ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00029331
Parties:
| Complainant | Respondent |
Anonymised Parties | A Claimant | A Respondent |
Representatives |
| Aisling Parkinson DAC Beachcroft |
Complaint(s):
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-00039176-001 | 13/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00039176-002 | 13/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00039176-003 | 13/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039176-004 | 13/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00039176-005 | 13/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00039176-006 | 13/08/2020 |
Date of Adjudication Hearing: 26/07/2021
Workplace Relations Commission Adjudication Officer: Jim O'Connell
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 r Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
This matter was heard by way remote hearing pursuant to the Civil law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
No objections were raised to the remote hearing.
The parties were advised that arising from the Supreme Court judgement in the Zalewski v Adjudication Officer and WRC (2021) IESC 24 it is necessary for Adjudication Officers to implement certain procedural changes with immediate effect in relation to the conduct of hearings pending the introduction of the required legislative amendments to address the issues.
Therefore, I wish to confirm that the following procedural changes are applicable to the hearing of all complaints being heard now, even if they were lodged before the 6th April,21.
In this regard, the parties should note that all adjudication hearings are now open to the public, other than where the investigation of the complaint does not amount to the administration of justice.
Furthermore, where a serious, direct conflict of evidence in the complaint before an adjudication officer emerges in the course of the proceedings, the Adjudication Officer will be obliged to adjourn the hearing to wait the require amendments of the Workplace Relations act 2015 and related enactments to grant the WRC the power to administer the \Oath or Affirmation.
No objections
Background
The complainant was employed by the respondent from the 1st November 2018 until the 24th February 2020. She worked 37.5 hours per week and was paid 360 gross per week
The complainant is claiming that she was Unfairly dismissed
The respondent has rejected these complaints and stated that she was not dismissed from her employment.
Terms of Employment (Information) Act 1994
Ca-00039176-001
The complainant stated that she did not receive her core terms in writing under the above act
The Respondent submitted details of the complainant contract of employment given to the complainant
Findings
I find that the complainant was given her contract of employment when she commenced employment.
Unfair Dismissal Act
Ca-00039176-002
Summary of Respondent’s position
The complainant was employed by the Respondent as a member of the kitchen Staff of the Liner Weaver, a pub in Cork City. The Complainant is advancing claims that she was Unfairly Dismissed Acts1977, as well as claims under the Terms of Employment (information) Act 1994, the Industrial relations Act 1969, the Minimum Notice and Terms of Employment Act 1973 and the Organization of Working Time Act
The respondent refutes the Complainants complaints in their entirety and maintains that the complainant has never been dismissed by the respondent, contract to statutory provision or otherwise. At no time did the respondent have any intention to dismiss the complainant from her employment. The Complainants has not been penalised for availing of any entitlements arising out of her pregnancy on any basis whatsoever. In absence of a dismissal, the complaints claim in relation to the minimum Notice and terms of Employment and her claims under the Organisation of Working Time Act 1997 are misconceived.
It was submitted that on the 27th February 2020, an administrative error was made in relation to the employee status of the Complainant. In the course of changing a different employee’s status to Leaver (i.e. an employee who was voluntary resigning) on the respondent staff admin system, the incorrect employee number was entered. This error resulted in the erroneous changing of the Complainant employment status on the respondent’s admin system to that of an employee leaving employment with the respondent.
Summary of Complainants position
The complainant stated that on the 3rd September 2019 that she informed the respondent of her pregnancy. That she became ill on the 17th November 2019 on medically certified leave. This became extended because of concerns on the [part of her GP} On the 27th December 2019 the complainant had a meeting with Management to discuss her absence and forms were signed for long tern sickness leave and it was agreed that she would be out on long term sickness from the 1st January 2020 to April 16th, 2020. The complainant stated that she received an email from the respondent in March 2020 suggesting that she had left her employment. The complaint stated that she was invited to email the respondent if she disputed that she had left. She was not given any notice to leave her employment and she only realised that her employment was terminated when she checked her status online.
Findings
I find that the complainant did receive an email that her employment was terminated. I find that the complainant did try to get in touch with the respondent but due to Covid she had great difficulty in getting a response as no person was available to be contacted. I find that when the respondent realised that an error had been made.
The Respondent confirmed to the complainant that she was still employed by them from her original start date, there was no loss in service or any benefits whatsoever to the complainant
Industrial Relations
CA-000 39176-0034
I find that the issues raised under the Industrial Relations Act had already been dealt with under CA-00039176-002
Minimum Notice and Terms of Employment Act
Ca-00039176-004
The complaint stated that she was not given any notice when her employment was terminated
The respondent submitted that it was an error, and the complainant was not dismissed
Findings
I refer to Ca-00039176-002 where I decided that the complainant was not dismissed
Organisation of Working Time Act 1997
CA-00039176-005
The complaint stated that she was not paid her annual Leave entitlement
Findings
I refer to the decisions under the Unfair Dismissal Act ca -00039176-002 and Minimum Notice and Terms of Employment Act as set out in CA-00039176-004. I have found that there was no dismissal. Therefore, holiday pay may only be paid in lieu of cessation of employment as per sec 23 of the Organisation of Working time act. Otherwise, the Complainant returns to work to avail of any accrued entitlements
CA-00039176-006 Public Holiday Organisation of Working Time Act 1997
The complainant stated that she has not been paid her Public Holiday entitlement
I find that it’s the respondent who determines which of these four options should apply. It is accepted that she has an entitlement to compensation
The complainant submitted that she did not receive her Public Holiday /Annual leave entitlement
Findings
I find that as per Sec 21 of this act an employee has four options on how to be compensated for Public Holidays
I find that it’s the employer who determines which of these four options should apply.
Terms of Employment (Information) Act 1994
Ca-00039176—001
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6
I have decided the complaint is not well founded and falls
CA-00039176-002
Unfair Dismissal Act 1977
Decision
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.
I have decided that no dismissal took place and the complaint falls.
CA-00039176-003
Industrial Relations Act 1969
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
Recommendation
These disputers have been dealt with under CA-00039176-002
Minimum Notice and Terms of Employment Act
Ca-00039176-004
Decision
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule
I have decided that the complaint is not well founded and falls.
Organisation of Working Time Act 1997
CA-00039176-005
Decision
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule
For the reasons stated above that the complaint is not well founded and fall
Public Holiday Organisation of Working Time Act 1997
CA-00039176-006
Decision
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule
I find that as per Sec 21 of this act an employee has four options on how to be compensated for Public Holidays
I find that it’s the employer who determines which of these four options should apply.
Dated: 9th September 2021
Workplace Relations Commission Adjudication Officer: Jim O'Connell
Key Words:
TE/UD/WT. |