ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000899

Complaints for Resolution:

Date of Adjudication Hearing: 12/07/2016             

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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 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.

Background

The Complainant was employed from 1^st November 2007 until the employment terminated on 22^nd November 2015.The Complainant was paid €8.65 an hour and she worked a 40 hour week. The Complainant referred complaints to the Workplace Relations Commission on 7^th December 2015 alleging the Respondent had breached Section 3 of the Terms of Employment (Information) Act, 1994, that the Respondent had breached Sections 14, 19 and 21 of the Organisation of Working Time Act, 1997 and that she had been unfairly dismissed by her Employer on 22^nd November 2015.

Summary of Complainant’s Position.

Terms of Employment (Information) Act, 1994. The Complainant stated she had not been provided with a written statement of her Terms and Conditions of Employment at any time during the course of her employment

Organisation of Working Time Act, 1997. The complaints under the Organisation of Working Time Act, 1997 were withdrawn at the Hearing.

Unfair Dismissals Act, 1977. The Respondent presented his submission at the Hearing prior to the Complainant in accordance with the Act. The Complainant stated that she always rang in Sales on the Till. She stated she was called to a meeting at 2.30pm and she was informed a customer had made a complaint against her. Following the meeting at which she was requested to reflect on the issue she requested to speak to the Shop Manager and they went to the Car-Park to talk. She stated she did become angry and left the Shop but stated she had remained sitting in the seating area outside the shop. She stated she had sent texts to three people at 15.05 but there was no response. The Complainant confirmed at the Hearing that she did not attend for work the following day Wed 11^th November 2015 although she was scheduled to work.

She stated that some days later either on 14 or 15^th November 2015 an employee rang her to inform her that the Respondent wanted her keys returned. This was denied by the Respondent at the Hearing. She stated that she sent a further text on 22^nd November 2015 but there was no response. The letter from the Respondent in response was returned as insufficient address. This letter was subsequently given to the Complainant’s boyfriend who worked at a different shop and the Complainant confirmed at the Hearing that she had received this letter.

The Complainant was issued with her p45 with the date of leaving as 22^nd November 2015

Summary of Respondent’s Position

The Complainant had been issued with a one page contract of employment at the commencement of the employment – copy provided to the Adjudication Officer post the Hearing.

Organisation of Working Time Act, 1997. These complaints were withdrawn at the Hearing

Unfair Dismissals Act, 1977. The Complainant worked from Monday to Friday, a total of 7.50 hours each day. A customer made a complaint to the Shop Manager concerning an employee alleging that the employee was not registering sales on the cash register but would press the no sale button to open the till to get change. The CCTV on the Premises was viewed. The Respondent requested the Complainant to attend a meeting on 10^th November 2015 with the Shop Manager, the Owner and his wife present at 3pm. The facts were presented to the Complainant which she denied. She was requested to reflect on the issue and to respond to the Shop Manager. She was not accused of any wrongdoing but following up a complaint from a customer. The Complainant did speak to the Shop Manager later the same day at which she admitted she did not ring in sales in some transactions in the afternoon when the shop was busy but she stated she did when the shop was quiet. The Complainant became very angry, stormed into the Locker Room, collected her personal belongings and left the Shop and went home. This was witnessed by the Deli Manager. The Complainant sent text messages to the Shop Manager, the Owner and his wife at 15.15 the same day in which she apologised for her attitude but stating she was angry. The Complainant was scheduled to work the following day 11^th November 2015 but did not attend for work. The Respondent tried to contact the Complainant by phone and left messages, there was no response. The Complainant was not dismissed

The Respondent sent a text message dated 4^th December 2015 to the Complainant to inform her of her hours for the following week. The Complainant did not attend at work after 10^th November 2015. The Respondent received a letter dated 27^th November 2015 from the Complainant claiming she had been unfairly dismissed. The Respondent replied to the Complainant by letter dated 27^th November 2015 to confirm to her that her job was still available and to contact the Shop Manager concerning her roster. There was no response from the Complainant

The Respondent stated that he had been requested by a friend of the Complainant to issue her with her P45 and to leave it at another Shop of the Respondent and this was issued.

The Shop Manager gave the following evidence. A Shop customer made a verbal complaint to her concerning an employee who was not registering sales on the Till. The customer said this had occurred on a number of occasions. The Shop Manager brought this to the attention of the Respondent. A Meeting was called with the Complainant and she was informed of the complaint by the customer that she had been pressing the no sale button on the till. The Complainant denied this. She was requested to reflect on it and to revert to the Respondent

The Dell Manager became aware of the complaint and when the Respondent came into the shop he was informed of the complaint. The Complainant was called to a meeting at which the complaint was outlined to her and she was requested to go away and think about it. The Complainant became angry went to her locker and left the shop.

The named customer who made the complaint gave evidence at the Hearing. She stated that the Solicitor for the Complainant had rang her prior to the Hearing. She stated she worked in Offices across from the shop and would get coffees and snacks there frequently. She observed that an employee regularly engaged her in discussion when she was being served but she had observed that the employee did not ring in sales on the Till. She brought this to the attention of the Shop Manager. She stated she was never requested to make a written complaint but she was asked that if there was a complaint from the Complainant would she be prepared to be a witness and she had replied yes.

Findings

Terms of Employment (Information) Act, 1994. CA-00001311-001. On the basis of the evidence presented by the Respondent to the Hearing I find that the Complaint was provided with a one page statement of her terms and conditions of employment. This statement confirms the Complainants hours of work, that her wages would be paid into her Bank Account, her breaks while at work, that she would have a performance review once a year, if she had a grievance she was to contact her Manager, or Area Manager or the MD who was named, that a copy of the Grievance Procedure was available in the Office, her annual leave entitlement of 20 days, she would be paid for all Public Holidays and if she worked she would receive double pay, that she had a 3 month probationary period. However this Statement is not signed or dated by the Respondent as required by Section 3 (4) of the Act. Likewise the name of the Employee is not stated as required by Section 3 (1)(a) of the Act. The Address of the Respondent is not in the statement as required by Section 3 (1) (b) of the Act. The Place of work and the title of the employees job is omitted from the Statement as required by Section 3 (1) (c ) and (d) of the Act.

I find that the Respondent has breached Section 3 of the Act in relation to these omissions.

Organisation of Working Time Act, 1997. CA -00001311-002 and 003. These complaints were withdrawn at the Hearing.

Unfair Dismissals Act, 1977. CA-00001311-003. On the basis of the evidence presented at the Hearing, I find that a Meeting took place between the Complainant and the Respondent in relation to an allegation made by a customer in relation to the Complainant that she entered a no sales on the Till in relation to purchases made by the customer. The evidence from both Parties was that the meeting was very short and that the Complainant was requested to reflect on the allegations and to revert to the Respondent. There was no evidence presented at the Hearing or in any submissions that the Complainant was dismissed at the meeting held on 10^th November 2015. The Complainant and the Respondent both confirmed that the Complainant had been rostered for duty the following day 11^th November 2015 and both Parties confirmed at the Hearing that the Complainant did not report for duty either on that day or any other day thereafter. The Complainant offered no explanation at the Hearing as to why she did not report for work after 10^th November 2015.

The Respondent issued the Complainant with her P 45 on 22^nd November 2015 with a date of 22^nd November of leaving the Respondent. The Respondent stated that this was issued following a request on behalf of the Complainant. The Complainant denied this.

The Complainant sent a letter dated 27^th November 2015 to the Respondent who responded on 27^th November 2015 which was returned as insufficient address but was forwarded to the boyfriend of the Complainant and the Complainant confirmed at the Hearing that she had received this letter. This letter clearly confirms to the Complainant that she has not been dismissed and that her position is still available.

The Complainant referred a complaint of unfair dismissal to the WRC on 7^th December 2015.

On the basis of the evidence I find that the Complainant was not dismissed from her employment on either 10^th November 2015 or on 22^nd November 2015 when she was issued with her P 45 in circumstances where the Complainant had not reported for work from 11^th November 2015 although scheduled for work.

I find the complaint of unfair dismissal is not well founded.

Decision:

Section 41(5) 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(1)(c ) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Terms of Employment (Information) Act, 1994. CA-00001311-001

On the basis of my findings above and in accordance with Section 41 (5) of the Workplace Relations Act, 2015 I find that the Respondent has breached Section 3 of the Act in relation to specified omissions in the Statement issued to the Complainant. I direct the Respondent to pay the Complainant compensation of €500.00 for breaches of Section 3 of the Act, within 42 days of the date of this Decision.

Organisation of Working Time Act, 1997. CA-00001311-002 and 003. These complaints were withdrawn at the Hearing

Unfair Dismissals Act, 1977. CA-00001311-004. In accordance with Section 8 (1)(c ) of the Unfair Dismissals Act, 1977 and on the basis of my findings above where I found that the Complainant had not been dismissed, I declare the Complaint of unfair dismissal is not well founded.

Date     19^th September 2016