ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001202
Complaints for Resolution:
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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-00001592-001 |
21/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00001592-002 |
21/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 |
CA-00001592-003 |
21/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00001592-004 |
21/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00001592-006 |
21/12/2015 |
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 a Waitress from 7th November 2014 to 10th December 2015. She worked 20 hours per week and was paid €8.65 per hour.
1) CA-00001592-001 Terms 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 €600 within six weeks of the date below.
2) CA-00001592-004 /006 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 entitlement. Without this contract she know her rights.
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 Waitress. I find that a contract of employment would have given her the knowledge of her entitlement which she was denied. Therefore I find that this constitutes reasonable cause. Therefore I have decided to grant the extension. This complaint was presented to the Commission on 21st December 2015; therefore the period that may be investigated is 22nd December 2014 to 10th December 2015.
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. She was often the only person at work and took smoke breaks when possible. She regularly got only 5 minutes for lunch because if a customer called in she would have to serve them. No breaks were rostered and she was never told what her entitlements to breaks were.
b) Public Holidays She did not work Dec 25th, 26th and Jan 1st, she worked 10 hours on March 17th, and she doesn’t know if she worked Easter, May, June. She worked 10 hours in August and October .She 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. She understood that it was holidays only and not compensation for Public Holidays.
c) Sunday Premium |
She worked one in four or five weeks. No premium was given; she was paid the same rate irrespective of the day. |
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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 breaks and free meals, which she used and smoke breaks. They do not have records of breaks. They observed staff taking their breaks.
b) Public Holidays They don’t have records of the compensation. She got a day in lieu of the Public Holidays and if not taken it was added on to the holidays. The Auditor statement said that the payment for Public Holidays was included in the final 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. There is no record of the actual Sundays worked.
Findings a) Rest Breaks I note the conflict of evidence on this matter.
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 on the balance of probability I find that the Complainant has exaggerated her claim. I find that compensation of €150 (one hundred and fifty) is warranted. b) Public Holidays I find that the Auditor’s statement did not provide clear evidence that the payment was made. So on the balance of probability I find that the payment was not made. 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 note the conflict of evidence in this case.
I find the Respondent has breached Sec 14 of this Act. I note the evidence that she worked one in every four/five weeks (about 10 Sundays in the year). I note that this is denied by the Respondent but they have no records of the actual Sundays worked. I find that a premium of 25 % is reasonable for this industry. Therefore I find that she is entitled to €21.60 per Sunday worked amounting to €216.60. |
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 €389.40 for the economic loss and in addition compensation of €200.00 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-00001592-002 Unfair Dismissal
Complainant’s Submission and Presentation:
On 10th December she arrived at work and her manager queried why she was at work. She was told by her manager that there was no work for her or any of you referring to two other members of her family. A very heated argument ensued. She understood that she was dismissed. She left and returned shortly to ask for her P45 and holiday pay.
She was out of work until 4th April 2016. She applied for numerous jobs in bars, hotels diners and in housekeeping. She now has a job with better terms and conditions since 4th April 2016.
She was unfairly dismissed and she has sought compensation.
Respondent’s Submission and Presentation:
The dismissal was denied.
They stated that an employee told them that all three of the family had intended to leave after the incident on the Tuesday 8th with one member of the family. They were also told by a sales representative that he had heard that one member of the family had left. The employer made alternative arrangements. That was why she told her ‘there is no work today’. This was not a dismissal it only referred to the one day. The argument became so abusive that she told her to phone her husband. She left and returned shortly and requested her P45 and that of her other relation.
The Respondent’s witness stated that she later had a phone call with the Complainant who told her that she would “take them to the cleaners”.
There was no dismissal. The complainant resigned her position by requesting the P45 for herself and her relation. They accepted this as a resignation because of her very aggressive conduct.
This claim is rejected.
Findings
I note the conflict of evidence in this case.
I note that the Respondent believed that they had learned that all three members of this family intended to leave the employment just before Christmas in order to cause the maximum hassle, following an incident on Tuesday 8th December with one member of this family.
I find that the Respondent failed to verify this with one or all of the three members.
I note that they then made arrangements to cover for the Complainant on the 10th December shift.
I find that this gave rise to the very aggressive meeting on Thursday 10th when the Complainant was told that there was no work.
I note the conflict of evidence regarding the abusive argument that took place and what happened after it.
I fail to understand why two adults could not have clarified whether there was an intention to dismiss or not.
I note that the Complainant repeatedly asked ‘are you firing me’ to which she was told no.
So why did this deteriorate into a farce where all three family members left the employment?
Does this give meaning to the “conspiracy theory “ that all three had a intended to leave together and cause the maximum havoc on the company coming up to Christmas? How could the working relationship have deteriorated so much so quickly? Why would three people who needed to work walk away two weeks before Christmas?
I find that there was an overwhelming misunderstanding staring with the incident on 8th December with the first member of the family believing that they were dismissed.
On the balance of probability I find that both parties to this dispute must accept responsibility for this unseemly situation.
Ultimately I have to decide was there a dismissal or not.
On the balance of probability I find that there was no dismissal. There was a great big misunderstanding that went out of control.
I find that the Respondent has a responsibility to manage this but they failed.
I find that the Complainant had a responsibility to establish facts surrounding the dismissal or not but she didn’t , she demanded her P45 and that ended the employment.
I find that no dismissal has taken place.
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 under Section 8 of the Unfair Dismissals Act, 1977
For the above stated reasons I have decided that the claim was not well founded and that it fails.
4) CA-00001592-003 Minimum Notice and Terms of Employment Act
Complainant’s Submission and Presentation:
She stated that a very heated discussion with her manager took place on Thursday 10th December after she was told that there was no work for her or her relations.
In that discussion she understood that she had been dismissed so she demanded her P45 as others had to wait for months for theirs.
She was summarily dismissed and she is seeking one week’s pay in minimum notice.
Respondent’s Submission and Presentation:
They stated that after a heated argument with the manager she resigned her position on 10th December. On Friday 11th December she phoned the manager twice to ensure that the P45 would be ready for her and her relation, she also asked about the notice payment for her relation.
She resigned her position on 10th by requesting her P45. No notice is due.
Findings
I note the conflict of evidence in this case.
I refer to the above decision under the Unfair Dismissals Acts where I found that there was no dismissal.
Therefore I find that the Complainant resigned her position with immediate effect.
I find that there is no entitlement to minimum 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 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: 29TH July 2016