ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001260
Complaints/Disputes 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-00001691-001 | 29/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00001691-002 | 29/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00001691-003 | 29/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00001691-004 | 29/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00001691-005 | 29/12/2015 |
Date of Adjudication Hearing: 29/03/2016
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 Head Chef from 5th May 2014 to 8th December 2015. She worked 38 hours per week and was paid €432.00 per week.
1) CA 1691-001 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 Sectin 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. |
|
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 €1,250 within six weeks of the date below.
2) CA 1691-004, 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 entitlement. She didn’t have representation.
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 Head Chef. 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 8.30am to 8.00pm, some days more than that. At times she got the 15 and 30 minute breaks however the 15 minute breaks were often not given.
b) Public Holidays In respect of the June, August and October Public Holidays the 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 20 Sundays, no premium was given, she was paid the same rate as when she worked Mondays to Saturdays. |
|
|
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 smoke breaks. They do not have records of breaks. They observed staff taking their breaks.
b) Public Holidays The Company Auditor confirmed in writing that her “Bank Holiday pay was included in the cessation pay, although it wasn’t shown separately”.
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 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 and that compensation of €300 (three 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 €21.60 per Sunday worked amounting to €432. |
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 €604.80 (€172.80 + €432) for the economic loss and in addition compensation of €500 (€300 for breaks, €100 for Public Holidays, €100 for Sunday premium) 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 1691-002 Unfair Dismissals Acts
The issue of dismissal is in dispute.
Complainant’s Submission and Presentation:
The Complainant stated that on her day off she was contacted to try get cover for wash up as they were very busy. She could not get hold of anyone so went in herself to do it. When she raised issues about Health and Safety (fan in kitchen, it was very warm there) which she had done on many occasions previously. She was shouted at by the Owner to leave. She left and she didn’t have any more contact with the owner till she requested my P45 which she needed for Dept of Social Protection. | |
| |
| |
| |
| |
|
Respondent’s Submission and Presentation:
The Respondent stated that she had no recollection about being asked for the Complainant to attend work on her day off. When the Complainant arrived at work she switched the kitchen fan up to 5, the norm is 3. She said to the Respondent “Are you trying to kill me”. A response was given “if you can’t stand the heat get out of the kitchen”. She left the kitchen and didn’t return. They did not contact her. They had heard that three employees who were related were planning to leave together and leave them “high and dry”.
When they looked for the P45s they then believed that they were all leaving together. The Respondent stated that it would be madness to get rid of the Head Chef and two others in mid-December. There was no dismissal.
Findings
I note that the Complainant had been working there for over a year and one half and she held the position of Head Chef.
I find that in the circumstances I would have expected a Head Chef would be able to deal with what looks like a misunderstanding, a minor one in fact.
I find it unusual that the Complainant was not able to deal with the comment about taking the heat. Kitchens can be very robust places at times.
I find it most unusual that the Respondent did not make it their business to contact the Complainant.
I note that the Respondent assets that they had been told that all three persons related to each other were planning to leave.
I note the conflict of evidence in this case.
On the balance of probability I find that no dismissal took place.
I find that the Complainant left her place of work and did not return.
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.
I have decided that there was no dismissal and that this claim is not well founded.
4) CA 1691- 003 Minimum Notice and Terms of Employment Act
Complainant’s Submission and Presentation:
The Complainant stated that she was summarily dismissed. She was given no notice period what so ever and was just told to leave. |
|
|
|
|
|
Respondent’s Submission and Presentation:
The Respondent stated that no dismissal took place. She left her job and did not return to work. The claim is rejected.
Findings
I refer to my decision in the Unfair Dismissal claim set out above in case CA 1691-002 where I found that no dismissal had taken place.
Therefore I find that as no dismissal has taken place there is no entitlement to minimum notice.
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.
I have decided that this claim fails for the above stated reasons.
Eugene Hanly
Adjudication Officer
Dated: 17 May 2016