Complainant

Respondent

Parties

Aoibheann  McCaffrey

Twoak Limited trading as The Dunes

Representatives

Self-Represented

Mr. Peter Dunlea, Peninsula Business Services

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00068925-001

30/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00068925-002

30/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00068925-004

30/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00068925-005

30/01/2025

The Complainant commenced employment with the Respondent on 31st May 2024. At all relevant times, the Complainant was engaged as a “bartender”. The Complainant was in receipt of an hourly rate of pay of €12.80 and worked an average of 20 hours per week, resulting in an average weekly payment of €256. The contract of employment was terminated on 4th January 2025, with the nature of the termination forming part of the dispute between the parties.

On 30th January 2025, the Complainant referred the present complaints to the Commission. Herein, the Complainant alleged that the Respondent did not provide her with a contract of employment, did not allow statutory breaks, did not give adequate notice of shift patterns and did not pay statutory notice on the termination of her employment. By response, the Respondent conceded the complaints under the Organisaiton of Working Time Act. However, they submitted that the Complainant received a contract of employment at or near the commencement of her employment and that she was not entitled to a payment for statutory notice in circumstances whereby she resigned her employment.

A hearing in relation to this matter was convened for, and finalised on, 20th May 2025. This hearing was held in person at the Commission’s Sligo offices.

The Complainant gave evidence in support of her complaints, while the Managing Director of the Respondent gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

No issues as to my jurisdiction to hear the complaints were raised at any stage of the proceedings. 

In evidence, the Complainant stated that she never received a contract of employment from the Respondent. In answer to the Respondent’s position in this regard, she stated that she never received, and never had sight of, the statement of terms produced by the Respondent.

The Complainant states that she was engaged as a bartender with the Respondent. She stated that she would frequently be working on her own, and would not have an opportunity to take breaks within the statutory timeframe. She further submitted that she frequently received notification of forthcoming shifts by text message the evening before, or even hours before the same was due to commence.

The Complainant submitted that following a period of certified sick leave, and following a dispute with the Respondent regarding her hours over the Christmas period, the Complainant did not hear from the Respondent regarding her shifts for the forthcoming week. In order to resolve this issue, the Complainant sent the Respondent a text message seeking to “clarify the work situation and whether or not you are still employing me”. By response, the Respondent stated that, “I will not be able to continue your hours in the new year”.  In evidence the Complainant stated that, in the context, these constitute clear words of dismissal. The Complainant submitted that the nature of this dismissal was clearly unfair towards her, and that she was not provided with statutory notice, or notice of any description.

By submission, the Respondent denied that the Complainant had not been issued with a statement of terms of employment. In this regard, a witness for the Respondent stated that she prepared and signed a statement of terms and left the same for the Complainant to sign. The statement in question was opened as part of this evidence.

Regarding the complaints under the Organisation of Working Time Act, the Respondent stated that while the Complainant did work on her own on occasion, the manager of the premises would normally provider cover for her shift. Notwithstanding the same, the Respondent accepted that they did not retain any documentation of these breaks, nor could they demonstrate that the Complainant received all of her statutory breaks within the cognisable period. In these circumstances, the Respondent accepted liability for this particular complaint. The Respondent likewise accepted that they occasionally provided less than the required notice of amendment to the Complainant’s shift pattern, and this complaint was also accepted.

Regarding the notice complaint, the Respondent submitted that the Complainant was unavailable for scheduled hours over the Christmas period for a number of reasons. Following the return to the normal shift pattern in the new year, the Complainant requested an amendment to her normal hours. Following an enquiry in relation to the same, the Respondent determined that these were nor available, in evidence a witness for the Respondent stated that this is what the text message opened by the Complainant referred to, with the parties having a further discussion in relation to the same thereafter. As a consequence of the foregoing, the Respondent submitted that the Complainant resigned her employment, and in these circumstances, she was not entitled to a payment of statutory notice.  

CA-00068925-001 – Complaint under the Terms of Employment (Information) Act

Regarding this complaint, the Complainant alleges that she did not receive a statement of terms of employment in the course of her employment. In evidence, the Respondent submitted that a statement of terms was prepared for the Complainant and was left for her review and signature in the back office of the premises. In evidence, the Complainant stated that she never had sight of the document in question.

In this regard, Section 3(1) of the Act provides that an employer must,

“…give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment…”

In consideration of the above, it is incumbent on an employer not only to prepare a statement of terms, but also to ensure that an employee receives the same. While the evidence of the Respondent was that a statement of terms was prepared, no evidence of the same being communicated to the Complainant was provided, and the Complainant herself stated that she never received the same.

In consideration of the foregoing, the I find that the Respondent is in breach of the provision in question, and the complaint is duly deemed to be well-founded.

CA-00068925-002 – Complaint under the Organisation of Working Time Act

By submission, the Respondent accepted that they could not provide any form of proof regarding the Complainant’s daily working time, or their attempts to ensure that the Complainant received her statutory breaks. In these circumstances, the Respondent conceded liability for the complaint and the same is deemed to be well founded.

CA-00068925-004 – Complaint under the Minimum Notice and Terms of Employment Act

Regarding this particular complaint, the Complainant alleged that she was dismissed by way of text message following the busy Christmas season. She submitted that she was not provided with any notice of this dismissal in contravention of the Act.  By response, the Respondent submitted that the test message in question referred to a request by the Complainant to amend her hours, and that they did not dismiss the Complainant at all. In this respect, they submitted that the Complainant’s contract of employment terminated by reason of resignation and that she was not entitled to a payment of statutory notice on foot of the same.

Having regard to the foregoing, it is apparent that a conflict of evidence exists as to the fact of the Complainant’s dismissal by the Respondent.

In the matter of In Devaney v DNT Distribution Company Ltd, UD 412/1993, the Employment Appeals Tribunal held that,

“... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v. Joseph McManus UDD 1753 the Labour Court held as follows,

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined.”

In evidence, the parties referenced series of text message exchanged at start of January 2025. In these, the Complainant clearly requests that the Respondent “clarify the work situation” and clarify as to “whether or not you are still employing me”. These enquires clearly relate to the Complainant’s employment as a whole and any response thereafter must be construed as relating to the same.

By response, the Respondent stated that, “I will not be able to continue your hours in the new year”.  While this statement, of itself, is somewhat ambiguous, given the clear nature of the previous enquiries, the natural reading of the same is that the Respondent is unable to provide work for the Complainant, and that her employment was terminated. In these circumstances, I find that the Complainant was dismissed, and in circumstances whereby she was not provided with any notice of the same, I find that the complaint is well-founded.

CA-00068925-005 – Complaint under the Organisation of Working Time Act

By submission, the Respondent conceded that they did not provide adequate notice of the Complainant’s shift pattern, and this complaint is deemed to be well founded.

CA-00068925-001 – Complaint under the Terms of Employment (Information) Act

I find that the complaint is well-founded and the Complainant’s application succeeds.

Regarding redress, I award the Complainant the sum of €768.

CA-00068925-002 – Complaint under the Organisation of Working Time Act

I find that the complaint is well-founded and the Complainant’s application succeeds.

Regarding redress, I award the Complainant the sum of €300 in compensation for the breach of the Act. 

CA-00068925-004 – Complaint under the Minimum Notice and Terms of Employment Act

I find that the complaint is well-founded and the Complainant’s application succeeds.

Regarding redress, I award the Complainant the sum of €256.

CA-00068925-005 – Complaint under the Organisation of Working Time Act

I find that the complaint is well-founded and the Complainant’s application succeeds.

Regarding redress, I award the Complainant the sum of €300 in compensation for the breach of the Act.

Breaks, Notice of Shift, Fact of Dismissal