ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00060998
Parties:
| Complainant | Respondent |
Parties | David Mc Court | Veggie Island |
Representatives | Self-represented | Peninsula Business Services Ireland |
Complaint:
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-00073770-001 | 25/07/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00073770-002 | 25/07/2025 |
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-00073770-007 | 25/07/2025 |
Date of Adjudication Hearing: 17/12/2025
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following 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 and to present any evidence relevant to the complaints. The hearing was held in the Hearing Rooms of the Workplace Relations Commission (WRC), Carlow. Submissions were made and exchanged between the parties in advance of the hearing. The complainant, Mr. Mc Court, attended the hearing and gave evidence under affirmation. His partner attended the hearing as support. For the respondent, Mr. Bavishi attended the hearing and gave evidence under affirmation. His partner attended who also works in the business. The respondent representative raised a preliminary issue that some of the complaints were out of time.
Background:
The complainant was employed by the respondent as a Chef when the business was taken over in or around January 2025. The complainant had worked under the former owners since November 2017. His gross weekly pay is €306. He claims that he was not notified of a change to his terms of employment, that he was penalised for raising his entitlement to rest breaks, and that the transfer of undertakings regulations had been breached. The respondent denies the complaints in full. |
Summary of Complainant’s Case:
Summary of Complainant’s Evidence Mr Mc Court gave testimony that he was unaware of a six-month timeframe to submit complaints to the WRC. He signed a contract on 6th January 2025 with his new employer. Although he had some issues with the terms of the contract, he did not raise these at the time as he wanted to work these through with his new employer. He wanted to support the business and make the transition as easy as possible. He said he typically worked 26-30 hours per week with the former owner. He wanted this written into the new contract as he was seeking a loan and needed proof of regular income. He questioned whether he was getting his statutory breaks and he raised this verbally with his new employer. He said he had more security of hours with his former employer and knew his normal finishing time. He was requested to use an online HR Attendance Application to record his hours and breaks. When it was not busy, there were weeks when he worked less than 30 hours. There was no clarity on who his manager was as he was also supervised by Mr Bavishi’s wife. Under cross-examination by the respondent representative, the complainant was asked whether he had set hours and specific tasks in his previous contract. He replied there was no set hours in the contract although the norm was for 26-30 hours, and his tasks were more defined. It was put to him that the online HR Attendance Application ensured his employer adhered to their legal obligations on attendance/breaks and a work phone was provided for this. He replied that he was not comfortable with this method of recording attendance. It was put to him that it was convenient for him to leave early when the business was quiet and the confirmation of regular hours related to the loan application. He replied that he understood that at quiet times he was not required, and he was prepared to renegotiate terms, which never happened. |
Summary of Respondent’s Case:
Preliminary Issue The respondent representative submitted that the complainant signed a new contract on 6th January 2025 and complaints pertaining to this contract were out of time. As the complainant’s excuse of ‘reasonable cause’ under the Act was unawareness of the legal timeframe, it was submitted that this was an insufficient reason to extend time. The case of Galway & Roscommon ETB v. Kenny UDD1624 was relied upon. Summary of Mr Bavishi’s Evidence Mr. Bavishi gave testimony that he started in the business on 7th January 2025. He said he was unaware of the exact hours the complainant previously worked. The previous business was not trading well, and he had new ideas and improvements to make. He facilitated the inclusion of 30 hours in the contract to assist with the loan form. This was on the understanding that hours may reduce due to efficiencies needed in the business. He said the 30 hours was not sustainable for the business and may have reduced in or around March/April 2025. There were also weeks when the complainant was not available. He said there was a verbal agreement that the hours may not be available. |
Findings and Conclusions:
Preliminary Issue The test for reasonable cause to extend time is well established. As per Galway & Roscommon ETB v. Kenny UDD1624, ignorance of the law is not sufficient to extend time. While ignorance on the part of an employee of his or her statutory rights may explain a delay in submitting his or her appeal under the Act it cannot excuse a delay. In Minister for Finance v CPSU and Ors [2007] 18 ELR 36 the High Court held that ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing a statutory time limit. For the reason outlined, there are insufficient grounds to extend the time beyond the six months. The cognisable period for the complaints is from 26th January 2025 up to 25th July 2025, when the complaints were received by the WRC. The hearing proceeded on the substantive complaints having regard to the cognisable period under which I had jurisdiction. Findings CA-00073770-001 Terms of Employment (Information) Act 1994 Section 5 of the Act puts the onus on the employer to inform an employee in writing of changes to the terms of employment. In testimony, it was confirmed that the employee worked 26-30 hours with the former employer. Neither the formal contract nor the new contract (6th January 2025) stated the weekly hours to be worked. From January 2025 onwards, the issue of hours arose when the complainant sought fixed hours to be included in the contract due to the loan application. The respondent facilitated this. The respondent gave testimony of a verbal agreement that the hours may reduce, and this occurred in or around March/April 2025. The testimony by both parties confirmed an awareness of constraints on the respondent to provide the hours and the complainant’s willingness to renegotiate. A reduction in hours was not confirmed in writing. The respondent witness gave testimony that changes were required to the business. As the respondent had facilitated the complainant by including fixed hours in the contract, equally, if hours were being reduced, there was an obligation under the Act to inform the complainant, in writing. As this did not occur, there was a breach of the Act, albeit technical in nature. For completeness, I do not consider the use of the online HR Attendance Application to be a change in terms of employment, particularly as recording of attendance is a legal requirement on the employer.
As per Section 7 of the Act, there is provision to pay the employee compensation of such amount as the adjudicator considers just and equitable having regard to all the circumstances, not exceeding 4 weeks’ remuneration.
I consider the breach to be minor even though the complainant was denied a statutory right. The complainant presented no evidence that the lack of formal notice on his hours caused him much hardship. For the reasons outlined, I order the employer pay to the employee the equivalent of one weeks’ pay which is €306. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.
CA-00073770-002 Penalisation under Organisation of Working Time Act 1997 The complainant submitted on the complaint form and in testimony that due to him raising rest breaks with his new employer that he was penalised. The complainant did not outline in testimony any details of penalisation suffered having verbally raised the issue of rest breaks. As the complainant has not substantiated or provided details on this complaint, I decide that the complaint is not well founded. CA-00073770-007 Transfer of Undertakings Regulations 2023 Under these regulations, a new employer must respect the existing terms of employment unless or until there are agreed changes. The complaint form submitted to the WRC describes alleged breaches of the regulations by the introduction or omission of terms in the contract signed on 6th January 2025. The complainant signed the new contract and did not raise any issues at that time. At the hearing it was confirmed that the new contract mirrored the original contract and did not refer to fixed hours. When fixed hours were included, it was by agreement between the respondent and complainant. For completeness, I do not consider the requirement to use the online HR Attendance Application to be a breach of the Regulations, as the recording of attendance is a legal requirement on the employer. For the reasons outlined, I find that there has been no breach of the Regulations. I decide this complaint is not well founded. |
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.
CA-00073770-001 Terms of Employment (Information) Act 1994 I order the employer pay to the employee the equivalent of one weeks’ pay which is €306. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration. CA-00073770-002 Penalisation under Organisation of Working Time Act 1997 I decide that this complaint is not well founded. CA-00073770-007 Transfer of Undertakings Regulations 2023 I decide that this complaint is not well founded. |
Dated: 12th of January 2026.
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Key Words:
Terms of Employment |