ADJUDICATION OFFICER DECISION

Adjudication decision Reference: ADJ-00000244

Complaints for Resolution:

Date of Adjudication Hearing: 27/01/2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 20^th October 2015, the complainant referred complaints to the Workplace Relations Commission in relation to redress sought pursuant to the Payment of Wages Act, the Terms of Employment (Information) Acts, the Redundancy Payments Acts and the Unfair Dismissals Acts. The complaints were scheduled to adjudication on the 27^th January 2016.

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act 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.

Complainant’s Submission and Presentation:

The complainant commenced working for the respondent at age 16, on the 27^th June 2005. She worked in a variety of roles, including as an usher, a kitchen porter, an ice cream sales person and as both a member of the bar and waiting staff. She worked for many years at the music venue, but also worked for the respondent at the café-restaurant. In 2014, the music venue began trading during the day time. The complainant opened the venue each day and also ordered stock. Depending on the roster, she would work in the kitchen or on the floor. She would also close when there was no show that night.

The complainant outlined that she had been bullied by a named colleague, who was the cellar man for the respondent, i.e. he was responsible for the stock. She was not happy with how he spoke to her and about her, alleging that he would open a fridge door into her face. She said that she complained of this colleague's behaviour on three occasions. These complaints were made to the Manager. Responding to her second complaint, made in February 2015, the Manager offered to ask a third party investigate the complaint and suggested the Accountant. The complainant said that she would prefer for the issue to be resolved informally, without going to a third party. The Manager said that he would speak with named colleague. Following her third complaint, made in March 2015, the Manager told her to stay out of the way of the named colleague. The complainant said that in February 2015, she had been injured at work in an incident where she was burnt. This was subject to a personal injuries claim to the Injuries Board. She outlined that she had asked the respondent for an incident report on many occasions but never provided with one. She had been asked many times whether she was planning to sue the respondent. She said that she has never been asked to complete an incident report.

Addressing the end of her employment, the complainant said that on the 8^th June 2015 she was summonsed to a meeting with the respondent Manager and Accountant. She asked whether she needed to have anyone accompany her and was told no. They informed her that the daytime service would cease. The Manager also told her that she had not worked in the café-restaurant, which she understood as meaning that she was never officially on the books of the café-restaurant. The complainant also said that she was informed that the evening roster for the music venue was full and that the venue would close, as usual, for July and August. She said that during the summer months, staff would be deployed on outside events run at a named location. She was not offered work for these months and she said that there might be evening work in September 2015. She was also informed that the café-restaurant was fully staffed and she had ceased receiving hours there in February 2015. The complainant said that at the meeting of the 8^th June 2015, the representatives of the respondent had raised her personal injury claim. They offered her €5,000 to sign a confidentiality agreement and to waive the claim. She had understood this to be a binary offer; she had the choice of accepting the sum offered or of continuing her employment with the possibility of getting work in September. She asked to have the offer made in writing. The complainant said that she was later sent a P45, which gives her date of cessation as the 14^th June 2015.

In respect of losses she incurred after the end of her employment, the complainant said that she had worked for friends who were putting on shows. She was paid for this work and earned about €200 per month. She had worked trial (and unpaid) shifts in cafés or restaurants, including at two venues close to where she lived. In January 2016, she had found employment at a named restaurant and was training to be a manager. As an alternative, the complainant claims an entitlement to redundancy on the basis that she was not offered employment after the end of the day-time shift in the music venue.

The complainant said that her Payment of Wages claim related to a reduction in her pay when as she was no longer allocated hours in the café-restaurant, work that generated tips. There were no or little tips in the music venue. She also said that once a roster had been circulated, she would receive further emails to say that her hours were reduced on particular days, for example that her shift would end at an earlier time. She explained that her net weekly income was approximately €320 and that she worked 28 hours per week.

In respect of the Terms of Employment claim, the complainant said that she had not been provided with a contract of employment, nor terms of employment.

Responding to the evidence of the respondent, the complainant said that it was her clear understanding of the meeting of the 8^th June 2015 that she was offered a choice between accepting the offer and continuing her employment with the respondent, or not to accept the offer and end her employment. After obtaining advice from a citizen's information centre, she indicated in a text message that she wanted the offer in writing. She acknowledged that she had seen the notice relating to terms and conditions of employment on a notice board, but that this did not say who her employer was. She said that she was supplied with neither a dismissals policy, nor a policy relating to bullying.

Respondent’s Submission and Presentation:

The respondent outlined that it accepted that the complainant commenced working for it in 2005 and that her role changed in that time. Her assigned hours altered according to business demands and she worked in different businesses it operated. The complainant was assigned to work during the day at the music venue and this service ceased in June 2015 as it was not economic. The respondent outlined that the complainant had effectively resigned from her employment when she had not informed the respondent of her availability. It denied that it had refused to supply her with an incident report, or that a financial offer had been made to the complaint to withdraw a personal injuries claim. The respondent outlined that it had offered to arrange for a third party to investigate the bullying complaints, but this offer was rejected by the complainant. The Manager gave evidence. He said that at the meeting on the 8^th June 2015, the complainant was offered evening work at the music venue. He said that he filled in the roster according to the availability of staff. He did not hear from the complainant and referred to text messages he and the complainant exchanged. He said that the offer referred to in the complainant's text message referred to the offer of evening work.

He denied that the complainant had been made any financial offer relating to her injuries claim. In relation to this, the Manager said that a colleague had provided an incident report of the incident involving the complainant, but no request had been made for it. He said that the complainant had not completed an incident report. He stated that the wife of the respondent had attempted to telephone the complainant and that he and a named colleague had visited her after the incident. In respect of the bullying allegation, the Manager said that there had been two complaints from the complainant and the first had been made in early 2015. He told the complainant that he would speak with the colleague she identified. After her second complaint, the Manager offered to ask the Accountant to investigate her complaint as he felt too close to the people involved. The complainant declined this offer. The Manager said that the bullying policy was included in the 54-page Safety document kept in the staff room. Commenting on the café-restaurant, the Manager said that his role related to ordering stock but that it was managed by a named colleague. He was one of two full-time staff employed by the respondent and the remaining staff worked about 30 hours per week.

The Manager said that rosters for the music venue were generally emailed to staff on a Friday and those for the café-restaurant on a Saturday. The rosters would reflect anticipated demand and it was rare to send staff further emails to amend those hours. In relation to the text messages of the 12^th June 2015, the Manager said that the initial text was sent only to the complainant. She was not allocated hours as she never gave her availability. In respect of the terms and conditions of employment, the Manager said that staff were not on contracts when he started working for the respondent. He referred to a notice which he said is pinned to a notice board in the corridor between two staff rooms. This notice addresses staff who under 18, holiday pay, bank holidays, payment of wages, rotas and breaks. Also pinned to the notice board was a Safety Statement and other information regarding the business.

In cross-examination, the Manager said the terms and conditions document does not state who the employer is, but that this was referred to on pay slips. He said that the notice did not give a description of the complainant's position and referred to one location of work, the music venue. He said that rosters were prepared to reflect business demand and confirmed that there had been no redundancies. It was put to the Manager that there was a contrast between his follow-up to the complainant's injury at work, when he called to her home, and his lack of follow-up to the June text message. He replied that he had dropped the complainant home after late finishes and wished to call to see how she was after the injury. He stated that he understood the reference to "offers" in the complainant's text message to refer to his offer of evening work at the music venue. The Accountant outlined that she was engaged by the respondent to manage the accounts of the businesses. She said that she had been concerned by the poor trading results of the daytime service at the music venue. A decision was made that this service should cease. She and the Manager met with the complainant on the 8^th June 2015 to inform her of this change. She said that she had no recollection of any financial offer being put to the complainant relating to the injuries claim. The complainant was paid for the week that she was scheduled for as well as paid her holiday entitlement. The complainant remained on pay roll and a P45 issued on the 8^th October 2015, as required by Revenue.

In closing submissions, the respondent outlined that the complainant had not adduced any evidence to substantiate a claim of constructive dismissal. As there was an offer of work, there was no redundancy. The complainant had resigned from the respondent's employment. The complainant had not supplied evidence of her employment after June 2015 and the respondent had been informed that she had worked in a café close to where she lived. There was also no evidence of any wages owed to the complainant and it was the nature of the role that her income fluctuated.

Findings and reasoning:

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. Section 8(1B) of the Unfair Dismissals Acts requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with the Acts. The claim for a redundancy lump sum payment is made in the alternative to the claim of unfair dismissal.

In respect of the claim made pursuant to the Terms of Employment (Information) Act, 1994, it should first be noted that this statute implements Council Directive 91/533/EEC. At Article 2, the Directive refers to the obligation on an employer to notify the employee of essential aspects of the contract or employment relationship. Article 3 refers to the "hand over" of a contract of employment, a letter of engagement or one or more document encompassing the information required. Section 3 of the Terms of Employment (Information) Act, 1994 provides that an employer shall "give" to an employee a statement in writing containing details of the employment.

The respondent asserts that this obligation has been met by the fixing of notices to a common area in the music venue. From a reading of the statute, it is clear that such a notice is insufficient as it is not "given" to the employee and nor does it include the specific information required of such a statement for the employee in question. It does not give the complainant's job title or her date of commencement. The notice affixed does not include many of the provisions required by section 3, so it is, as a statement, deficient. It follows that the complaint in relation to the Terms of Employment (Information) Act is well-founded. In the circumstances of this case, taking account of the duration and flexible nature of the complainant's employment, an award of four weeks' remuneration is appropriate. Given that the complainant's gross weekly pay was €408 (taken from the complainant’s P45), this award is €1,632.

In respect of the claim pursuant to the Payment of Wages Act, thecomplainant outlined in the complaint form that she was entitled to notice pay following the end of her employment. At the adjudication, she raised the issue oftips, in particular where her assignment to the music venue deprivedher of tips available at the café-restaurant. I find that the complainant is entitled to the notice pay she was entitled to, given her service of nine years with the respondent, i.e. the equivalent of four weeks’ remuneration. This award is in the amount of €1,632. This award is, of course, predicated on the finding made below that the complainant was dismissed, as opposed to having resigned, from her employment. I make no finding in relation to tips as no documentary evidence was submitted to corroborate this claim.

The central conflict in this case relates to the end of the complainant’s employment with the respondent in or around the 8^th June 2015. The complainant says that she was given a “binary” offer by representatives of the respondent to accept a confidential settlement of a personal injuries claim. The respondent denies the claim of constructive dismissal, outlining that the complainant resigned her employment in not indicating her availability for shifts in June 2015. Having considered the oral and written evidence of the parties, I resolve this conflict in favour of the complainant. I do so for the following reasons. The complainant is a long-serving employee of the respondent and had undertaken a wide variety of roles, in different businesses operated by the respondent. She began working for the respondent at age 16. She was assigned to various roles and one could say having a generalist position with the respondent. No issue was raised as to her performance. In contrast to the longevity of her employment, the complainant’s relationship with the respondent came to an abrupt end in June 2015. There is a conflict over what occurred, in particular with regard to a personal injuries matter. I believe that the text messages exchanged between the complainant and the Manager can only make sense in the light of the complainant’s evidence. Her text message of 11.59 refers to “Hi [Manager’s name], I have been advised to wait until I receive offers in writing before I come to my final decision, so if this causes unnecessary delays.” The response of the Manager, at 12.02, states “Ok. I will work away on the rota.” It is entirely coherent that the reference to “offers” in the complainant’s text refers to the personal injury matter, and not as suggested by the respondent to the offer of evening work. This was a longstanding and flexible employee of the respondent; why would she need advice for work she had done for many years? I find that the complainant was given an ultimatum in relation to her employment and the personal injuries claim. She did not sign the confidential settlement and was never offered any more hours. She had previously worked in the music venue during the evening, and also at an identified summer venue and the café-restaurant. Unlike previous years, she was not allocated such work. Despite her longstanding employment relationship, there was no further contact from the respondent, apart from the issue of the P45 some months later. The complainant contrasts this with the treatment she received from the respondent immediately after the incident in which she was inflicted with a burn injury at work. Taking these facts, I find that the complainant was dismissed by the respondent in not being allocated more hours of work. It follows that the complainant was dismissed by the respondent in contravention of the Unfair Dismissals Acts

The complainant gave evidence of her attempts to find alternative work after the end of her employment with the respondent. She earned €200 per month assisting in theatre productions put on by friends. In January 2016, she started as a trainee manager in a named restaurant. I accept the complainant’s evidence that she did unpaid trial shifts in other cafés that had not led to offers of employment. She has financial loss from the 12^th June 2015 to the end of 2015. As outlined above, this report awards the complainant four weeks’ remuneration as notice pay. The actual loss incurred by the complainant, therefore, commences on the 12^th July 2015 and came to in early January 2016. This is a period of 24 weeks. Her gross income was €408 per week I take account of the €200 she earned per month in theatre productions, which, over 6.5 months, amounts to €1,100. The amount of financial loss incurred by the complainant is €8,692 (this being 24 x 408 = 9792; 9792 – 1,100 = 8692).

Decision:

Pursuant to the complaints made regarding the Payment of Wages Act, the Terms of Employment (Information) Acts, the Unfair Dismissals Acts and the Redundancy Payments Acts, I find that the complainant is entitled to recover:

• The amount of €1,632 for a breach of the Payment of Wages Act, this being notice pay of four weeks;
• The amount of €1,632 for a breach of the Terms of Employment (Information) Act;
• The amount of €8,692 arising from the unfair dismissal of the complainant from her employment with the respondent, this being a breach of the Unfair Dismissals Acts;
• No award is made pursuant to the claim made under the Redundancy Payments Acts as I have found that she was dismissed from her employment on grounds other than the redundancy of her role.

Pursuant to the above findings relating to three well-founded claims, the respondent shall pay to the complainant the sum of the awards of €1,632 (Payment of Wages Act), €1,632 (Terms of Employment (Information) Act) and €8,692 (Unfair Dismissals Act), this being the amount of €11,956.

Dated:   16/06/2016