ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00049563
Parties:
| Complainant | Respondent |
Parties | Barbara Mc Donagh | Condi Hospitality Limited Condi Hospitality Limited |
Representatives |
|
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Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00060628-001 | 20/12/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00060628-002 | 20/12/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00060628-004 | 20/12/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00060628-006 | 20/12/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00060628-008 | 20/12/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00060628-010 | 20/12/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00060628-011 | 20/12/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00060628-013 | 20/12/2023 |
Date of Adjudication Hearing: 21/06/2024
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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. Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. Where submissions were received, they were exchanged. The complainant gave evidence under affirmation the respondent did not attend.
Background:
The complainant submits that she was unfairly dismissed, that following a transfer of undertaking her new employer failed to transfer over or observe terms of employment, did not inform employee representative of certain details of a transfer, did not consult or advise with regards a transfer, that she did not receive her minimum notice and did not receive annual leave owing. |
Summary of Complainant’s Case: CA-00060628-001
The complainant submitted that she was unfairly dismissed without notice and submitted that the respondent did not recognise her previous service as he referred to a probationary period in the letter of termination.
The complainant’s complaints were received by the WRC on 20/12/2023 and the complainant submitted that she commenced employment on 21/02/2022, her employment ended on 13/10/2023, her hourly rate was €18.50, her gross was €740 and she worked 40 hours.
The complainant gave evidence that she started with the previous owner as a head chef and got on well with the manager but she knew the business was not doing well and thought it might close and her holidays had accumulated. On 21/06/2022 the owner Mr A came in and introduced her to Mr B as the new owner who said everything was going to be different and better and that everything would be made in the kitchen. She told him they were not set up to make everything on site but he proceeded in that way. Her pay increased from €18.00 to €18.50 hourly. Mr B brought in his executive chef Mr C and he made changes that were not suitable and she was trying to organise food for the weekend and there was no traceability of the food. The new executive chef took full charge and she found the new executive chef difficult and he refused to assist and had her in tears. A new manager Ms D was brought in. The complainant was to take annual leave from 19/08/2023 and was due back on 06/09/2023 but came back on 05/09/2023 at the request of Ms D and when the complainant returned from holidays she found that Mr C had walked out as he had found the work difficult and had been rude to the staff and had a disagreement with Mr B.
The complainant said that things went downhill from there and that the orders for the kitchen were insufficient and there was no traceability and morale was low and it was a horrible working environment. Working hours were extended and the place was not cleaned and Ms D said she would speak to the evening chef. There were arguments and the complainant was told she had no right to demand a clean place and there were disagreements about such matters on 09/10/2023 and when she returned on Thursday 12/10/2023 and Friday 13/10/2023 there was a cool atmosphere and the complainant got a call to say that she was no longer needed and was told it was effective immediately. When the complainant asked about a disciplinary procedure she was told that she was the last one in and the complainant picked up her belongings and left and the letter she received referred to probationary period even though she had been there with the previous owner and there had been no break in service. The letter of termination outlined “I wish to inform you that your employment with Condi Hospitality has been terminated with immediate effect on 13.10.2023 during your probationary period Thank you for service and wish you continued success for the future.”.
The complainant replied on 24/10/2023 questioning this letter “I had questioned you on this and you replied " you are the common denominator and this is with immediate effect l will give you a good reference" I had not received any disciplinary warnings prior to this and you gave me no option to appeal it as you said your decision was final with immediate effect.”
It took her a while to look for work after she was dismissed as she was upset and shocked and that she found it hard to get work locally as she believed the owner had ruined her reputation. The complainant secured work elsewhere but she was only offered a part-time role where her earnings are €450 weekly compared to €740 weekly and hopes she will be offered full-time in the future. The complainant’s evidence was that she had been a head chef with the previous owners and worked shorter days and there was no consultation about the transfer of the business or engagement with any representative and she was not advised about the transfer of undertakings. There was no minimum notice paid to her for her service and she was owed annual leave about approximately 124 hours for her employment.
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Summary of Respondent’s Case: CA-00060628-001
The respondent did not attend the hearing. |
Findings and Conclusions: CA-00060628-001
The complainant submits she was unfairly dismissed and the respondent did not attend the hearing. I am satisfied that the respondent was on notice of the hearing and find their failure to attend unexplained. The complainant gave evidence that she commenced employment on 21/02/2022 and the business was transferred to the named responded in 20/06/2022 and her employment ended on 13/10/2023, her hourly was €18.50 and her gross was €740 and she worked 40 hours.
In the first instance it is required of me to determine whether or not the TUPE regulations apply and thereby determines the length of service of the complainant. The law in this area is largely governed by the relevant provisions of Directive 77/187/EEC and Statutory Instrument Number 131/2003 –European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003 together with what has been regarded by the EAT as “diverse, varied unwieldly and at times contradictory case law” (TU31/2014, TU32/2014, TU33/2014, TU34/2014, TU35/2014).
The pertinent relevant sections in S.I. 131 are as follows: 3. (1) These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger. (2) Subject to this Regulation, in these Regulations - “transfer” means the transfer of an economic entity which retains its identity; “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity. (3) These Regulations shall apply to public and private undertakings engaged in economic activities whether or not they are operating for gain. (4) An administrative reorganisation of public administrative authorities or the transfer of administrative functions between public administrative authorities is not a transfer for the purposes of these Regulations. (5) These Regulations shall not apply to sea-going vessels. Rights and obligations. 4. (1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee. (2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement. (3) Subject to paragraph (4), this Regulation shall not apply in relation to employees' rights to old-age, invalidity or survivors’ benefits under supplementary company or inter-company pension schemes that do not fall within the Social Welfare Acts. (4) (a) The interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to 2003 are protected under those Acts. (b) The transferee shall ensure that the interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors’ benefits, under a supplementary company pension scheme, other than a supplementary pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to 2003, are protected.
Cases are therefore, determined more or less on their own unique facts. It is clear from the landmark Suzen case [1997] IRLR 255 that there may be a transfer of an undertaking although there has been no transfer of assets and that there may too be a transfer where there is no contractual link between the transferor and transferee. ECM V Cox 1998 IRLR 255 highlights, “It can be said with confidence that neither the presence nor the absence of any one factor will demonstrate that a transfer of undertaking has or has not occurred. It is a question of looking at the facts and keeping an eye on the purpose and protection given by the Directive”.
The regulation further outlines Dismissals and termination of employment 5. (1) The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee is prohibited. (2) Nothing in this Regulation shall be construed as prohibiting dismissals for economic, technical or organisational reasons which entail changes in the workforce. (3) If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment. (4) If a dismissal of an employee, in contravention of paragraph (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001 relief may not be granted to the employee in respect of that dismissal both under these Regulations and under those Acts.
It would appear in this instant case that the undertaking was a stable undertaking with an ongoing life of its own with the tangible assets namely the premises and contents as well as customers transferred and I also note the credible evidence of the complainant and having reviewed her original contract from 2022 prior to the involvement of the instant respondent and reviewing the more recent contract, I determine that the TUPE Regulations can be applied to the unique and specific circumstances of the present case and that the complainant has the requisite service required to proceed with her claim under the Unfair Dismissals Act, 1977.
Section 1 of the Act defines “dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, The dismissal of an employee, pursuant to Section 6 of the Unfair Dismissals Act 1997 as amended, shall be deemed to be an unfair dismissal …unless having regard to all the circumstances, there were substantial grounds justifying the dismissal”.
and the burden of proof is firmly on the Respondent.
The test for unfair dismissal under s.6 includes whether the decision is within the range of responses open to a reasonable employer. It would appear that the business was struggling and the complainant without notice was advised that her employment was terminated and this termination appeared to follow no procedures or process. Cassidy v Shannon Castle Banquets and Heritage Ltd [2000] ELR 248 and Mooney v An Post 4 IR 288 outlined the importance of fair procedures and in Bunyan v. United Dominions Trust (1982) IRLM 404, the Employment Appeals Tribunal re-stated the well-established principle that “..fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved.”’
Taking note of the credible evidence of the complainant and the submissions including her letter of dismissal, I find in all the circumstances of the case that the dismissal of the complainant was unfair in all the circumstances.
The complainant submits that she has only been able to secure part-time employment at a rate of €450 compared with her previous earnings of €740 and there was a period of approximately 15 weeks when she did not work. I note that Sheehan v Continental Administration Co Ltd. 858/1999 outlined that “A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work”
Taking into consideration all the circumstances of the complaint and noting some but limited efforts by the complainant to mitigate her loss, I find that the dismissal was unfair and award the complainant €6,000 which amounts to approximately 8 weeks’ pay.
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Summary of Complainant’s Case: CA-00060628-002
The complainant submitted that the new/current employer (Transferee) did not ensure that terms and conditions which existed at the time of transfer were transferred and that this impacted on her with the change in the environment, the change in her working hours and there was a change in her job title of head chef which was not transferred.
The complainant’s complaints were received by the WRC on 20/12/2023 and the complainant submitted that she commenced employment on 21/02/2022, her employment ended on 13/10/2023, her hourly rate was €18.50, her gross was €740 and she worked 40 hours.
The complainant gave evidence that she started with the previous owner as a head chef and got on well with the manager but she knew the business was not doing well and thought it might close and her holidays had accumulated. On 21/06/2023 the owner Mr A came in and introduced her to Mr B as the new owner who said everything was going to be different and better and that everything would be made in the kitchen. She told him they were not set up to make everything on site but he proceeded in that way. Her pay increased from €18.00 to €18.50 hourly. Mr B brought in his executive chef Mr C and he made changes that were not suitable and she was trying to organise food for the weekend and there was no traceability of the food. The new executive chef took full charge and she found the new executive chef difficult and he refused to assist and had her in tears. A new manager Ms D was brought in. The complainant was to take annual leave from 19/08/2023 and was due back on 06/09/2023 but came back on 05/09/2023 at the request of Ms D and when the complainant returned from holidays she found that Mr C had walked out as he had found the work difficult and had been rude to the staff and had a disagreement with Mr B.
The complainant said that things went downhill from there and that the orders for the kitchen were insufficient and there was no traceability and morale was low and it was a horrible working environment. Working hours were extended and the place was not cleaned and Ms D said she would speak to the evening chef. There were arguments and the complainant was told she had no right to demand a clean place and there were disagreements about such matters on 09/10/2023 and when she returned on Thursday 12/10/2023 and Friday 13/10/2023 there was a cool atmosphere and the complainant got a call to say that she was no longer needed and was told it was effective immediately. When the complainant asked about a disciplinary procedure she was told that she was the last one in and the complainant picked up her belongings and left and the letter she received referred to probationary period even though she had been there with the previous owner and there had been no break in service. The letter of termination outlined “I wish to inform you that your employment with Condi Hospitality has been terminated with immediate effect on 13.10.2023 during your probationary period Thank you for service and wish you continued success for the future.”.
The complainant replied on 24/10/2023 questioning this letter “I had questioned you on this and you replied " you are the common denominator and this is with immediate effect l will give you a good reference" I had not received any disciplinary warnings prior to this and you gave me no option to appeal it as you said your decision was final with immediate effect.”
It took her a while to look for work after she was dismissed as she was upset and shocked and that she found it hard to get work locally as she believed the owner had ruined her reputation. The complainant secured work elsewhere but she was only offered a part-time role where her earnings are €450 weekly compared to €740 weekly and hopes she will be offered full-time in the future. The complainant’s evidence was that she had been a head chef with the previous owners and worked shorter days and there was no consultation about the transfer of the business or engagement with any representative and she was not advised about the transfer of undertakings. There was no minimum notice paid to her for her service and she was owed annual leave about approximately 124 hours for her employment.
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Summary of Respondent’s Case: CA-00060628-002
The respondent did not attend the hearing. |
Findings and Conclusions: CA-00060628-002
The complainant submits that the new/current employer (Transferee) did not ensure that terms and conditions which existed at the time of transfer were transferred and that this impacted on her with the change in the environment, the change in her working hours and the change in job title of head chef which was not transferred. The respondent did not attend the hearing. I am satisfied that the respondent was on notice of the hearing and find their failure to attend unexplained. The complainant gave evidence that she commenced employment on 21/02/2022 and the business was transferred to the named responded in June 2022 and her employment ended on 13/10/2023 and her hourly was €18.50 and her gross was €740 and she worked 40 hours.
As outlined in CA-00060628-001 I determine that the TUPE Regulations can be applied to the unique and specific circumstances of the present case.
The law in this area is largely governed by the relevant provisions of Directive 77/187/EEC and Statutory Instrument Number 131/2003 –European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003 together with what has been regarded by the EAT as “diverse, varied unwieldly and at times contradictory case law” (TU31/2014, TU32/2014, TU33/2014, TU34/2014, TU35/2014).
The pertinent relevant sections in S.I. 131 are as follows: “Regulation 4/ (1) The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee. (2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed under in any collective agreement on the same terms applicable to the transferor that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.”
As Regulation 4(1) provides that the previous employer’s (i.e. Transferor’s) rights and obligations arising from a contract of employment existing on the date of transfer shall, by reason of such transfer, transfer to the new employer (i.e. the Transferee) and having heard the credible evidence of the complainant including the complainant’s job title and hours of work failed to be transferred I find that the complaint is well founded and uphold the complaint and award the complainant €1500. .
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Summary of Complainant’s Case: CA-00060628-004
The new/current employer (Transferee) did not inform employee representatives of certain details of the transfer.
The complainant’s complaints were received by the WRC on 20/12/2023 and the complainant submitted that she commenced employment on 21/02/2022, her employment ended on 13/10/2023, her hourly rate was €18.50, her gross was €740, and she worked 40 hours.
The complainant gave evidence that she started with the previous owner as a head chef and got on well with the manager but she knew the business was not doing well and thought it might close and her holidays had accumulated. On 21/06/2023 the owner Mr A came in and introduced her to Mr B as the new owner who said everything was going to be different and better and that everything would be made in the kitchen. She told him they were not set up to make everything on site but he proceeded in that way. Her pay increased from €18.00 to €18.50 hourly. Mr B brought in his executive chef Mr C and he made changes that were not suitable and she was trying to organise food for the weekend and there was no traceability of the food. The new executive chef took full charge and she found the new executive chef difficult and he refused to assist and had her in tears. A new manager Ms D was brought in. The complainant was to take annual leave from 19/08/2023 and was due back on 06/09/2023 but came back on 05/09/2023 at the request of Ms D and when the complainant returned from holidays she found that Mr C had walked out as he had found the work difficult and had been rude to the staff and had a disagreement with Mr B.
The complainant said that things went downhill from there and that the orders for the kitchen were insufficient and there was no traceability and morale was low and it was a horrible working environment. Working hours were extended and the place was not cleaned and Ms D said she would speak to the evening chef. There were arguments and the complainant was told she had no right to demand a clean place and there were disagreements about such matters on 09/10/2023 and when she returned on Thursday 12/10/2023 and Friday 13/10/2023 there was a cool atmosphere and the complainant got a call to say that she was no longer needed and was told it was effective immediately. When the complainant asked about a disciplinary procedure she was told that she was the last one in and the complainant picked up her belongings and left and the letter she received referred to probationary period even though she had been there with the previous owner and there had been no break in service. The letter of termination outlined “I wish to inform you that your employment with Condi Hospitality has been terminated with immediate effect on 13.10.2023 during your probationary period Thank you for service and wish you continued success for the future.”.
The complainant replied on 24/10/2023 questioning this letter “I had questioned you on this and you replied " you are the common denominator and this is with immediate effect l will give you a good reference" I had not received any disciplinary warnings prior to this and you gave me no option to appeal it as you said your decision was final with immediate effect.”
It took her a while to look for work after she was dismissed as she was upset and shocked and that she found it hard to get work locally as she believed the owner had ruined her reputation. The complainant secured work elsewhere but she was only offered a part-time role where her earnings are €450 weekly compared to €740 weekly and hopes she will be offered full-time in the future. The complainant’s evidence was that she had been a head chef with the previous owners and worked shorter days and there was no consultation about the transfer of the business or engagement with any representative and she was not advised about the transfer of undertakings. There was no minimum notice paid to her for her service and she was owed annual leave about approximately 124 hours for her employment.
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Summary of Respondent’s Case: CA-00060628-004
The respondent did not attend the hearing. |
Findings and Conclusions: CA-00060628-004
The complainant submits that the new/current employer (Transferee) did not inform employee representatives of certain details of the transfer. The respondent did not attend the hearing. I am satisfied that the respondent was on notice of the hearing and find their failure to attend unexplained. The complainant gave evidence that she commenced employment on 21/02/2022 and the business was transferred to the named responded in June 2022 and her employment ended on 13/10/2023 and her hourly was €18.50 and her gross was €740 and she worked 40 hours.
As outlined in CA-00060628-001 I determine that the TUPE Regulations can be applied to the unique and specific circumstances of the present case.
The law in this area is largely governed by the relevant provisions of Directive 77/187/EEC and Statutory Instrument Number 131/2003 –European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003 together with what has been regarded by the EAT as “diverse, varied unwieldly and at times contradictory case law” (TU31/2014, TU32/2014, TU33/2014, TU34/2014, TU35/2014).
The pertinent relevant sections in S.I. 131 are as follows: “Regulation 4/ (1) The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee. (2)Following a transfer, the transferee shall continue to observe the terms and conditions agreed under in any collective agreement on the same terms applicable to the transferor that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.” Regulation 8 8. (1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of - (a) the date or proposed date of the transfer; (b) the reasons for the transfer; (c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them and (d) any measures envisaged in relation to the employees. (2) The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out. (3) The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment. (4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement. (5) Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation. (6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following: (a) the date or proposed date of the transfer; (b) the reasons for the transfer; (c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee; and (d) any measures envisaged in relation to the employees. (7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.
Regulation 8 of the European Communities (Transfer of Undertakings) Regulations, 2003 provides that the new employer (Transferee) must inform their employee representatives affected by a transfer of the date or proposed date of the transfer, the reasons for the transfer, the legal, economic and social implications of the transfer and any measures envisaged in relation to the employees. The new employer (Transferee) must give this information to the employee representatives not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment or shall put in placea procedure whereby the employees may choose from among their number a person or persons to represent them. The complainant’s credible evidence was that there was no information provided to employee representatives or a procedure put in place and the respondent did not attend and taking note of the impact that such failures had on the complainant’s employment, I uphold the complaint and award the complainant €740.
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Summary of Complainant’s Case: CA-00060628-006
The complainant submitted that there was no consultation by the new/current owner (transferee) in relation to the transfer. The complainant’s complaints were received by the WRC on 20/12/2023 and the complainant submitted that she commenced employment on 21/02/2022, her employment ended on 13/10/2023, her hourly rate was €18.50, her gross was €740 and she worked 40 hours.
The complainant gave evidence that she started with the previous owner as a head chef and got on well with the manager but she knew the business was not doing well and thought it might close and her holidays had accumulated. On 21/06/2023 the owner Mr A came in and introduced her to Mr B as the new owner who said everything was going to be different and better and that everything would be made in the kitchen. She told him they were not set up to make everything on site but he proceeded in that way. Her pay increased from €18.00 to €18.50 hourly. Mr B brought in his executive chef Mr C and he made changes that were not suitable and she was trying to organise food for the weekend and there was no traceability of the food. The new executive chef took full charge and she found the new executive chef difficult and he refused to assist and had her in tears. A new manager Ms D was brought in. The complainant was to take annual leave from 19/08/2023 and was due back on 06/09/2023 but came back on 05/09/2023 at the request of Ms D and when the complainant returned from holidays she found that Mr C had walked out as he had found the work difficult and had been rude to the staff and had a disagreement with Mr B.
The complainant said that things went downhill from there and that the orders for the kitchen were insufficient and there was no traceability and morale was low and it was a horrible working environment. Working hours were extended and the place was not cleaned and Ms D said she would speak to the evening chef. There were arguments and the complainant was told she had no right to demand a clean place and there were disagreements about such matters on 09/10/2023 and when she returned on Thursday 12/10/2023 and Friday 13/10/2023 there was a cool atmosphere and the complainant got a call to say that she was no longer needed and was told it was effective immediately. When the complainant asked about a disciplinary procedure she was told that she was the last one in and the complainant picked up her belongings and left and the letter she received referred to probationary period even though she had been there with the previous owner and there had been no break in service. The letter of termination outlined “I wish to inform you that your employment with Condi Hospitality has been terminated with immediate effect on 13.10.2023 during your probationary period Thank you for service and wish you continued success for the future.”.
The complainant replied on 24/10/2023 questioning this letter “I had questioned you on this and you replied " you are the common denominator and this is with immediate effect l will give you a good reference" I had not received any disciplinary warnings prior to this and you gave me no option to appeal it as you said your decision was final with immediate effect.”
It took her a while to look for work after she was dismissed as she was upset and shocked and that she found it hard to get work locally as she believed the owner had ruined her reputation. The complainant secured work elsewhere but she was only offered a part-time role where her earnings are €450 weekly compared to €740 weekly and hopes she will be offered full-time in the future. The complainant’s evidence was that she had been a head chef with the previous owners and worked shorter days and there was no consultation about the transfer of the business or engagement with any representative and she was not advised about the transfer of undertakings. There was no minimum notice paid to her for her service and she was owed annual leave about approximately 124 hours for her employment.
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Summary of Respondent’s Case: CA-00060628-006
The respondent did not attend the hearing. |
Findings and Conclusions: CA-00060628-006
The complainant submitted that there was no consultation by the new/current owner (transferee) in relation to the transfer. The respondent did not attend the hearing. I am satisfied that the respondent was on notice of the hearing and find their failure to attend unexplained. The complainant gave evidence that she commenced employment on 21/02/2022 and the business was transferred to the named responded in June 2022 and her employment ended on 13/10/2023 and her hourly was €18.50 and her gross was €740 and she worked 40 hours.
The law in this area is largely governed by the relevant provisions of Directive 77/187/EEC and Statutory Instrument Number 131/2003 –European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003 together with what has been regarded by the EAT as “diverse, varied unwieldly and at times contradictory case law” (TU31/2014, TU32/2014, TU33/2014, TU34/2014, TU35/2014). As outlined in CA-00060628-001 I determine that the TUPE Regulations can be applied to the unique and specific circumstances of the present case. The relevant regulation sets out: 8. (1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of - (a) the date or proposed date of the transfer; (b) the reasons for the transfer; (c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them and (d) any measures envisaged in relation to the employees. (2) The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out. (3) The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment. (4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement. (5) Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation. (6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following: (a) the date or proposed date of the transfer; (b) the reasons for the transfer; (c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee; and (d) any measures envisaged in relation to the employees. (7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.
As Regulation 8 (4) provides that the previous employer (Transferor) must, where any measures in relation to employees are envisaged, consult employee representatives, where reasonably practicable, not later than 30 days before the transfer is carried out. The complainant’s credible evidence was that there was no consultation and the respondent did not attend and taking note of the impact that such failures had on the complainant’s employment, I uphold the complaint and award the complainant €740. |
Summary of Complainant’s Case: CA-00060628-008
The complainant submitted that the new/current employer (Transferee) did not advise in relation to the transfer.
The complainant’s complaints were received by the WRC on 20/12/2023 and the complainant submitted that she commenced employment on 21/02/2022, her employment ended on 13/10/2023, her hourly rate was €18.50, her gross was €740 and she worked 40 hours.
The complainant gave evidence that she started with the previous owner as a head chef and got on well with the manager but she knew the business was not doing well and thought it might close and her holidays had accumulated. On 21/06/2023 the owner Mr A came in and introduced her to Mr B as the new owner who said everything was going to be different and better and that everything would be made in the kitchen. She told him they were not set up to make everything on site but he proceeded in that way. Her pay increased from €18.00 to €18.50 hourly. Mr B brought in his executive chef Mr C and he made changes that were not suitable and she was trying to organise food for the weekend and there was no traceability of the food. The new executive chef took full charge and she found the new executive chef difficult and he refused to assist and had her in tears. A new manager Ms D was brought in. The complainant was to take annual leave from 19/08/2023 and was due back on 06/09/2023 but came back on 05/09/2023 at the request of Ms D and when the complainant returned from holidays she found that Mr C had walked out as he had found the work difficult and had been rude to the staff and had a disagreement with Mr B.
The complainant said that things went downhill from there and that the orders for the kitchen were insufficient and there was no traceability and morale was low and it was a horrible working environment. Working hours were extended and the place was not cleaned and Ms D said she would speak to the evening chef. There were arguments and the complainant was told she had no right to demand a clean place and there were disagreements about such matters on 09/10/2023 and when she returned on Thursday 12/10/2023 and Friday 13/10/2023 there was a cool atmosphere and the complainant got a call to say that she was no longer needed and was told it was effective immediately. When the complainant asked about a disciplinary procedure she was told that she was the last one in and the complainant picked up her belongings and left and the letter she received referred to probationary period even though she had been there with the previous owner and there had been no break in service. The letter of termination outlined “I wish to inform you that your employment with Condi Hospitality has been terminated with immediate effect on 13.10.2023 during your probationary period Thank you for service and wish you continued success for the future.”.
The complainant replied on 24/10/2023 questioning this letter “I had questioned you on this and you replied " you are the common denominator and this is with immediate effect l will give you a good reference" I had not received any disciplinary warnings prior to this and you gave me no option to appeal it as you said your decision was final with immediate effect.”
It took her a while to look for work after she was dismissed as she was upset and shocked and that she found it hard to get work locally as she believed the owner had ruined her reputation. The complainant secured work elsewhere but she was only offered a part-time role where her earnings are €450 weekly compared to €740 weekly and hopes she will be offered full-time in the future. The complainant’s evidence was that she had been a head chef with the previous owners and worked shorter days and there was no consultation about the transfer of the business or engagement with any representative and she was not advised about the transfer of undertakings. There was no minimum notice paid to her for her service and she was owed annual leave about approximately 124 hours for her employment.
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Summary of Respondent’s Case: CA-00060628-008
The respondent did not attend the hearing. |
Findings and Conclusions: CA-00060628-008
The complainant submitted that the new/current employer (Transferee) did not advise in relation to the transfer. The respondent did not attend the hearing. I am satisfied that the respondent was on notice of the hearing and find their failure to attend unexplained. The complainant gave evidence that she commenced employment on 21/02/2022 and the business was transferred to the named responded in June 2022 and her employment ended on 13/10/2023 and her hourly was €18.50 and her gross was €740 and she worked 40 hours.
The law in this area is largely governed by the relevant provisions of Directive 77/187/EEC and Statutory Instrument Number 131/2003 –European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003 together with what has been regarded by the EAT as “diverse, varied unwieldly and at times contradictory case law” (TU31/2014, TU32/2014, TU33/2014, TU34/2014, TU35/2014). As outlined in CA-00060628-001 I determine that the TUPE Regulations can be applied to the unique and specific circumstances of the present case. The relevant regulation sets out: 8. (1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of - (a) the date or proposed date of the transfer; (b) the reasons for the transfer; (c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them and (d) any measures envisaged in relation to the employees. (2) The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out. (3) The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment. (4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement. (5) Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation. (6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following: (a) the date or proposed date of the transfer; (b) the reasons for the transfer; (c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee; and (d) any measures envisaged in relation to the employees. (7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.
As Regulation 8 (5) and (6) provide that where there are no employees' representatives, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them. However, if there is still no representative, each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment. The complainant’s credible evidence was that the respondent did not advise with regards the transfer and the respondent did not attend and taking note of the impact that such failures had on the complainant’s employment, I uphold the complaint and award the complainant €740.
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Summary of Complainant’s Case: CA-00060628-010
The complainant submitted that the new/current employer (Transferee) did not observe the terms and conditions transferred from my previous employer (Transferor).
The complainant’s complaints were received by the WRC on 20/12/2023 and the complainant submitted that she commenced employment on 21/02/2022, her employment ended on 13/10/2023, her hourly rate was €18.50, her gross was €740 and she worked 40 hours.
The complainant gave evidence that she started with the previous owner as a head chef and got on well with the manager but she knew the business was not doing well and thought it might close and her holidays had accumulated. On 21/06/2022 the owner Mr A came in and introduced her to Mr B as the new owner who said everything was going to be different and better and that everything would be made in the kitchen. She told him they were not set up to make everything on site but he proceeded in that way. Her pay increased from €18.00 to €18.50 hourly. Mr B brought in his executive chef Mr C and he made changes that were not suitable and she was trying to organise food for the weekend and there was no traceability of the food. The new executive chef took full charge and she found the new executive chef difficult and he refused to assist and had her in tears. A new manager Ms D was brought in. The complainant was to take annual leave from 19/08/2023 and was due back on 06/09/2023 but came back on 05/09/2023 at the request of Ms D and when the complainant returned from holidays she found that Mr C had walked out as he had found the work difficult and had been rude to the staff and had a disagreement with Mr B.
The complainant said that things went downhill from there and that the orders for the kitchen were insufficient and there was no traceability and morale was low and it was a horrible working environment. Working hours were extended and the place was not cleaned and Ms D said she would speak to the evening chef. There were arguments and the complainant was told she had no right to demand a clean place and there were disagreements about such matters on 09/10/2023 and when she returned on Thursday 12/10/2023 and Friday 13/10/2023 there was a cool atmosphere and the complainant got a call to say that she was no longer needed and was told it was effective immediately. When the complainant asked about a disciplinary procedure she was told that she was the last one in and the complainant picked up her belongings and left and the letter she received referred to probationary period even though she had been there with the previous owner and there had been no break in service. The letter of termination outlined “I wish to inform you that your employment with Condi Hospitality has been terminated with immediate effect on 13.10.2023 during your probationary period Thank you for service and wish you continued success for the future.”.
The complainant replied on 24/10/2023 questioning this letter “I had questioned you on this and you replied " you are the common denominator and this is with immediate effect l will give you a good reference" I had not received any disciplinary warnings prior to this and you gave me no option to appeal it as you said your decision was final with immediate effect.”
It took her a while to look for work after she was dismissed as she was upset and shocked and that she found it hard to get work locally as she believed the owner had ruined her reputation. The complainant secured work elsewhere but she was only offered a part-time role where her earnings are €450 weekly compared to €740 weekly and hopes she will be offered full-time in the future. The complainant’s evidence was that she had been a head chef with the previous owners and worked shorter days and there was no consultation about the transfer of the business or engagement with any representative and she was not advised about the transfer of undertakings. There was no minimum notice paid to her for her service and she was owed annual leave about approximately 124 hours for her employment.
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Summary of Respondent’s Case: CA-00060628-010
The respondent did not attend the hearing. |
Findings and Conclusions: CA-00060628-010
The complainant submitted that the new/current employer (Transferee) did not observe the terms and conditions transferred from my previous employer (Transferor)and that this impacted on her with the change in the environment, the change in her working hours and the change in job title of head chef which was not transferred. The respondent did not attend the hearing. I am satisfied that the respondent was on notice of the hearing and find their failure to attend unexplained. The complainant gave evidence that she commenced employment on 21/02/2022 and the business was transferred to the named responded in June 2022 and her employment ended on 13/10/2023 and her hourly was €18.50 and her gross was €740 and she worked 40 hours.
As outlined in CA-00060628-001 I determine that the TUPE Regulations can be applied to the unique and specific circumstances of the present case.
The law in this area is largely governed by the relevant provisions of Directive 77/187/EEC and Statutory Instrument Number 131/2003 –European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003 together with what has been regarded by the EAT as “diverse, varied unwieldly and at times contradictory case law” (TU31/2014, TU32/2014, TU33/2014, TU34/2014, TU35/2014).
The pertinent relevant sections in S.I. 131 are as follows: “Regulation 4/ (1) The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee. (2)Following a transfer, the transferee shall continue to observe the terms and conditions agreed under in any collective agreement on the same terms applicable to the transferor that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.” Regulation 8 8. (1) The transferor and transferee concerned in a transfer shall inform their respective employees' representatives affected by the transfer of - (a) the date or proposed date of the transfer; (b) the reasons for the transfer; (c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them and (d) any measures envisaged in relation to the employees. (2) The transferor shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out. (3) The transferee shall give the information in paragraph (1) to the employees’ representatives, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the employees are directly affected by the transfer as regards their conditions of work and employment. (4) Where the transferor or the transferee envisages any measures in relation to employees, he or she shall consult the representatives of the employees, where reasonably practicable, not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out, in relation to any such measures with a view to reaching an agreement. (5) Where there are no employees' representatives in the undertaking or business of the transferor or, as the case may be, in the undertaking or business of the transferee, the transferor or the transferee, as may be appropriate, shall put in place a procedure whereby the employees may choose from among their number a person or persons to represent them (including by means of an election) for the purposes of this Regulation. (6) Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following: (a) the date or proposed date of the transfer; (b) the reasons for the transfer; (c) the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee; and (d) any measures envisaged in relation to the employees. (7) The obligations specified in this Regulation shall apply irrespective of whether the decision resulting in the transfer is taken by the employer or an undertaking controlling the employer and the fact that the information concerned was not provided to the employer by the undertaking controlling the employer shall not release the employer from those obligations.
Regulation 4(2) of the European Communities provides that following a transfer of a business, the new employer (i.e. the Transferee) shall continue to observe the same terms and conditions agreed in any collective agreement on the same terms applicable to the previous employer (i.e. the Transferor) under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement. Having heard the credible evidence of the complainant and noting the respondent failed to observe the same terms and conditions including the complainant’s job title and working hours and I find that the complaint is well founded and uphold her complaint and award €750.
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Summary of Complainant’s Case: CA-00060628-011
The complainant submitted that she did not receive statutory minimum period of notice on the termination of my employment or payment in lieu thereof.
The complainant’s complaints were received by the WRC on 20/12/2023 and the complainant submitted that she commenced employment on 21/02/2022, her employment ended on 13/10/2023, her hourly rate was €18.50, her gross was €740 and she worked 40 hours.
The complainant gave evidence that she started with the previous owner as a head chef and got on well with the manager but she knew the business was not doing well and thought it might close and her holidays had accumulated. On 21/06/2022 the owner Mr A came in and introduced her to Mr B as the new owner who said everything was going to be different and better and that everything would be made in the kitchen. She told him they were not set up to make everything on site but he proceeded in that way. Her pay increased from €18.00 to €18.50 hourly. Mr B brought in his executive chef Mr C and he made changes that were not suitable and she was trying to organise food for the weekend and there was no traceability of the food. The new executive chef took full charge and she found the new executive chef difficult and he refused to assist and had her in tears. A new manager Ms D was brought in. The complainant was to take annual leave from 19/08/2023 and was due back on 06/09/2023 but came back on 05/09/2023 at the request of Ms D and when the complainant returned from holidays she found that Mr C had walked out as he had found the work difficult and had been rude to the staff and had a disagreement with Mr B.
The complainant said that things went downhill from there and that the orders for the kitchen were insufficient and there was no traceability and morale was low and it was a horrible working environment. Working hours were extended and the place was not cleaned and Ms D said she would speak to the evening chef. There were arguments and the complainant was told she had no right to demand a clean place and there were disagreements about such matters on 09/10/2023 and when she returned on Thursday 12/10/2023 and Friday 13/10/2023 there was a cool atmosphere and the complainant got a call to say that she was no longer needed and was told it was effective immediately. When the complainant asked about a disciplinary procedure she was told that she was the last one in and the complainant picked up her belongings and left and the letter she received referred to probationary period even though she had been there with the previous owner and there had been no break in service. The letter of termination outlined “I wish to inform you that your employment with Condi Hospitality has been terminated with immediate effect on 13.10.2023 during your probationary period Thank you for service and wish you continued success for the future.”.
The complainant replied on 24/10/2023 questioning this letter “I had questioned you on this and you replied " you are the common denominator and this is with immediate effect l will give you a good reference" I had not received any disciplinary warnings prior to this and you gave me no option to appeal it as you said your decision was final with immediate effect.”
It took her a while to look for work after she was dismissed as she was upset and shocked and that she found it hard to get work locally as she believed the owner had ruined her reputation. The complainant secured work elsewhere but she was only offered a part-time role where her earnings are €450 weekly compared to €740 weekly and hopes she will be offered full-time in the future. The complainant’s evidence was that she had been a head chef with the previous owners and worked shorter days and there was no consultation about the transfer of the business or engagement with any representative and she was not advised about the transfer of undertakings. There was no minimum notice paid to her for her service and she was owed annual leave about approximately 124 hours for her employment.
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Summary of Respondent’s Case: CA-00060628-011
The respondent did not attend the hearing. |
Findings and Conclusions: CA-00060628-011
The complainant submitted that she did not receive statutory minimum period of notice on the termination of my employment or payment in lieu thereof. The respondent did not attend the hearing. I am satisfied that the respondent was on notice of the hearing and find their failure to attend unexplained. The complainant gave evidence that she commenced employment on 21/02/2022 and the business was transferred to the named responded in June 2022 and her employment ended on 13/10/2023 and her hourly was €18.50 and her gross was €740 and she worked 40 hours.
Minimum period of notice as set out in the Act provides: 4.—(1) 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 thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—…. (a) if the employee has been in the continuous service of his employer for less than two years, one week,
I have found that the dismissal was unfair and I accept the undisputed evidence of the complainant and I find the Act was contravened and the complaint well founded and award the complainant €740.
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Summary of Complainant’s Case: CA-00060628-013
The complainant submitted that she did not receive her paid holiday/annual leave entitlement.
The complainant’s complaints were received by the WRC on 20/12/2023 and the complainant submitted that she commenced employment on 21/02/2022, her employment ended on 13/10/2023, her hourly rate was €18.50, her gross was €740 and she worked 40 hours.
The complainant gave evidence that she started with the previous owner as a head chef and got on well with the manager but she knew the business was not doing well and thought it might close and her holidays had accumulated. On 21/06/2022 the owner Mr A came in and introduced her to Mr B as the new owner who said everything was going to be different and better and that everything would be made in the kitchen. She told him they were not set up to make everything on site but he proceeded in that way. Her pay increased from €18.00 to €18.50 hourly. Mr B brought in his executive chef Mr C and he made changes that were not suitable and she was trying to organise food for the weekend and there was no traceability of the food. The new executive chef took full charge and she found the new executive chef difficult and he refused to assist and had her in tears. A new manager Ms D was brought in. The complainant was to take annual leave from 19/08/2023 and was due back on 06/09/2023 but came back on 05/09/2023 at the request of Ms D and when the complainant returned from holidays she found that Mr C had walked out as he had found the work difficult and had been rude to the staff and had a disagreement with Mr B.
The complainant said that things went downhill from there and that the orders for the kitchen were insufficient and there was no traceability and morale was low and it was a horrible working environment. Working hours were extended and the place was not cleaned and Ms D said she would speak to the evening chef. There were arguments and the complainant was told she had no right to demand a clean place and there were disagreements about such matters on 09/10/2023 and when she returned on Thursday 12/10/2023 and Friday 13/10/2023 there was a cool atmosphere and the complainant got a call to say that she was no longer needed and was told it was effective immediately. When the complainant asked about a disciplinary procedure she was told that she was the last one in and the complainant picked up her belongings and left and the letter she received referred to probationary period even though she had been there with the previous owner and there had been no break in service. The letter of termination outlined “I wish to inform you that your employment with Condi Hospitality has been terminated with immediate effect on 13.10.2023 during your probationary period Thank you for service and wish you continued success for the future.”.
The complainant replied on 24/10/2023 questioning this letter “I had questioned you on this and you replied " you are the common denominator and this is with immediate effect l will give you a good reference" I had not received any disciplinary warnings prior to this and you gave me no option to appeal it as you said your decision was final with immediate effect.”
It took her a while to look for work after she was dismissed as she was upset and shocked and that she found it hard to get work locally as she believed the owner had ruined her reputation. The complainant secured work elsewhere but she was only offered a part-time role where her earnings are €450 weekly compared to €740 weekly and hopes she will be offered full-time in the future. The complainant’s evidence was that she had been a head chef with the previous owners and worked shorter days and there was no consultation about the transfer of the business or engagement with any representative and she was not advised about the transfer of undertakings. There was no minimum notice paid to her for her service and she was owed annual leave about approximately 124 hours for her employment.
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Summary of Respondent’s Case: CA-00060628-013
The respondent did not attend the hearing. |
Findings and Conclusions: CA-00060628-013
The complainant’s evidence was that she was owed approximately 124 hours annual leave and the respondent did not attend.
Section 19 outlines Entitlement to Annual Leave:
19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to— (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.
I note that the complainant provided some wage slips outlining that where annual leave was paid and I find that the complainant is owed 124 hours for annual leave and I uphold her complaint and find it well founded and award her €2,300. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
CA-00060628-001 I find that the dismissal was unfair and award the complainant €6,000 which amounts to approximately 8 weeks’ pay. CA-00060628-002 I find that the complaint is well founded and award the complainant €1,500 . CA-00060628-004 I find the complaint well founded and award the complainant €740 CA-00060628-006 I find the complaint well founded and award the complainant €740 CA-00060628-008 I find the complaint well founded and award the complainant €740. CA-00060628-010 I find the complaint well founded and award the complainant €740. CA-00060628-011 I find the Act was contravened and the complaint well founded and award the complainant €740. CA-00060628-013 I find the complaint well founded and award her €2,300. |
Dated: 10th April 2025
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Transfer of under taking, respondent did not attend, unfair dismissal, minimum notice, procedures, consultation, |