ADJUDICATION OFFICER DECISIONS

Adjudication Decision Reference: ADJ-00001615

Complaints for Resolution:

Date of Adjudication Hearing: 15th June 2016.

Workplace Relations Commission Adjudication Officer: Seán Reilly.

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015, Section 8 of the Unfair Dismissals Act 1977, Section 7 of the Terms of Employment (Information) Act 1994, Section 27 of the Organisation of Working Time Work 1997, 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 by the Respondent from 1^st June 2014 to 28^th July 2015 and her weekly rate of pay was €241.85c.

Preliminary Issue.

The complaints were presented to the WRC on 27^th January 2016, and in accordance with the provisions of Section 41(6) of the Workplace Relations Act 2015 the normal relevant period under consideration for the purposes of the complaints would be 27^th July 2015 and this is just one day before the Complainant’s employment terminated.   While this does not present a problem with the complaints under the Unfair Dismissal Act and the Terms of Employment (Information) Act it would present problems with the complaints under the Organisation of Working Time Act.     However the Complainant made submissions that in accordance with the provisions of Section 41(8) of the Workplace Relations Act 2015, the failure to present the complaints within that normal 6 month period was due to reasonable cause that justified extending that period by a further 6 months.

The Complainant said that her Mother died just 3 days after her dismissal and that this drove the matter out of her mind as she was stressed out by her Mother’s death and that she was not in a position to either take advice or submit her complaints for some time due to that fact.    

Substantitive Issues:

Summary of Complainant’s Position:  

The Respondent had submitted a letter in which he stated that he was not the Employer of the Complainant , he said that at the relevant time he was the Supervisor only.   The Complainant and her representative denied this and said that the named Respondent was in fact her Employer at the relevant time.

Unfair Dismissals Acts.    

The Complainant said that on 28^th July 2015, she got a text message from the Respondent (she said this was his regular method of communication with her) in which he stated:

“All staff and hours has change.   Only need 2 part-time staff after this week.   But if there are any hours comes up and you are available, I will do my best to fit you in.   Thank you for your co-operation and I left your P45 in the Shop and I will give you text for your holiday pay.   I am in Dublin and will sort out with Accountant.”

The Complainant said that her Mother died 3 days later.

The Complainant said she wrote to the Respondent 3 times in relation to her dismissal, but he did not reply to any of her letters.   She said she could get him on the telephone and he did not reply to her texts.

The Complainant said there was no good or valid reason for her dismissal and she said that she was not the employee with the shortest service.

The Complainant said that fair procedures were not observed by the Respondent in effecting her dismissal and she said the Respondent refused to respond to her attempts to contact him to discuss her dismissal and she was not afforded any opportunity to put any alternative proposals to the Respondent.

The Complainant said that it was clear that she was unfairly dismissed and she sought a finding and decision to that effect.

Terms of Employment (Information) Act 1994:                                                                                              .

The Complainant said that the Respondent had never, at any stage during her employment, provided her with a written statement of the particulars of her terms and conditions of employment as required by Section 3 of the Act and she sought redress in the form of compensation as provided for in Section 7 of the Act.

Organisation of Working Time Act 1997                                                                                                          

The Complainant said that she did not receive breaks at work during the working day in accordance with the provisions of Section 12 of the Act.

The Complainant said that she worked a combination of shifts depending on whether she worked weekdays or weekends as follows:

• From 10.00am to 6.00pm, i.e. a period of 8 hours
• From 10.00am to 3.00pm, i.e. a period of 5 hours
• From 1.00pm to 6.00pm, i.e. a period of 5 hours

The Complainant said that if there was a relief worker available when she worked the 8 hour shift she would get a one hour lunch break, however frequently there was no relief worker available and she got no break.   She said that on the other two 5 hour shift she received no break.   The Complainant said there were no arrangements in place for the taking of breaks.

The Complainant sought redress in the form of compensation in accordance with the provisions of Section 27(2) of the Act for these breaches of her rights.

Summary of Respondent’s Position:

The Respondent was not present or represented at the Hearing.   The Respondent did send a letter to the WRC dated 18/03/2016, in which the Respondent claimed that he was a “Supervisor only at the time of the employee complaint etc.” However the Respondent sent no submission in relation to the substantive issues of the complaint.    

Findings and Decisions:

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.

Section 8 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.

Section 7 of the Terms of Employment (Information) Act 1994, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under the same Section of the 1994 Act.

Section 27 of the Organisation of Working Time Act 1997, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under the same Section of the 1997 Act.

I note that despite having been notified in writing of the time, date and location of the Hearing, the Respondent was not in attendance at the Hearing.   Accordingly I only have the evidence and submissions of the Complainant to rely upon in these matters.

I find that based on the uncontested evidence of the Complainant each of the complaints under the 3 Acts are well founded and they are all upheld.

The following are my decisions in the complaints under the 3 Acts.

Unfair Dismissals Act Acts 1977 – 2007: CA-00002221-001:                                                 .                              

Based on the uncontested evidence of the Complainant, I find and declare the Complainant was unfairly dismissed by the Respondent, accordingly I declare that her complaint under the Act is well founded and it is upheld.

In considering the appropriate redress I have taken into account all relevant factors, including the views of the Complainant as expressed at the Hearing and I have concluded that in the instant case there is an absence between the parties of the minimum level of trust necessary to sustain an employer/employee relationship and that accordingly the only appropriate redress is compensation in the instant case.

In accordance with the provisions of Section 27(3) of the Act I declare that the Complainant was unfairly dismissed by the Respondent and I require the Respondent to pay the Complainant compensation in the sum of €6,000.00c (say six thousand euro) within 6 weeks of the date of this decision.

Terms of Employment (Information) Act 1994: CA-00002211-002:                                             .                                      

Based on the uncontested evidence of the Complainant I find and declare that the Respondent failed to provide the Complainant with a written statement of the particulars of her terms and conditions of employment in accordance with the provisions of Section 3 of the Act and accordingly I declare that her complaint in that respect is well founded and it is upheld.

In accordance with the provisions of Section 7(2) of the Act I declare that the complaint in relation to written statements under Section 3 of the Act is well founded and it is upheld and also in accordance with the provisions of the same Section of the Act I require the Respondent to pay the Complainant compensation in the sum of €600.00c (say six hundred euro) within 6 weeks of the date of this decision.

Organisation of Working Time Act: CA-00002211-03:                                                                  

Preliminary Issue:                                                                                                                                              

I am satisfied that the failure to present the complaint under the Act at an earlier stage was due to reasonable cause in that the Complainant was not in a position to take advice or complete the necessary forms to submit or present her complaint at an earlier stage due to the death of her Mother, accordingly and as provided for in Section 41(8) of the Workplace Relations Act I am granting an extension of the normal 6 month time limit for the presentation of complaints and the period under consideration for the purpose of the instant complaint is from 27^th January 2015 to 28^th July 2016 (the date the employment terminated).

Substantive Issue:                                                                                                                                 

Based on the uncontested evidence of the Complainant I find and declare that the Respondent failed to provide the Complainant with rests and intervals at work (breaks) in accordance with the provisions of Section 12 of the Act and accordingly I declare that her complaint in that respect is well founded and it is upheld.

In accordance with the provisions of Section 27(3) of the Act I declare that the complaint under Section 12 of the Act in relation to rests and intervals at work (breaks) is well founded and it is upheld - also in accordance with the same Section of the Act I require the Respondent to pay the Complainant compensation in the sum of €750.00c (say seven hundred and fifty euro) for these breaches of her rights under the Act within 6 weeks of the date of this decision.

Seán Reilly, Adjudication Officer

Dated: __12^th September 2016