ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010391
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | A Restaurant |
Representatives |
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Complaint(s):
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-00013397-002 | 30/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00013397-003 | 30/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00013397-004 | 30/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00013397-005 | 30/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00013397-006 | 30/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00013397-007 | 30/08/2017 |
Date of Adjudication Hearing: 19/10/2018
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, andfollowing 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.
Background:
The Complainant, who is a full-time student, worked on a part-time basis at weekends and during college holidays, with the Respondent, who run the café. The Complainant commenced employment with the Respondent on 22 November 2015 and her employment ended on 22 March 2017, which was her last pay date. |
Summary of Complainant’s Case:
The Complainant submitted six complaints under various pieces of legislation, as set out below:
CA-00013397-002 – Payment of Wages Act, 1991 (Notice) The Complainant claims that she did not receive the appropriate payment in lieu of notice on the termination of her employment.
CA-00013397-003 – Organisation of Working Time Act, 1997 (Annual Leave) The first of the Complainant’s two complaints under the Organisation of Working Time Act relates to annual leave. She claims that she did not receive paid holiday/annual leave.
CA-00013397-004 - Organisation of Working Time Act, 1997 (Public Holidays) The Complainant’s second complaint under the 1997 Act relates to a claim that she did not receive her Public Holiday entitlements as set out in the Act.
CA-00013397-005 – Terms of Employment (Information) Act, 1994 The Complainant claims that she did not receive a statement in writing of the terms and conditions of employment.
CA-00013397-006 – Unfair Dismissals Act, 1977 The Complainant claims that she was unfairly dismissed by the Respondent.
At the Hearing, the Complainant submitted that, after an incident which involved her sister, the Respondent gave out to her (the Complainant). The Complainant stated that the incident in question related to her bringing her younger sister into the café after it was closed, so that she would not be waiting outside for the Complainant to finish up. According to the Complainant’s evidence, as a result of this incident, she was not offered any further hours of work by the Respondent.
The Complainant further stated that the normal notification of work hours was by way of a WhatsApp group, where staff had access to the work roster. According to the Complainant’s evidence she was not placed on the rota after 22 March 2017. The Complainant stated further that, as a result, she requested her P45 from the Respondent on 6 July 2017.
CA-00013397-007 – Minimum Notice & Terms of Employment Act, 1973, The Complainant stated that she did not receive her statutory minimum notice on termination of her employment. |
Summary of Respondent’s Case:
The Respondent did not attend the Hearing. However, a letter, dated 4 October 2017, was submitted to the WRC by the Respondent in response to the Complainant’s claims.
In this correspondence, the Respondent stated that the Complainant was employed since November 2015. It was further stated that the Complainant worked on a casual basis as she is a full-time student. According to the Respondent, the Complainant’s hours varied in relation to work that she made herself available for. It was further stated that work was offered to the Complainant, however, she chose not to accept the hours on offer as she is a full-time student.
According to this correspondence, the Complainant texted the Respondent looking for her P45. The Respondent submits that, therefore, the Complainant is not entitled to Statutory Notice she did not make herself available for work that was offered to her. It is further stated by the Respondent that the Complainant had not returned to the workplace since March 2017.
With regard to the issue of the contract of employment, the Respondent submitted that the Complainant did receive a contract and all other legislative documentation on commencement of employment. |
Findings and Conclusions:
CA-00013397-002 – Payment of Wages Act, 1991 (Notice) The Complainant’s claim made under this Act is similar to a claim under the Minimum Notice and Terms of Employment Act, 1973 (CA-00013397-007). Consequently, the Complainant’s claim for payment of notice is dealt with below under the 1973 Act and the claim under this Act is, therefore, dismissed.
CA-00013397-003 (Annual Leave) and CA-00013397-004 (Public Holidays) At the Hearing, the Complainant submitted that she had recently received a cheque from the Respondent in the amount of €992.00. This cheque was to cover outstanding wages and Annual Leave/Public Holiday payments.
On this basis, I am satisfied that the Complainant’s two claims under the Organisation of Working Time Act, have been fully addressed by the Respondent and these claims are, therefore, dismissed.
CA-00013397-005 – Terms of Employment (Information) Act, 1994 In the correspondence received from the Respondent it is stated that the Complainant received a contract of employment at the commencement of her employment. However, in her oral evidence at the Hearing, the Complainant stated that she had no record of receiving Terms and Conditions of employment when she commenced work with the Respondent.
On the contrary, the Complainant stated that, following a complaint to the WRC, some of her colleagues were provided with contracts and asked to sign them. According to the Complainant she was not provided with or asked to sign a contract.
The Complainant came across at the Hearing as a genuine and credible witness to the events and details of her complaints. In relation to this specific complaint, I find there to be a logic which would suggest that, on the balance of probability, it is more likely than not that the Complainant did not receive a contract or statement of terms and conditions of employment when she commenced working with the Respondent, or indeed at all.
Therefore, taking all of this into consideration, I find that the Respondent is in breach of the 1994 Act and, as a result, I find in the Complainant’s favour and award her an amount of €100.00 as fair and reasonable compensation in the circumstances.
CA-00013397-006 – Unfair Dismissals Act, 1977 As previously stated, I found the Complainant’s evidence to be genuine and credible. Having carefully considered that evidence, I am satisfied that it was not the Complainant who refused to work rather it was the Respondent who did not offer same.
From the evidence presented, I am satisfied that the Complainant was not placed on the roster, which was the normal and regular indication that work was available. In the absence of any oral evidence from the Respondent, it is difficult to determine whether or not the alleged incident involving the Complainant’s sister was the reason she (the Complainant) received no further hours of work. However, notwithstanding this I am satisfied that the Complainant was not offered any work after her last payment, which was on 22 March 2017.
Taking all of the above into consideration, I am satisfied that the Complainant’s employment was terminated by the Respondent without any reasonable cause or explanation as to why this was so. Consequently, I find that the Complainant’s dismissal is therefore unfair, in line with the provisions of the Unfair Dismissal’s Act, 1977.
In line with this finding, I award the Complainant an amount of €750.00 in compensation for her loss. In the circumstances that prevailed in relation to this case, i.e. the fact that the Complainant is not in or seeking permanent employment, I am satisfied that the aforementioned award represents a fair and reasonable compensation.
CA-00013397-007 – Minimum Notice & Terms of Employment Act, 1973, Based on the findings as set out above in relation to the Complainant’s claim for Unfair Dismissal, I find that claim in relation to payment of minimum notice is also well-founded.
Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the relevant period of notice as follows:
“An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of 13 weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2a) of this section.”
Subsection (2a) as referred to above, sets out, inter alia, that:
“the minimum notice to be given by an employer to terminate the contract of employment of his employees shall be – (a) if the employee has been in the continuous service of his employer for less than two years, one week,”.
As the Complainant commenced work with the Respondent on 22 November 2015 and the effective date of termination of her employment is 22 March 2017, I find that the Complainant is entitled to one week’s notice are set out in the above provisions.
Therefore, I find in the Complainant’s favour in the amount of €132.73, representing one week’s pay as set out in the Complainant’s complaint.
The Complainant’s complaint submitted under the Payment of Wages Act, 1991, (CA-00013397-002) is identical to that made under the 1973 Act. Consequently, as the award had been made under the 1973 Act, the Complainant’s claim under the 1991 Act is dismissed. |
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.
and
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.
Having carefully considered the written and oral evidence of the Complainant and the written evidence of the Respondent and based on the considerations/findings as detailed above, I set out my findings in relation to each element of the Complainant’s complaint as follows:
CA-00013397-002 – Payment of Wages Act, 1991 (Notice) The Complainant’s claim under this Act is dismissed on the basis that it is similar to that which is adjudicated on below under the Minimum Notice and Terms of Employment Act, 1973,(CA-00013397-007)
CA-00013397-003 – Organisation of Working Time Act, 1997 (Annual Leave) The Complainant’s claim for outstanding Annual Leave payment under the 1997 Act is dismissed on the basis that the Respondent provided payment for same to the Complainant prior to the Hearing.
CA-00013397-004 - Organisation of Working Time Act, 1997 (Public Holidays) The Complainant’s claim for outstanding payment, in relation to Public Holidays, under the 1997 Act, is dismissed on the basis that the Respondent provided payment for same to the Complainant prior to the Hearing.
CA-00013397-005 – Terms of Employment (Information) Act, 1994 I find that the Respondent was in breach of the 1994 Act and award an amount of €100 in compensation to the Complainant for this breach.
CA-00013397-006 – Unfair Dismissals Act, 1977 I find that the Respondent’s termination of the Complainant’s employment represented an unfair dismissal and I award the Complainant an amount of €750 in compensation for her loss in this regard.
CA-00013397-007 – Minimum Notice & Terms of Employment Act, 1973, I find that the Complainant’s claim in relation to minimum notice is well-founded and I award her €132.73, representing one week’s pay in line with the provisions of the 1973 Act. |
Dated: 13th February 2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Key Words:
Unfair Dismissal Act Payment of Wages Act Terms of Employment (Information) Act Organisation of Working Time Act |