ADJ-00001035

ADJUDICATION OFFICER DECISION

A Catering Worker –v- Catering Company

Adjudication Decision Reference: ADJ-00001035

1. Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 22/03/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

2. Procedure:
3. This case refers to a claim by a Commis Chef (the claimant) against a Catering Company (the respondent) that the claimant:
4. did not receive a written copy of his terms and conditions of employment contrary to Section 3 and 5 of the Terms of Employment (Information) Act, 1994
5. did not receive his correct wages contrary to section 5 of the Payment of Wages Act, 1991
6. was unfairly dismissed contrary to Section 6 of the Unfair Dismissals Act, 1977

2. In accordance with Section 41(4) of the Workplace Relations Act, 2015; Section 7 of the Terms of Employment (Information) Act, 1994; section 6 of the Payment of Wages Act, 1991; and Section 8 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.
3.  

The respondent did not attend the hearing.

4. Complainant’s Submission and Presentation:
5. The Claimant is a Romanian national and was employed as a Commis Chef and Cleaner at the respondent’s premises in Dublin since 27^th February 2013. His wages were €10.55 per hour.

4. Complaint of contravention of Section 3 and 5 of the Terms of Employment (Information) Act, 1994
5. The claimant maintained that he was never provided with written terms and conditions of employment contrary to Sections 3 of the Terms of Employment (Information) Act, 1994. The claimant maintained that he asked for his written terms and conditions after he received his first pay but it was not provided to him.

4. Additionally, following a change of ownership of the business which occurred in June 2015, the claimant contended that matters deteriorated. He advised that changes were made to his working conditions in that the respondent:
5. reduced the claimant’s rate of pay from €10.55 per hour to €10 per hour,
6. reduced the claimant’s hours of work from a full time role to a shorter working week , and
7. required the claimant to work in a different location from Dublin to Meath.

4. The claimant maintained that he was not provided with written notification of these changes which is contrary to Section 5 of the Terms of Employment (Information) Act, 1994.

4. The claimant contended these changes were contrary to the commitment he had been provided with by the previous owner who advised at the time of the transfer that all the terms and conditions would remain the same. When the claimant spoke with a representative of the new owners seeking his 40 hours a week work he alleged he was told to f**k off.

4. He contended that he noted a reduction in his wages from 30^th June 2015 and when he sought to remedy this he was advised that he was paid by the hour which was contrary to his previous terms and conditions where he was employed full time on a 40 hour week basis. He provided records of payments at the hearing which shows he was consistently paid €422 net per week prior to the 30^th June 2015. He contended that when he provided the respondent with his previous payslips he was advised the matter would be sorted but this never happened.

4. The claimant contended that he experienced an increase in hours at the end of August as a colleague was on annual leave, but when his colleague returned his hours were reduced to 28 hours per week. He was also asked to work in another premises in Meath which he refused.

4. In October another colleague took leave which meant the claimant was provided with more hours, and he also went to work at the other premises in Meath as a kitchen porter as he required the wages. He contended that working as a kitchen porter was not in accordance with his contract, but he accepted the work as he wanted to help the respondent.

4. Complaint of Deductions in pay contrary to Section 5 of the Payment of wages Act 1991
5. From 30^th June 2015 the claimant maintained that he began working under the new owner. He alleged that he did not receive the correct pay after his first week of work with the new owner where his wages were reduced from €10.55 per hour to €10 per hour, and also he was rostered for less hours than he had been provided prior to 30^th June 2015.

4. Prior to 30^th June 2015 he contended that he worked a 40 hour week at €10.55 per week, and a gross pay of €500.65 per week.

4. The claimant maintained that he pursued the matter during August 2015 and he provided copies of e-mails he sent to the respondent where he outlined to the respondent that he was a full time employee and therefore was seeking an explanation of why he was now receiving less pay, and also why her was only receiving €10 per hour net but his wages were €10.55 per hour net. He contended that these e-mails remained unanswered. On 18^th August he was advised by the respondent that his wages were €10 per hour.

4. Complaint of being Unfairly Dismissed contrary to Section 6 of the Unfair Dismissals Act, 1977
5. The Claimant contended that he went on holidays in November 2015 and when he returned on 21^st November 2015 he was told by the respondent that he did not work for them anymore as they had somebody to replace him.
6. The claimant stated that he e-mailed the respondent on 23^rd November 2015 seeking to return to work but the respondent refused to accept him back. He received his P45 on 4^th December 2015. He advised that he was dismissed without notice and where no reason was given for his dismissal.

4. He advised that subsequent to his dismissal he has found part-time work.

5. Respondent’s Submission and Presentation:
6. The respondent did not make a written submission to the WRC, not did the respondent attend the hearing.

6. Decision:
7. 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.

6. Specifically I have to decide, in accordance with
7. Section 7 of the Terms of Employment (Information) Act, 1994 whether the respondent is in breach of Sections 3 and 5 of the Act by failing to provide the claimant with a written copy of his terms and conditions of employment contrary, and any subsequent changes to his terms and conditions of employment.

6. Section 6 of the Payment of Wages Act, 1991 as to whether the respondent made deductions from the claimant wages contrary to Section 5 of the Payment of Wages Act, 1991

6. Section 8 of the Unfair Dismissals Act, 1977 as to whether the claimant was unfairly dismissed in accordance with Section 6 of the Act.

6. Decision in relation to the complaint of a contravention of Section 3 and 5 of the Terms of Employment (Information) Act, 1994
7. Section 3 of the Act requires that an employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment

6. Section 5 of the Act requires that whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than…1 month after the change takes effect,

6. Section 10 of the Act requires that a decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5 or 6 shall do one or more of the following, namely—(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.]

6. Based on the uncontested evidence provided I find that the respondent failed to provide the claimant with written notice of his terms and conditions of employment, and also failed to provide the claimant of notice in writing of changes to his employment which included a reduction in his hourly rate of pay, a reduction in his hours of work, and in relation to a change of his work location an duties. Furthermore the respondent refused to respond to requests both verbally and by e-mail from the claimant and used inappropriate and offensive language to the claimant when he sought to clarify the details in relation to what may have changed in his terms and conditions.  

6. I therefore award the claimant four weeks remuneration at his rate of pay which was €500.65 gross per week prior to any of the changes being made.

6. Decision in relation to the complaint of a contravention of Section 5 of the Payment of wages Act 1991
7. Section 5(1) of the Payment of Wages Act, 1991 requires that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

6. Based on the uncontested evidence I find that the respondent deducted the claimant’s wages contrary to any such term in the claimant’s contract of employment, and without the written consent of the claimant. In accordance with Section 6 of the Act I determine that the respondent is to make good the wages of the claimant from 30 June 2015 up to 4^th December 2015 from what was paid each week to the sum of €500.65 gross to claimant which is estimated at €1,468.50.

6. Decision in relation to the complaint of being Unfairly Dismissed contrary to Section 6 of the Unfair Dismissals Act, 1977
7. Section 6 (1) of the Unfair Dismissals Act 1997 states the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

6. Section 6(6) of the Act further states in determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

6. Based on the uncontested evidence I find that the respondent summarily dismissed the claimant without any grounds. Furthermore I find the respondent did not provide the employee with any grounds for his dismissal and specifically failed to justify the dismissal under any of the areas identified in S(6)(4) of the Act, namely:

(a)    capacity, competence, or qualifications;

(b)   the conduct of the employee

(c)    redundancy

(d)   the employee being unable or unwilling to continue to work

6. Accordingly I find the dismissal was unfair and in accordance with Section 7 of the Act, and as the claimant has not incurred a significant financial loss as he found alternative work, I determine that the claimant is to be compensated four weeks wages to be calculated at €500.65 gross per week

Dated: 22^nd June 2016