ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000019

Complaint(s)/Dispute(s) 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-00000022-001	01/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00000954-001	19/11/2015
	CA-00000954-002	19/11/2015
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00000954-003	19/11/2015
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00000954-004	19/11/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00000954-005	19/11/2015

Date of Adjudication Hearing: 16/05/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, section 7 of the Terms of Employment (Information) Act, 1994, Section 39 of the Redundancy Payments Act, 1967, Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and section 77 of the Employment Equality Act, 1998 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

18 months ago my current employer took over business from previous owner, who I was employed by for over 6 years and was working as full time employee ( apart from 6 months in 2013 after my maternity leave I was working temporary part time). 2 weeks ago my current employer announced that the hours I work will be cut. Instead of my usual 40 hours I will be down to 12-15 hours per week starting from next week. Just wanted to see what rights I have in this kind of situation and asked for a copy of my contract. Almost two weeks later after asking numerous amount of times I am not being provided with it. Today I told my employer that I am going to make a complaint about not receiving a copy of my contract on a request. He said ; ''Go ahead''.

18 months ago my current employer took over business from previous owner, who I was employed to for over 6 years working as full time employee (apart from 6 months in 2013 after my maternity leave I worked temporary on part time). 2 weeks ago my current employer announced that my hours will be cut, from my usual 40 hours I will be down to 12-15 hours per week starting from next week. I wanted to see what rights I have in situation like this so asked for a copy of my contract. And almost two weeks later after asking numerous amount of times I am still not being provided with it. Today I told my employer that I will make a complaint about not receiving my contract copy on a request. He said: ''Go ahead''.

I already made one complain on 01/10/2015, and I would like this one to be linked with it. Case Ref: ADJ-00000019, Complaint Ref: CA-00000022-001. I would like to make a new claim against my employer regarding my redundancy payment. On 15/11/2015 I was told thru a phone call from The Respondent that business is closing down and he asked me to come in to work to sign redundancy form and said that I will be getting a payment from Social Protection Fund as he can't afford to pay it himself. He did not mention that there is any work for me any more. It's a continuous business from previous owner, and my employment started on 10/12/2007. The Respondent took over business on 01/04/2014. When I came in on Wednesday 18 November to speak to my employer and sign redundancy form, straight away I noticed that the date of redundancy notice is incorrect; he put down 05/10/2015 instead of 15/11/2015. When I pointed it out to him he said that why can't I just take that redundancy and forget about 4 weeks redundancy notice that I am entitled to and just leave him alone. I refused to sign it stating that I never got my paid 4 weeks notice, neither I got any work. I consider that a discrimination, with the fact that other two employees, who are in service only 3 years and are part time staff (I am in this employment almost 8 years as full time employee) and they got their 2 weeks notice and have working hours for the next few weeks. So I am being treated differently. At the end of our conversation he agreed to give me work and told me to come in the following day and do 9-5 shift. When I came in on Thursday 19/11/2015 he pointed out straight away that we need to have a conversation, and said that there is no work for me, there is no 4 weeks notice for me and I am not getting paid for anything. Told me that I have two options: 1. He had the same redundancy form from previous day (with wrong notice date) on a counter and told me to sign it and forget about notice and leave it like that or 2. not sign it and take a letter that he had prepared for me to state that I am unemployed from 19/11/2015 and he told me to go and never come back to him, and that he will not sign any forms for me in the future and that he doesn't care what I will be doing. I did not sign the redundancy form and took that letter to state that he dismissed me.

I already made two other complains and would like them to be linked together. Case Ref: ADJ-00000019, Complaint Ref: CA-00000022-001. I would like to make a new complain against my employer for not giving me any redundancy notice. I was notified about redundancy on 15/11/2015 and got no work since, and didn't get paid for those 4 weeks that I am entitled to since I am in employment more then 5 years. On a redundancy form he asked me to sign he had a wrong redundancy notice date, instead of 15/11/2015 he had written 05/10/2015. I disagreed with that and did not sign it. The end result I was told to never come back to him with any forms that need to be signed. I got a letter from him to state that my employment ended on 19/11/2015.

I have other complains against my employer and would like them to be linked together. Case Ref: ADJ-00000019, Complaint Ref: CA-00000022-001. I have been on continuous employment which started on 10/12/2007. I was employed as full time staff. The Respondent took over business from previous owner on 01/04/2014. On 17 November I was told that he can't give me full 40 hours for some time and he doesn't know for how long and from 05/10/2015 I was put on 15 hours per week. I asked for a copy of my original contract and that's when my employer's attitude started to change towards me. Never got to see my contract and he kept saying one thing then another. He gave me new 15 hour per week part time contract and asked me to sign it, I refused stating that I want to continue to work under my original contract, and told him that I will work those hours he is providing but only if it's temporary and I will be seeking a review to see if he has my full hours back in 4 weeks time. In a mean time my employer was making me feel unwanted and uncomfortable in work. And every time I was bringing up conversation about getting my full time back or asking if he found my contract there was shouting from his side, and a few times even on front of customers, which made me feel embarrassed and upset. Just because I was standing up for my rights and fighting what I am entitled to. I knew that he can't continue to give me short time for more then 4 weeks, so when I realised that this is not looking as temporary situation and gave him form RP7 on Tuesday 03/11/2015, he signed it and returned it to me the following day stating that he will have me back on full time from 23/11/2015 for continuous 13 weeks without any short time. On Sunday 15/11/2015 on a phone I was told by my employer that he is closing the business and was asked to come in to sign redundancy form. Without any notice he left me out of work, and when I came in to sign the redundancy from he had the wrong date of notice. Instead of 15/11/2015 he put down 05/10/2015. I refused to sign saying that I never received my 4 weeks notice, I haven't received any payments and I have no work. There was more screaming and shouting from his side and, again, on front of few customers, which was very uncomfortable for me. There are two other employees, both of them employed as part time and both of them in service a lot less then me, only 3 years compared to me- I am in this employment for almost 8 years. I consider that a discrimination, because they got their notice and they still have work for a few weeks. And I am being treated differently. At the end he told me to come in today, 19/11/2015 and do 9-5 shift. When I came in this morning I was told that we need to have a conversation, and he was rude to me, screaming at some points, stating that he has no work for me, no notice and I am not getting any payments for those 4 weeks so I have an option to sign redundancy form he already had from previous day with wrong notice date and forget about the rest. I didn't signed it as it's not correct. So with that I was told to leave straight away and never come back to him with any forms or anything. He gave me a letter to state that I am unemployed from 19/11/2015. I just think it's very unfair to treat me like this, when two other employees who got notice and still got work are being treated same way as always.

Respondent’s Submission and Presentation:

Did not attend and no submission was received.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act in addition to section 7 of the Terms of Employment (Information) Act, 1994,Section 39 of the Redundancy Payments Act, 1967, Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and section 77 of the Employment Equality Act, 1998

Issues for Decision:

Act	Complaint/Dispute Reference No.	Decision required
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00000022-001	Was a Contract of Employment issued ?
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00000954-001
	CA-00000954-002
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00000954-003	Is Employee entitled to Statutory Redundancy pay?
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00000954-004	Is there an entitlement to Minimum Notice Pay in this case
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00000954-005	Has there been Discrimination in Relation to Race, Conditions of Employment and discriminatory Dismissal.

Legislation involved and requirements of legislation:

All Acts listed above in Complaints CA-00000022-001 to CA-00000954-005

Decision:

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00000022-001

01/10/2015

A Contract of Employment dated the 5^th October 2015 was presented to the Complainant by the Respondent. A copy of her previous Contract with the former employer (the business had gone through a TUPE process) was not available.

The Claim against the current or employer at the time fails as a Contract was supplied – copy presented in evidence.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00000954-001

Replication of CA-00000022-001 above – Claim fails.

CA-00000954-002

No details of this claim provided.

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00000954-003

The Complainant has an RP50, dated 19/11/2015 and a letter, undated, from her former employer offering her Statutory Redundancy for a Reference Period of 10/12/2007 to the 19/11/2015.

The Complainant was unaware of the formalities involved, the details of the Employers’ Insolvency Fund etc. and did not pursue her claim through the appropriate channels.

There is no doubt that she qualifies and should have her claim processed and paid forthwith for this reference period.

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00000954-004

Uncontested evidence from the Respondent indicated that she was given notice of Redundancy on the 15^th on November 2015 –employment to end on the 19t November 2015. On the RP50 the date of notice given was the 5^th October 2015. The Respondent was alleged to have stated that this was backdated to expedite the Statutory Redundancy payment.

On the balance of probabilities I found the Complainant to be more likely to be giving accurate evidence.

Accordingly I award the Minimum Notice of Four Weeks pay.

As Wage or Salary records were not available and the complainant’s earning varied form week to week I took the salary figure quoted on the RP50 and the Complaint form - € 440 as the weekly wage = € 440 by 4 = €1,760 as the amount of the award.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00000954-005

The essence of the Complainant’s case here was that she had been made redundant before two other Irish employees who worked lesser hours. Reviewing all the available evidence, which was uncontested from the Respondent, I could not find, as required by Section 85 of the Employment Equality Acts, prima facie evidence of discrimination on Race, Conditions of Employment or Discriminatory Dismissal grounds against the Complainant as required by the Act. Her selection as the first staff member to go on Redundancy was, she agreed in evidence, more to do with the fact that she was probably the highest paid member of staff and had little to do with her nationality or gender.

Accordingly the claim for Discrimination under Section 77 of the Employment Equality Act is not well founded and is dismissed.

Dated: 29/06/2016