ADJUDICATION OFFICER DECISION

Adjudication decision reference: ADJ-00000243

Complaints for resolution:

Date of Adjudication Hearing: 04/03/2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 20^th October 2015, the complainant referred complaints to the Workplace Relations Commission, seeking redress under the Organisation of Working Time Act, the Payment of Wages Act and the Unfair Dismissals Act. The complaints were scheduled for adjudication on the 4^th March 2016.

In advance of the adjudication, a director of the respondent company emailed the Workplace Relations Commission to indicate that he and the respondent HR and Accounts manager would be in attendance at the adjudication. The letter refers to the time, date and venue of the adjudication. At the time the adjudication was scheduled to commence, it became apparent that there was no appearance by or on behalf of the respondent. I waited for 20 minutes to allow for any delay and then proceeded with the adjudication in the absence of the respondent. The complainant attended in person.

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977 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 by me and to present to me any evidence relevant to the complaints.

Attendance at Hearing:

Complainant’s Submission and Presentation:

At the outset of the adjudication, the complainant confirmed the identity of the respondent as a limited company and provided her last pay slip, which states the company name. The respondent operates a restaurant business. She outlined that her employment commenced on the 16^th September 2013 and came to an end on the 21^st August 2015. She outlined that she had first completed an unpaid trial period, starting in August 2013, leading to her eventual employment with the respondent in September 2013. She said that she worked in various roles, including as a waitress, as a host in the cocktail bar and she also worked in the office. She was paid €10 per hour and worked 40 hours per week.

In respect of remuneration, the complainant said that she was generally paid weekly, but there was some inconsistency in how this occurred. Prior to the end of her employment, the last time she received pay was a week’s pay on the 20^th July 2015. While the respondent had issued a pay slip dated the 27^th July 2015, the remuneration contained in the pay slip was not, in actual fact, paid to her. The complainant said that she continued to work for the respondent from the 20^th July 2015 to the end of her employment on the 21^st August 2015, without remuneration. She raised this issue with the respondent by email and in meetings, but described the HR & Accounts manager as being rude to her. She said that at the time of the end of her employment, she was owed €1,600 in pay. After the end of her employment, she received pay of €931.98, meaning that she was still owed €668.02.

The complainant said that she had not been given any notice of the termination of her employment and she was entitled to pay for the notice period. She sought redress of €800. The complainant said that she did not receive paid annual leave for the leave year of the 1^st April 2015 to the 21^st August 2015, nor the leave year of the 1^st April 2014 to the 31^st March 2015. She also said that she was not paid for bank holidays for this period and that she had worked on St Patrick’s Day. She confirmed that she had been paid €778.50 in holiday pay in a cheque issued after the end of her employment.

In respect of the end of her employment, the complainant said that the director of the respondent had sent staff an email some two weeks earlier to say that they should not use the restaurant for private drinks after-hours. The reason given was so as not to cause noise, as the venue operated a cocktail bar one night per week. On the night of the 20^th August 2015, the complainant arranged for her and two friends to have private drinks in the premises where a colleague was also there. The complainant said that she later replenished what was used that night and they caused no noise or disturbance. The following morning, she received a text message from the respondent director to say that she was immediately dismissed. There was no investigation into what happened, nor were alternatives to dismissal considered. She had sought to contact the director but he was unresponsive and not welcoming. She said that she had been unfairly dismissed from her employment. She outlined that she went to Germany on the 29^th September 2015 and she had hoped to work up to this date to save money. She returned to Ireland on the 18^th February 2016 and is now looking for work here.

Respondent’s Submission and Presentation:

There was no appearance by or on behalf of the respondent and no submissions were made on its behalf.

Findings and reasoning:

The complainant worked in various roles in a city centre restaurant until her dismissal on the 21^st August 2015. She gave evidence that her formal employment commenced on the 16^th September 2013, although she had completed an unpaid “trial” period over the course of the previous month. She was not clear as to when this commenced. Her start date is of significance in that, taking the 16^th September 2013 as the date of commencement, the complainant had slightly less than two years’ services for the purposes of notice. She is therefore only entitled to one week’s notice, i.e. an award of €400. Pursuant to the Payment of Wages Act, the complainant is entitled to payment for the notice period she ought to have been given.

The complainant is also entitled to any shortfall in her wages. She gave evidence that she was owed €1,600 in unpaid wages and had only received payment of €931.98 after the end of her employment. She is entitled to an award for the difference, i.e. €668.02.

In respect of annual leave, the complainant gave evidence that the only paid annual leave she received was a payment of €778.50 made after the end of her employment. In respect of the leave year 1/4/2015 to the 21/8/2015, she is entitled to €640. In respect of the leave year, 31/3/2014 to the 1/4/2015, the complainant is entitled to €1,600 in paid annual leave. This claim was made within time as it was made within six months of the end of this leave year. Taking account of the €778.50 already paid, the complainant is entitled to redress of €1,461.50. No award is made in respect of the bank holidays as the claim in respect of St Patrick’s Day, 2015 was made later than six months after the date of contravention.

The respondent did not proffer evidence to demonstrate the fairness of the dismissal. I note that there were no procedures used to investigate the issue of after-work drinks and nor was there evidence of alternatives considered to dismissal. I, therefore, find that the dismissal is unfair. Pursuant to the Unfair Dismissals Acts, the complainant is entitled to recover for loss arising from the dismissal. The complainant travelled to Germany on the 29^th September 2015 to continue her studies and she gave evidence that she would have worked up to her departure. Taking account of the week’s pay awarded in lieu of notice, I award the complainant the loss of income she incurred for four weeks and three days, up to the 28^th September 2015. The award made is €1,840.

Taking the above findings together, the complainant is awarded €400 for pay in lieu of one week’s notice, €668.02 for unpaid wages, €1,461.50 for unpaid annual leave and €1,840 in redress for the complainant’s unfair dismissal from her employment with the respondent. The sum of these awards is €4,369.52.

Decision:

Section 41(4) 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. Furthermore, section 8(1B) of the Unfair Dismissals Act, 1977 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.

This decision provides that the respondent shall pay to the complainant the amount of €4,369.52 as redress for breaches of the Payment of Wages Acts, the Organisation of Working Time Acts and the Unfair Dismissals Acts.

Dated:   18^th May 2016