ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000975

Complaints for Resolution:

Date of Adjudication Hearing: 14/07/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, and 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.

The Complainant was employed from 27^th June 2012 until he terminated the employment on 28^th September 2015. He was issued with his P45 with a date of leaving as 20^th October 2015. The Complainant stated he was paid €579.00 gross per week. The Complainant referred complaints to the Workplace Relations Commission on 25^th November 2015 alleging the Respondent had breached Section 3 of the Terms of Employment (Information) Act, 1994, had breached Sections 14, 19 and 21 of the Organisation of Working Time Act, 1997 and a complaint under the Unfair Dismissals Act, 1977 – 2007 that he had been unfairly dismissed on 19^th November 2015.

The Complainant was also the owner of two Companies, one a Public House which was established on 30^th September 2015 and the second established in March 2015 was a food catering business and the Complainant provided food to his Employers Public House from this Company.

Summary of Complainant’s Position.

Terms of Employment (Information) Act, 1994 CA-000011117-001. The Complainant stated that the Respondent did not issue him with a written statement of his Terms and Conditions of Employment during the course of the employment.

Organisation of Working Time Act, 1997. CA-00001117-002-003-004.

Section 14. The Complainant was unable to provide any evidence to the Hearing in relation to what Sundays he had worked during the reference period covered by this complaint from 26^th May 2015 to 28^th September 2015

Section 19. The Annual Leave Year is from April 2015. The Complainant stated that he was paid for 2 weeks annual leave which he took from 14^th September 2015 to 28^th September 2015. He is claiming payment of a further two weeks which he stated he was entitled to on termination of the employment.

Section 21. The Complainant stated that he worked the 1^st June 2015 from 8pm to close and he was paid €811.00 gross that week. He stated he worked the 3^rd August 2015 from 9pm to close and he was paid €492.00 gross that week. He is claiming payment for two days in lieu.

Unfair Dismissals Act, 1977 – 2007 CA-00001117-005. The Complainant gave his evidence following the submission from the Respondent. The Complainant stated he was dismissed by letter dated 19^th November 2015 from the Solicitor for the Respondent. He stated that the Respondent had not applied fair procedures and natural justice in relation to his dismissal.

Summary of Respondent’s Position.

The Respondent stated that the Complainant was never employed as a Bar Manager in the Public House. He was involved in the provision of food/meals to the Pub through his own Catering Company. The Respondent worked closely with the Complainant to develop both businesses. He assumed the role of dealing with suppliers and making payment to them through the Company Accounts as authorised by the Respondent. The Complainant did some evening work behind the Bar but on 28^th September 2015 he terminated the employment. He was the only employee who was paid by Bank Transfer. He was a trusted member of staff and he authorised the wages that were to be paid to him each week. He then informed the Bookkeeper of the wages that were to be transferred to his Bank Account each week and she transferred this. The Complainant did not provide any evidence from the Roster to support the payslips which issued to him. The Respondent gave evidence that the Complainant authorised wages to be paid to him on 26^th July 2015 of €615.00 net although he had only worked one day that week. The Respondent further stated that the Complainant had authorised payment to him of €320.00 on 4^th October 2015 - €240.00 on 11^th October 2015 – €220.00 on 18^th October 2015 and €330.00 plus €350.00 Holiday pay on 25^th October 2015 although he had not worked since 28^th September 2015.

Terms of Employment (Information) Act, 1994. CA-00001117-001. The Respondent confirmed that the Complainant had not been provided with a written statement of his Terms and Conditions of Employment.

Organisation of Working Time Act, 1997. CA-00001117-002-003-004.

Section 14. The Complainant had not substantiated his complaint at the Hearing.

Section 19.The Complainant had been paid cash to cover his two weeks annual leave from 14^th to 28^th September 2015 and he also had authorised payment to his Bank Account of €350.00 holiday pay which had been paid.

Section 21. The Complainant at that time was authorised to determine wages due to him each week. He was paid for all hour worked and from the evidence since he was paid in excess

Unfair Dismissals Act, 1977-2007, CA-00001117-005. The Complainant terminated his own employment on 28^th September 2015 even though he continued to authorise payment of wages and holiday pay to himself until 25^th October 2015. The Respondent’s Solicitor did issue a letter to him on 19^th November 2015 in relation to a shortfall in the Company Accounts of €14,000.00 for the second quarter and a shortfall of €21,000.00 in the third quarter. Evidence was provided to the Complainant of cheques he had authorised to be paid on 13^th Oct 2015, 16^th October 2015 and 2^nd November 2015 payable to the Complainant’s own Company. This letter goes on to terminate the contract the Respondent had with the Complainant’s Company for the provision of food to the Respondent’s Public House. This is not a termination of employment letter. The Gardaí were informed.

Findings:            

Terms of Employment (Information) Act, 1994. CA-00001117-001. On the basis of the evidence from both Parties I find that the Respondent has breached Section 3 of the Act.

Organisation of Working Time Act, 1997. CA-00001117-002-003-004.

Section 14. This complaint was not substantiated at the Hearing.

Section 19. I find from the evidence presented that the Complainant was paid for two weeks annual leave to cover his annual leave from 14^th to 28^th September 2015. I note that he was also paid €350.00 holiday pay on 25^th October 2015, authorised by the Complainant himself.

Section 21. The Complainant did not provide any evidence to the Hearing that he had worked the two Public Holidays in question.

I find there is no breach by the Respondent of Sections 14, 19 and 21 of the Act.

Unfair Dismissals Act, 1997 – 2007. CA-00001117-005. The Complainant was not unfairly dismissed by the Respondent on 19^th November 2015. This termination relates to the termination of a commercial contract between two Companies, one owned by the Respondent and one owned by the Complainant for the provision of food to the Respondent. The evidence was that the Complainant terminated his employment on 28^th September 2015 although both Parties confirmed at the Hearing that the Complainant continued to authorise payment of wages to himself up to 25^th October 2015.

Terms of Employment (Information) Act, 1994. CA-00001117-001. In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. However in the particular circumstances of these complaints I decide not to award compensation to the Complainant for breach of Section 3 of the Act.

Organisation of Working Time Act, 1997 – CA-00001117-002-003-004. In accordance with Section 41 (5) of the Workplace Relations Act, I declare this complaint alleging breaches of Sections 14, 19 and 21 of the Act is not well founded.

Unfair Dismissals Act, 1977 – 2007. CA-00001117-005. In accordance with Section 8 (1) (c) of the Unfair Dismissals Act, 1977 I decide this complaint is not well founded. The Complainant’s employment was not terminated by the Respondent rather the Complainant terminated his own employment on 28^th September 2015.

Rosaleen Glackin

Adjudication Officer

Date: 24^th October 2016