ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001276
Complaints for Resolution:
Act | Complaint/Dispute 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-00001692-001 | 29/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00001692-002 | 29/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00001692-003 | 29/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00001692-004 | 29/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00001692-005 | 29/12/2015 |
Date of Adjudication Hearing: 17/05/2016
Venue : Ashdown Park Hotel, Gorey, Co Wexford
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and section 7 of the Terms of Employment (Information) Act, 1994 Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and section 27 of the Organisation of Working Time Act, 1997 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaints/disputes o me by the Director General, I inquired into the complaints/disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/disputes.
Background
The Complainant was employed as Bar Supervisor from 1st August 2014 to 9th December 2015. She worked 39 hours per week and was paid €340.00 per week.
1) CA-00001692-001Terms of Employment (Information) Act
Complainant’s Submission and Presentation:
She stated that she did not receive a written contract or anything in writing in order to comply with Section 3 of the Terms of Employment (Information) Act 1994. |
She cited Hedigan J. in the High Court decision Arturs Valpeters v Melbury Developments Ltd 2009 106 MCA , which ruled that compensation may be granted even though there is no loss accruing to the Complainant.
She is seeking the maximum 4 weeks wages in compensation. |
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Respondent’s Submission and Presentation:
The Respondent accepted that no written contract of employment was issued.
As no loss accrued to the Complainant they argued that a zero award should be made.
Issues for Decision:
I note that the Respondent has accepted that no written contract of employment was issued.
I find that the Respondent has breached Sec 3 of this Act.
I note that Hedigan J. in the High Court case Arturs Valpeters v Melbury Developments Ltd 2009 106 MCA stated “An award of compensation can be made pursuant to Sec 3 and 7(2) of the Terms of Employment (Information) Act 1994 in the absence of any loss accruing to an employee arising from the failure of an employer to provide a contract of employment to an employee”.
Legislation involved and requirements of legislation:
I note that Sec 7 (2) (d) of the Act states, ”compensation of such an amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks remuneration”
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint/dispute in accordance with the relevant redress provisions under Sec 7 of the Terms of Employment (Information) Act, 1994
I have decided that the Respondent should pay the Complainant compensation of €1,000 within six weeks of the date below.
2) CA-00001692-004 /005 Organisation of Working Time Act
Request to extend the time limit
Complainant
She requested an extension to the time limit as she did not get a written contract of employment which should have advised her of her entitlements.
Respondent
There is no proper basis upon which to extend the time limit.
Decision on request to extend the time limit
I note that the Complainant was employed as Bar Supervisor. I find that a person in that position has accumulated a degree of experience in how to manage people and their entitlements at work. Therefore the non-issuing of a contract in my opinion does not constitute reasonable cause to extend the time limit.
The claim was presented to the Commission on 29/12/2015 therefore the period that may be investigated is 30th June 2015 to 8th December 2015 the end date of the employment, a period of 23 weeks.
Complainant’s Submission and Presentation:
a) Rest Breaks She stated that she worked 10.00am to 8.00pm or 8.30am to 8.00pm, some days more than that. While she was responsible for rosters the staffing structure did not allow for breaks. Customers had to be served and so any breaks had to be interrupted.
b) Public Holidays In respect of the June, August and October Public Holidays she worked 10 hours per day and received no compensation. Holiday pay was given at the end of the employment but she doesn’t know if it included payment for the Public Holidays.
c) Sunday Premium |
In the allowable period of this investigation she worked every Sunday, so 23 Sundays were worked. No premium was given, she was paid the same rate as other days. |
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Respondent’s Submission and Presentation:
a) Rest Breaks They stated that it was up to the staff to take them. She got a lunch break and free meals. She was responsible for rostering so it was up to her to arrange the breaks.
b) Public Holidays A statement from the Auditors said that the Public Holidays payments were included in the last payment.
c) Sunday Premium |
They stated that breaks are paid and she was in receipt of free meals each shift. This was her compensation for a premium for working Sundays.
Findings a) Rest Breaks I note the conflict of evidence in this matter. I note it was the Complainant’s responsibility to roster the staff. I note that the Respondent did not keep records of breaks. I note that it was left to the staff to take their own breaks. The responsibility rests with the Respondent to ensure that all staff receive their statutory entitlements to breaks. The Labour Court in The Tribune Printing & Publishing Group v Graphical Print & Media [2004] E.L.R. 222 stated that an employer was under a positive duty to ensure that employees received their breaks: -“The Company is under a duty to ensure that the employee receives his equivalent rest and breaks. Merely stating that employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks, thus protecting his health and safety, does not discharge that duty”. I find that the Respondent has breached Sec 12 of this Act, however I believe that the Complainant has exaggerated her complaint. I find that compensation of €200 (two hundred) is warranted. b) Public Holidays I note that the Respondent requested time to produce evidence that the Public Holidays were paid. I note that the statement from the Company Auditors, however it is not evidence that proves the days were paid. It states that it is included in the cessation pay but I am not in a position to adjudicate upon whether it was properly paid or not. Therefore on the balance of probability and in the absence of hard evidence I must conclude that she is owed for two Public Holidays as the June holiday claimed was outside the time limit allowed.
I find that the Respondent has breached Sec 21 of this Act and compensation of €172.80 is warranted.
c) Sunday Premium I find that paying for breaks and the giving of free meals does not meet with the requirements of this Act. Sec 14 (1) (b) states, “an employee who is required to work on a Sunday .. shall be compensated by otherwise increasing the employees rate of pay by such an amount as is reasonable having regard to all the circumstances b) by increasing the employees’ rate of pay by such an amount that is reasonable, c) by granting an employee such paid time off as is reasonable, d) or by a combination of two or more of the mean referred to in the preceding paragraph”. I find the Respondent has breached Sec 14 of this Act. I note the evidence that she worked 20 Sundays. I find that a premium of 25 % is reasonable for this industry. Therefore I find that she is entitled to €2.37 per hour X average 9 hours =€21.33 per Sunday worked X 23 amounting to €490.59. |
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints/disputes in accordance with the relevant redress provisions under Schedule 6 of that Act and as per Sec 27 (3 (a) I have decided that the compliant was well founded.
As per Sec 27 (3 (b) I require the Respondent to comply with the relevant provisions of Sec 12, 14 and 21 of this Act.
As per Sec 27 (3) (c) I require Respondent to pay the Complainant €663.39 for the economic loss and in addition compensation of €200.00 for breach of her rights under the Organisation of Working Time Act, 1997.
This is to be paid within six weeks of the date below.
3) CA-00001692-002 Unfair Dismissals Act
Complainant’s Submission and Presentation:
She stated that after the Tuesday 8th December incident with another employee who was a relation of hers her manager treated her very badly. She had also been forced to work excessive hours because of staff shortages. She resigned her position on Wednesday 9th and gave two weeks notice.
She went to work on Friday at 12.00 noon as normal, dressed for work but to her shock was handed her P45 and wages due for the hours worked. She denies asking her relation to request the P45. She gave two weeks notice because she didn’t want to leave the employer short coming up to Christmas and she needed the work. She did not get minimum notice. She accepts that she did not ask her employer to sort out her problems with the employment.
She is seeking compensation. She got a part time job in January working 20 hours per week. She had to return to live at home and so she had to change jobs. She now works only 10 hours per week.
Respondent’s Submission and Presentation:
They stated that she resigned her position on 9th December giving two week’s notice. The following day following at a heated argument with another employee who was a relation of hers the P45 and monies owed were requested on her behalf. On Friday morning 11th December her relation phoned the manager to ensure that the P45s would be ready and asked if the Complainant’s minimum notice would be ready. She was told that no notice would be paid as she had negated the notice. So on Friday 11th December at approximately 1.30pm not 12.00noon as alleged she came in and was given her P45 as requested. They were unaware of her alleged issues with hours of work. She had not raised any grievance. There was no mistreatment by her manager. She resigned her position and then her P45 was requested. This claim is rejected.
Findings
I note the conflict of evidence in this case.
I note that the Complainant tendered her resignation on Wednesday 9th December, giving two weeks notice.
I note that she alleges that the reason for her resignation was on account of the excessive hours that she had to work. Yet I note that she was in charge of the rosters. She has argued that staff shortages forced her to work these hours.
I also note that she did not raise any grievance with her employer about these excessive hours.
I note that she stated that since a dispute with another employee who was also another relation of hers on the Tuesday 8th December she alleges that she was treated unfairly.
I note that this alleged unfair treatment was only 24 hours earlier
I find that the incident with her relation on Thursday 10th December could not have influenced her decision to resign.
I note that the Respondent was clear that her relation had asked for her P45 and telephoned on Friday morning to check if it was ready and queried the notice payment.
I note that a witness for the Respondent alleged that the Complainant attended at work at about 1.30 pm not 12.00 noon as alleged. So she was not arriving for work and was not dressed for work. The Complainant had alleged that she was dressed for work and arrived at 12.00 noon.
On the balance of probability I have decided that the evidence of the Respondent and their witness is more believable. So I find that she did not intend to attend at work but rather went to collect the P45 as pre-arranged by her relative.
Therefore I find that the P45 was requested on Thursday 10th and that the Respondent was phoned again on Friday 11th concerning the P45 and notice payment.
Therefore I find that she did not intend to work her two weeks notice.
I find that the Complainant has no basis for claiming constructive dismissal. She did not speak to her manger about the alleged excessive hours. She did not alert the manager that she was contemplating resigning if her issues were not addressed.
I find that the Complainant has not established a case for constructive dismissal.
Decision
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act and 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.
For the above stated reasons I have decided that the complaint was not well founded and that it fails.
4) CA-00001692-003 Minimum Notice and Terms of Employment Act
Complainant’s Submission and Presentation:
She handed in her notice on Wednesday 9th December and gave two weeks notice. She attended work on Friday 11th December and was given her P45 and wages due. She did not get paid in lieu of notice. She has claimed one week’s notice.
Respondent’s Submission and Presentation:
They stated that she resigned her position on Wednesday 9th December. On 10th December her relation after a heated argument with the manager asked for both P45s and any monies due to be collected the next day. On Friday 11th December her relation phoned the manager twice to ensure that the P 45 would be ready and asked about the notice payment. She was told that no notice would be given as she had negated the notice period by asking for the P45. She arrived at 1.30pm approximately to collect the P45 and not to start a shift.. She was dressed in casual jeans not work wear.
No notice was due because she requested the P45 for 11th December 2015.
Findings
I note the conflict of evidence in this case.
As stated above I find the Respondent and their witness more believable and so I find that the Complainant’s relation on Thursday requested the P45.
I also find on the balance of probability that her relation phoned twice on Friday to check that the P45s would be ready.
On the balance of probability I find that she was told that the notice period had been negated by the request to collect the P45.
I find tyat she did not intend to work the shift as hse arrived at 1.30 approximately and not 12.00 as alleged.
So I find that she did not intend to work her notice. Therefore I find tyat she has no entitlement to notice.
I find that this claim fails.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act and Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.
For the above stated reasons I have decided that the claim was not well founded and that it fails.
Dated: 2nd August 2016