ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00051043

Parties:

	Complainant	Respondent
Parties	Bernardo Daniel Amador Mata	Hi - Veg Limited t/a Umi Falafel

	Complainant	Respondent
Anonymised Parties	{text}	{text}

Representatives

Paul Hegarty, BL, instructed by Anthony Collier Collier Law

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062510-001	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062510-002	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062510-003	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00062510-004	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00062510-005	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00062510-006	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00062510-007	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00062510-008	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00062510-009	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062510-010	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00062510-011	29/03/2024

Date of Adjudication Hearing: 13/12/2024

Workplace Relations Commission Adjudication Officer: Patricia Owens

Procedure:

On 29 March 2024 the complainant referred eleven complaints to the Workplace Relations Commission as set out above.

In accordance with section 41 of the Workplace Relations Act, 2015 and following referral of the complaints to me by the Director General, a hearing was scheduled for 13 December 2024 to afford the parties an opportunity to be heard by me and to present to me any evidence they deemed relevant.

In deference to the Supreme Court ruling, Zalewski V Ireland and the WRC [2021] IESC 24, the parties were informed in advance that the hearing would normally be in public, testimony under oath or affirmation would be required and full cross examination of all witnesses would be provided for. The complainant attended and was represented by Mr. Paul Hegarty BL, instructed by Mr. Anthony Collier Solicitor.

There was no appearance by or on behalf of the respondent at the hearing and no contact was made to explain the absence.

The required affirmation/oath was administered to the complainant prior to his testimony. The legal perils of committing perjury were explained to the complainant.

Preliminary Issue:

The complainant confirmed that there was an issue in relation to the title and identity of the Respondent.

The Complainant further submitted that at the commencement of the complainant’s employment, the company was entitled Hi-Veg Limited and that the company subsequently changed to Soleshine Limited in and around 3 October 2022. The Complainant submitted that the company changed the title to Roselane Greene.

The Complaiant referenced the EC Council Directive 2001/23/EC on the Transfer of Undertakings and submitted that a principle of the legislation is to protect the rights of employees. He noted that the regulation sets out that the transferor and transferee are obliged to give specific information regarding the transfer to their respective employees or their representatives, affected by the transfer and to consult with these where the transferor or transferee envisages any measures in relation to the employees.

The Complainant submitted that the respondent is an entity which falls within the scope of the Regulation and noted that the Complainant was not appraised of the changes to the Respondent Company’s identity. He outlined that, to his knowledge, the economic entity retained its identity but that there may have been changes to the complainant employer. The Complainant submitted that the Regulations were included to err on the side of caution by including the Complainants rights, and to further assist in understanding the difficulties in establishing the identity of the Respondent.

The Complainant noted that complaints had also been lodged against two other companies and outlined the details of those companies, which were the subject of separate complaints to the WRC.

The complainant outlined that there could be no doubt about who was the employer of the complainant up to the date of his dismissal and at no point was that original contract terminated or varied. The complainant provided copies of a contract dated 3rd October 2023 between the complainant and the company he believed to be the correct employer. That contract was signed by both parties.

The complainant submitted that he was employed by Hi Veg from 12 October 2021 to 2 October 2022 and that the company was changed to Soleshine at that time and that ultimately a contract was offered in October 2023 which was signed by both parties. The complainant outlined that the same owner was in place throughout all of his employment and indicated that the employment was unbroken and therefore was continuous with the employer up to the date of termination of employment when the employer was Soleshine Limited.

The complainant also noted that the restaurant where he worked was named as Umi Falafel, however he noted that this also had the same owner, was at the same site, had the same address and that he had the same duties and the same role throughout his employment and that the only Contract of Employment he ever had was with Soleshine. He noted that Umi Falafel had six different branches but that he had always worked at Umi Falafel at Dame Street. The Complainant also provided copies of information in relation to all 3 companies from the website of CRO, together with pay records.

Background:

The Complainant was employed by the Respondent from 12 October 2021 as a Deli Chef. The Complainant alleged that he was summarily dismissed on 26 September 2023 and that he never received an explanation for his dismissal. He contended that he was not given compensation for working on Sundays, that he did not receive his paid holiday entitlement, that he did not receive appropriate payment in lieu of notice, that he was not notified of changes to his terms of employment, that he did not receive his statutory minimum period of notice on the termination of his employment, that he did not receive his public holiday entitlements and that he did not receive a statement in writing of his terms of employment.

The Respondent is a provider of food services. There was no appearance by or on behalf of the Respondent at the hearing and the Respondent did not provide any written response to the complaint.

Summary of Complainant’s Case:

Preliminary Issue:

The complainant submitted that there was an issue in relation to the title and identity of the respondent and that the defendant is a company providing accommodation and food services. The complainant submitted that at the commencement of his employment, the company was entitled Hi-Veg Limited. The name subsequently changed to Soleshine Limited in and around the 3rd October 2022 and the company changed the title to Roselane Green.

The complainant submitted that the EC Council Directive 2001-23/EC on the transfer of undertakings refers and that the directive was implemented in this jurisdiction as the European Communities (Protection of Employees on transfer of undertakings) Regulations 2003 (SI-131 2003), (herein after “the regulations”).

The complainant submitted that a principle of the legislation is to protect the rights of employees and regulations set out that the transferor and the transferee are obliged to give specified information regarding the transfer to the respective employees or their representatives affected by the transfer and to consult with these where the transferor or the transferee envisages any measures in relation to the employees.

The complainant submitted that the respondent is an entity which may fall within the scope of the regulation. The complainant further submitted that he was not appraised of the changes to the respondent company’s identity and that to his knowledge, the economic entity retained its identity and that there may have been a change to the complainant employer. The complainant noted that regulations are included to err on the side of caution by including the complainant’s rights and to further assist the court in understanding the difficulties in establishing the identity of the respondent.

The complainant relied on Mythen V The Employment Appeals Tribunal [1990] E.L.R.1 to fix the transferor or transferee with liability for this claim set out hereunder in the event that they are determined to be well founded. The complainant also relied on Landsorganisaitionen 1 Danmark v Ny Molle Kro, Case 277/86, in relation to the interpretation of 77/187, where the intention of the directive was defined, stating that it is “to provide for the protection for employees in the event of a change in employer, and in particular, to ensure that their rights are safeguarded”.

The complainant noted that he had submitted additional complaint forms to the Workplace Relations against Soleshine Limited and noted that he had also submitted a complaint against Roselane Green at a later date.

The complainant further relied upon the judgement in County Louth Vocational Educational Committee and the Equality Tribunal [2009] IEHC 370, wherein the following was stated:

“The respondent contended that the form EE1 was only intended to set out the generality of the complaint and its basic details. It submitted that to limit a complainant to the matters set out in the referral form, would be to unjustly and unlawfully fetter the manner in which the Oireachtas intended the investigation to proceed as set out in the Act. The complainant form should not, it argued, be converted into a rigid pleading which could not be developed or amended. In this regard, Counsel for the respondent drew an analogy with the High Court writ, which clearly can be amended in appropriate circumstances. It would be extraordinary, he contended, that in a tribunal setting, a claim could never be expanded out, especially given that the form itself requires “brief details” of the complaint and where it is conceivable that a form may be filed out without legal advice”.

The complainant submitted that in accordance with the above judgement, that he has made out “the general nature of the complaints” in respect of the following acts in the original complaint form submitted on 12 October 2023:

(a) Payment of Wages Act 1991 in respect of holiday premium, paid holiday/annual leave entitlements, notice under this contract under the minimum notice and Terms of Employment Act 1973 and non-payment of wages, and therefore seeks to expand his claim to include the above claim under the aforementioned legislation in circumstances where the general nature of these complaints are expressly outlined and included in the complaint form, which the complainant submitted on the 12th October 2023.

Substantive Issues

CA-00062510-001:

In his complaint form, the complainant submitted that he did not receive compensation for working on Sundays and indicated that further particulars would be furnished in due course.

In his submission the complainant drew attention to section 14 of the Organisation of Working Time Act 1977, which set out the statutory rights for employees in respect of Sunday working and submitted that an employee who is required to work on a Sunday, and his/her having to work on that day has not been taken account of in the determination of pay, shall be compensated as follows:

· By the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

· By otherwise increasing the employee's rate of pay by a reasonable amount having regard to all the circumstances, or

· By granting the employee reasonable paid time off from work having regard to all the circumstances, or

· By a combination of two or more of the above means

The complainant referred to the general principles of compensatory arrangements for Sunday working in the retail trade and submitted that in accordance with the provisions of the Organisation of Working Time Act 1997, a premium payment will apply to Sunday working. The complainant noted section 14 of the act specified the means by which the premium should also be granted and noted that the nature and value of this premium rate should be negotiated and agreed between the employer and the Trade Union (S) representing employees or between the employer and the employee so reflected by the Sunday trading in circumstances where employees are not unionised.

The complainant filed a submission that existing employees should have the option to volunteer to opt into working patterns which include Sundays on a rota basis and form part of a regular working week (i.e. being required to work no more than five days out of seven). The complainant noted that newly recruited employees may be contracted to work Sundays as part of a regular rostered working pattern.

The complainant further noted that employees who have a minimum of two years service on a Sunday working contract, should have the opportunity to seek to opt of Sunday working for urgent family or personal reason, giving adequate notice to the employer. The complainant further noted that meal breaks on Sundays should be standardised in line with the other working days of the week and that all employees should have the opportunity of volunteering to work on the peak Sunday trading days prior to Christmas in addition to their normal working week. In these circumstances, length of service would not be an overriding criterion for the selection for Sunday working.

CA-00062510-002:

In his complaint form, the complainant submitted that he did not receive paid holidays and annual leave entitlements and indicated that he would furnish further particulars in due course.

In his submission the complainant submitted that he did not receive paid holiday or annual leave entitlements.

The complainant submitted that the amount of annual leave an employee is entitled to is the greater of:

(a) Four 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

CA-00062510-003:

In his complaint form, the complainant submitted that he was not paid for holidays and indicated that he would furnish further particulars in due course.

In his submission the complainant submitted that he was not paid for holidays, that the only contract provided to him was dated 03/10/2022 between him and Soleshine Limited of 31 Dame Street, Dublin 2. He further submitted that his contract provided to him at the commencement of his employment outlined at section 8, leave for holidays and other reasons.

CA-00062510-004:

In his complaint form, the complainant contended that he was not provided with notice upon termination of his employment and indicated that he would furnish further particulars in due course.

In his submission the complainant confirmed that he did not receive proper notice on termination of his employment and noted that his contract stated at section 2.1 “your employment is subject to a probation period of six months. If at the end of that time we are satisfied with the quality of your work, we shall tell you if your employment is permanent”.

CA-00062510-005:

In his complaint form, the complainant submitted that he was not notified of a change in his terms and conditions of employment and indicated that further particulars would be made available in due course.

In his submission the complainant contended that he was notified of a change in his terms and conditions of employment, and he noted that the Terms of Employment Information Act 1994 as amended, provides, inter alia, for the issue to employees of certain statements of terms of employment and the complainant noted that these statements include a five day statement and a written statement of terms of employment.

CA-00062510-006:

In his complaint form, the complainant contended that he did not receive his minimum notice and indicated that further particulars would be furnished in due course.

In his submission the complainant confirmed that he did not receive his statutory minimum period of notice and termination of his employment or payment thereof. He further confirmed that he did not receive notice of termination.

CA-00062510-007:

In his complaint form, the complainant contended that he did not receive notice of termination and did not receive all of his rights and indicated that he would furnish further particulars in due course.

In his submission the complainant confirmed that he did not receive all of his rights during the period of notice, and he confirmed that he did not receive notice of his termination and did not receive all of his rights.

CA-00062510-008:

In his submission the complainant confirmed that he did not receive notice of termination on the contract of employment from his employer.

CA-00062510-009:

At hearing the complainant confirmed that he was unfairly dismissed.

CA-00062510-010:

In his complaint form, the complainant contended that he did not receive public holiday payments and that he would furnish further particulars in due course.

In his submission the complainant confirmed that he did not receive his public holiday entitlements and that he was due payments in respect of St. Patrick’s Day 2024, Easter Monday, the first Monday in May, June, August and October.

CA-00062510-011:

In his complaint form, the complainant contended that he was not provided with terms of conditions of employment, and he indicated that further particulars would be furnished in due course.

In his submission, the complainant confirmed that he was not provided with the terms and conditions of employment, save for his initial contract provided to him at the commencement of his employment.

Summary of Respondent’s Case:

There was no appearance by or on behalf of the respondent at the hearing and the respondent did not provide any response to the complaints. However, the notice of the hearing issued by the WRC to the above named Respondent was returned by An Post due to insufficient details of address.

Findings and Conclusions:

Based on the CRO documentation provided, together with payslips relating to the Complainant and the relevant dates of employment provided by the Complainant it is clear that the above Respondent was not the employer of the Complainant at the time of the termination of his employment. Therefore, I must conclude that these complaints are not well founded.

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.

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.