ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003603

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

Date of Adjudication Hearing: 07/09/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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).

National Minimum Wage Act 2000

Preliminary Matter of Jursdiction

As the claimant was unable to provide evidence of compliance with Section 23 of the Act, I have no jurisdiction to investigate this element of the complaint.

Organisation of Working Time Act 1997

Summary of Claimant’s Position

The claimant was employed as an assistant /manager with the respondent from the 8^th.April 2013 – 13^th.May 2016.The claimant submitted the respondent was in breach of the Act for failing to facilitate her with work breaks and failing to facilitate her with her statutory entitlement to annual leave.On average the claimant worked 45 hours per week – her attendance pattern varied between the following rosters – 10.00a.m. – 3.00p.m., 9.00a.m. – 4.00p.m. and 7.00a.m. – 4.00p.m.During her working week , she submitted she received no rest breaks or lunch breaks – no cover was provided and she just ate on the hoof.

She submitted that she received no paid holidays in 2013 or 2014.In 2015 she got one week’s paid leave in April and August 2015 and 1 weeks leave in April 2016.When the claimant and her colleague confronted him about leave entitlements owed for 2015 , he gave part payment to her colleague and none to the claimant .When they challenged him he took her colleagues cheque , tore it up and asserted that he was not obliged to give them leave for 2015 as it was now 2016.

Summary of Respondent’s Position

The respondent did not attend and was not represented at the hearing.

Decision

On the basis of the uncontested evidence of the claimant, I uphold the complaint of a breach of Section 12 and require the respondent to pay the claimant €2,500 compensation within 4 weeks of the date of this decision.

On the basis of the uncontested evidence of the claimant , I uphold the complaint wit respect to holidays and require the respondent to pay the claimant €816.06 for holidays owed since 2015 and €3,000 compensation for persistent breaches of Section 19

Unfair Dismissals Acts 1977-2015

Summary of Respondent’s Position

The respondent did not attend and was not represented at the hearing.

Summary of Claimant’s Position

The claimant submitted that owing to an intolerable working environment she was constructively dismissed by the respondent.She was not afforded her statutory entitlements to annual leave or rest breaks and was treated without any respect.She was initially recruited to work 25 hours per week but her hours progressively increased without any pro rata pay increase.She submitted that her pay cheques frequently bounced and when she sought a cash payment , her boss threw the cash at her and she had to pick it up off the floor.She remained in the employment for as long as she did out of loyalty to her customers and she did not want to be unemployed.The respondent appointed 2 managers who nothing about the business.When the most recent manager was appointed in April 2016 , she said she withdrew her goodwill hours and that that “ was when my life became hell”.She asserted that she was put under enormous pressure by the manager and her boss resulting in several falls and mishaps.Ultimately her mental health was suffering and her doctor signed her off work on the 13^th,May 2016 owing to stress.Her GP advised her against returning to such a stressful work environment and she accepted her recommendation.While the respondent did text her on receipt of the sick certificates about organising cover she was unable to engage with him any further.

Decision

On the basis of the uncontested evidence and testimony of the claimant , I have concluded that the claimant has met the significant threshold required to demonstrate that she had no option but to terminate her employment owing to the conduct of the respondent. Consequently , I uphold the complaint of unfair dismissal and require the respondent to pay the claimant €5,000 compensation within 4 weeks of the date of this decision.

Dated:   24 November 2016