DWT1434

“No case was presented. The claim falls for lack of prosecution”

The Complainant appealed against that Decision to this Court on the 29^thAugust 2013. The case came on for hearing before the Court on 12th November 2013. At the end of the hearing the parties were invited to submit further documentation. Those documents were received by the Court on the 18^thNovember 2013.

The Complaint

The Complainant alleged that the Respondent infringed Section 18 of the Act.

Complainant’s Case

The Complainant submits that she was required to make herself available to work any and all shifts assigned to her without a guarantee of work. She submits that in December/January 2012/2013 period she was not assigned work by the Respondent but was required at all times to make herself available for work.

The Complainant maintains that she was, on commencing employment, told by Dawn Anderson, her supervisor, that it was a condition of her employment that she keep herself available to work any hours offered to her. She states that she did so over the course of her employment. She states that she worked in various venues at the discretion of the Company. At one point in 2012 she was assigned to work in the Gaiety Theatre box-office. She says that following two complaints from customers of that Company, which she was advised did not result from any misbehaviour on her part, she was moved to another venue in the city centre. She says that she worked at that new venue in the new location without incident. She says that other than two hours work assigned to her in January 2013 she was offered no further work after that date.

She says that her employment was not terminated as the Company did not dismiss her or issue her with a P45 or other documentation terminating her employment. She says that she continued to make herself available for work to date but was offered none.

She says she wrote to the Dawn Anderson on 8th January 2013 querying why she had not been given any work in the previous month. She said in that email that she was employed on a zero hours contract and that she was entitled to be given work or to be compensated with a payment equal to 25% of the hours she has been required to be available for work. She says she received no answer to that letter and sent a reminder on 14th January 2013 raising the issue again. On 15th January 2013 Mr Stephen Kavanagh replied to her saying she was at nostage “requested to be available for work be it verbally or in the contract issued to you”.

She replied on 15th January 2013. In that letter she stated:-

“in the zero hour contract that I received from you … I have not been asked to be available for a certain number of hours, but from my initial meeting with Dawn, she outlined that being available for any hours was part of the job description and to this I agreed. It took from that point and still do take that to be verbal acknowledgement that I have been requested to be available for any hours”.

On 16th January Mr Kavanagh replied in the following terms:-

“ No staff member has ever been told that they need to be available “for any hours” and this was “ part of the job description”. All hours are included in the rota sent weekly. If you are requested to work hours it is included in that rota. If you are unavailable to work the requested shift a replacement is found. If you name is not included there is obligation for you to remain available for work. He went on to say “ as far as we are concerned this matter is now closed.”

The Complainant replied in the following terms:-

“I am quite unhappy about this. I was told by Dawn that I was being hired to be available any time and that was what she needed. She said I need someone whom I can just call on to come in at anytime. So I was in fact told to be available at anytime and it was part of the job description explained to me.

My name has not been on the rota for 4 weeks now, so by your own admission“if your name is not included there is obligation for you to remain available for work”then thismeans I have been available for work and I have been obliged to be available for work but received no hours or compensation for being available.

I do not believe this matter to be closed.

There the correspondence ended. A complaint was referred to the Rights Commissioner under the Act.

Findings of the Court

The respective position of each side is set out in the correspondence. The Complainant attended the hearing of the matter and repeated the content of the correspondence. The Respondent attended the Court.

Ms Dawn Anderson was not in Court to give evidence on the matter. Mr Stephen Kavanagh was in Court and repeated the position set out in the correspondence.

It is common case that the Complainant’s contract of employment did not require her to make herself available to work anytime she was required by the Company. The Complainant states however that the manner in which the contract was administered was such that she was so required. She expressly stated that she was so advised by Ms Dawn Anderson. She set out this view in correspondence to the Company and attributed the instructions she received to Ms Anderson. Indeed she wrote to Ms Anderson to this effect on 8^thand 14^thJanuary 2013. Ms Anderson did not respond to those letters nor did she attend Court or otherwise contradict the Complainant’s assertions.

While Mr Kavanagh contradicts what the Complainant says he was not a party to the discussions that took place between her and Ms Anderson. Accordingly he is not in a position to give evidence to the Court that would contradict her statements.

On the basis of the uncontroverted evidence of the Complainant therefore the Court finds that the Complainant’s contract of employment was administered as though she was required to be available for work at all times.

Section 18 of the Act states:-

• • 
    (1) This Section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—
    • • (a) a certain number of hours (“the contract hours”), or

        (b) as and when the employer requires him or her to do so, or

        (c) both a certain number of hours and otherwise as and when the employer requires him or her to do so,

      
      
      and the said requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to the said week (whether or not the number of those occasions or the circumstances otherwise touching the said engagement of the employee are such as to give rise to a reasonable expectation on his or her part that he or she would be required by the employer to do work for the employer in the said week).
    
    (2) If an employer does not require an employee to whom this section applies to work for the employer in a week referred to in subsection (1) —
    • • (a) in a case falling within paragraph (a) of that subsection, at least 25 per cent of the contract hours, or

        (b) in a case falling within paragraph (b) or (c) of that subsection where work of the type which the employee is required to make himself or herself available to do has been done for the employer in that week, at least 25 per cent of the hours for which such work has been done in that week,

  then the employee shall, subject to the provisions of this section, be entitled—
  • • (i) in case the employee has not been required to work for the employer at all in that week, to be paid by the employer the pay he or she would have received if he or she had worked for the employer in that week whichever of the following is less, namely

      (I) the percentage of hours referred to in paragraph (a) or (b) , as the case may be, or

      (II) 15 hours,

    (3) Subsection (2) shall not apply—

    • (a) if the fact that the employee concerned was not required to work in the week in question the percentage of hours referred to in paragraph (a) or (b) of that subsection , as the case may be—
      • (i) constituted a lay-off or a case of the employee being kept on short-timefor that week, or

        (ii) was due to exceptional circumstances or an emergency (including an accident or the imminent risk of an accident), the consequences of which could not have been avoided despite the exercise of all due care, or otherwise to the occurrence of unusual and unforeseeable circumstances beyond the employer's control, or

      (b) if the employee concerned would not have been available, due to illness or for any other reason, to work for the employer in that week the said percentage of hours.
    (4) The reference in subsection (2)(b) to the hours for which work of the type referred to in that provision has been done in the week concerned shall be construed as a reference to the number of hours of such work done in that week by another employee of the employer concerned or, in case that employer has required 2 or more employees to do such work for him or her in that week and the number of hours of such work done by each of them in that week is not identical, whichever number of hours of such work done by one of those employees in that week is the greatest.

    (5) References in this section to an employee being required to make himself or herself available to do work for the employer shall not be construed as including references to the employee being required to be on call, that is to say to make himself or herself available to deal with any emergencies or other events or occurrences which may or may not occur.

    (6) Nothing in this section shall affect the operation of a contract of employment that entitles the employee to be paid wages by the employer by reason, alone, of the employee making himself or herself available to do, at thetimes and place concerned, the work concerned.

Accordingly, the Court finds that the Complainant is entitled to in accordance with Section 18 (2)(b) of the Act toat least 25 per cent of the hours for which such work has been done in that week.

As the Complainant was not required to work in the relevant weeks the Court is required to apply the provisions of Section 18(4) of the Act. It states: -

• (4) The reference in Subsection (2)(b) to the hours for which work of the type referred to in that provision has been done in the week concerned shall be construed as a reference to the number of hours of such work done in that week by another employee of the employer concerned or, in case that employer has required 2 or more employees to do such work for him or her in that week and the number of hours of such work done by each of them in that week is not identical, whichever number of hours of such work done by one of those employees in that week is the greatest.

In all the circumstances therefore the Court finds that the Respondent has infringed Section 18 of the Act in respect of the Complainant.

Section 27 (3) of the Act states:-

• (a) declare that the complaint was or, as the case may be, was not well founded,

  (b) require the employer to comply with the relevant provision,

  (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment,

The Court so determines.

The Court so decides.

Signed on behalf of the Labour Court



Brendan Hayes
10th April, 2014______________________
CO'RDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.