, the investigation of an industrial dispute is not concerned with determining the legal rights or duties of any person. Ideally the Worker should be in attendance but under the particular circumstances as presented to me here, I was satisfied to proceed with the hearing in the presence of the Worker’s representative. The dispute concerned three particular issues.

Background:

The Worker was employed as a cleaner by the Employer, a facilities management company, on a pharmaceutical manufacturing site. The Worker received gross pay of €669; net €492.17 for a 37.5-hour week. The Worker submits that there are three component parts to her dispute (1) the unlawful reduction of overtime rate for the Bank Holiday (2) she is seeking a revocation of a final written warning and (3) that she was being bullied and harassed.

Summary of Workers Case:

Public Holiday Overtime Claim: The Worker submits that the Employer is in breach of contract in that it unilaterally and without agreement reduced her triple rate of overtime pay for a Bank Holiday from 1 August 2020. The Worker further submits that she consistently objected to this reduction in overtime pay despite two of her colleagues signing letters of agreement to the said reductions. The Worker rejects the excuse that the triple payment was based on a clerical error nor was the reduction due to the operation of the Employment Regulation Order (ERO) for the industry as she asserts that other employees have retained this triple payment. The Worker has consistently protested the production of a Letter of Agreement (dated 12th September 2019), purporting to contain her original signature agreeing to the reduction in her overtime rate, (exhibited). The Worker submits that it is clear that the letter and signature is copied and not an original and that the date on the accompanying letter is 26 September, whereas the two other employees signed theirs on 17 September, which was the day the worker was alleged to have signed the same letter they signed theirs, 17 September. The Worker contends that despite several attempts to be provided with the original letter of agreement as agreed by a member of management, the Employer has persistently failed to provide it despite there being allegedly two copies of the letter. The Worker’s submission contained a comprehensive list of correspondence on this issue, including correspondence from her solicitor at the time. The Worker submits that a recent confirmation that some employees onsite are still in receipt of the triple rate of overtime pay indicates there is a pay discrimination issue between her and other workers. The Worker is seeking an adjudication on this matter for the purpose of upholding her complaint of a historical premium triple rate for overtime worked on Public Holidays; the existence of a signed agreement to this effect, and to be reimbursed for the difference between the current reduced rate and the €39 (triple...