ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002611

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

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00003637-002	02/04/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00003637-003	02/04/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00003637-004	02/04/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00003637-005	02/04/2016

Date of Adjudication Hearing: 29/06/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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).

Complainant’s Submission and Presentation:

The complainant has not been paid for any annual leave taken and when she asked about this she was informed that it was included in her hourly rate. She has no written contract of employment and has never agreed to nor accepted this.

Since the start of my employment in 2008 the complainant has never been paid for Bank holidays. The complainant believes she is entitled to a proportional payment, or paid time off in lieu or additional time added to her annual leave - even if she has not been rostered to work on the day of a Bank Holiday.

Despite being employed for almost eight years the respondent has never issued the complainant with or asked her to sign a Contract, Terms & Conditions of Employment, Handbook or Job Description save for those provided following the grievances raised recently. The contract provided by the respondent in March 2016 was retrospectively drawn up, was not one that the complainant had ever seen before, was not signed by either party, and had specific terms and conditions which are in contravention of the complainant’s Custom & Practice and Implied Terms.

The respondent has attempted to make changes to the complainant’s implied Contract of Employment and Terms & Conditions of which she has worked under for the past 7.5 years. She was not informed about a removal of responsibility and has had her key-holder responsibility removed without explanation. Her position/status within the business operation has been reduced by the forceful change in her line manager (from always answering to the Business Manager to now reporting to a new Head Chef - recently employed by Owner) These changes have occured over the past number of weeks. The complainant’s job as Production Pastry Chef is being altered without any consultation and she feels that her position is under threat. The complainant has never worked Bank Holidays. She has always worked Tuesdays and Thursdays and between 12 to 18 hrs per week. The complainant has always been a Production Chef and not a Service Chef. Her function has always been to produce a set quantity of product, determined by her experience of almost eight years, and always under the guidance and direction of the many Head Chefs there have been over the years. She has always been flexible in carrying out additional duties and has carried out many other ad-hoc positions including administration and waiting tables where the need arose. However 'service' of food from the kitchen was never part of the complainant’s role.

Respondent’s Submission and Presentation:

The respondent did not attend the hearing but provided a written submission prior to the hearing.

Annual Leave: By agreement with all staff the hourly rate of pay was increased by 8% in lieu of holiday pay and this applies to the complainant.

Bank Holiday Payment: By agreement with the staff this is taken into account by other arrangements and the complainant has been compensated for her Bank Holiday entitlements. Staff are paid for breaks and not charged for meals.

Contract of Employment: A letter was issued to the complainant in March 2016 setting out the position regarding rosters and enclosing a copy of her Contract and Terms of Employment and a copy of the Employee Handbook.

Terms and Conditions: A minimal change in attendance is proposed in order to better match business requirements. It was decided to give the stock room key which the complainant had to the Head Chef as he would be in work first. The position of Pastry Chef has always been supervised / managed by the Head Chef. The role of Pastry Chef is not being altered and a proposal to minimally change attendance arrangements does not remotely constitute a threat. When Bank Holidays fall on Tuesdays or Thursdays the Head Chef should be consulted.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

Has the complainant received the correct payment in respect of Annual Leave as provided for by the Organisation of Working Time Act, 1997?

Has the complainant received her proper entitlement as regards Public Holidays as provided for by the Organisation of Working Time Act, 1997?

Was the complainant issued with a written statement of her terms of employment as provided for by the Terms of Employment (Information) A, 1994?

Was the complainant notified of changes to the statement of her terms and conditions of employment as provided for by the Terms of Employment (Information) Act, 1994?

Legislation involved and requirements of legislation:

Section 19(1) of the Organisation of Working Time Act, 1997, states:

Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to –

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)

Section 20(2) of the Act states:

The pay in respect of an employee’s annual leave shall-

(a) be paid to the employee in advance of them taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate…

Section 21(1) of the Act states:

Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay

Section 21(6) of the Act states:

For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by hi or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

Section 3(1) of the Terms of Employment (Information) Act, 1994, states:

An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment….

Section 5 (1) of the Act states:

Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by the employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –

(a) 1 month after the change takes effect…

Decision:

The complainant is employed as a Pastry Chef in a restaurant. She commenced employment in August 2008 and works between 12 and 18 hours per week over two days.

The employment relationship was good and the complainant was flexible as regards extra duties . Early on in the employment the then head chef suggested that as the complainant’s role was that of dessert production chef it would be better if she worked during the quieter times on Tuesdays and Thursdays and the complainant agreed to this. A few months ago changes were introduced including alterations in the complainant’s working arrangements and a revised roster. The complainant wrote to and met with the owner but felt that her concerns were not addressed. The change in relation to annual leave payment was introduced without discussion. In addition the complainant has never been paid for Public Holidays. The complainant does not work on Public Holidays. The complainant did not receive any statement in relation to her terms of employment until March 2016 and she has serious issues with that document.

Having carefully considered all the evidence before me I have reached the following decisions:

Complaint No. CA-00003637-002

I cannot accept the explanation offered by the respondent in their written submission as being compatible with the legislation and I therefore declare the complaint to be well founded. I require the respondent to ensure that the complainant receives payment for annual leave in accordance with the regulations under the Organisation of Working Time Act, 1997. In addition I require the respondent to pay the complainant €1,600.00 in compensation for this breach of the legislation.

Complaint No. CA-00003637-003

I cannot accept the explanation offered by the respondent in their written submission as in anyway justifying the non-payment for Public Holidays and I therefore declare this complaint to be well founded. I require the respondent to ensure that the complainant receives payment for Public Holidays in accordance with the regulations under the Organisation of Working Time Act, 1997. In addition I require the respondent to pay the complainant €800.00 in compensation for this breach of the legislation.

Complaint No. CA-00003637-004

I find that the respondent is clearly in breach of their obligations under Section 3 of the Terms of Employment (Information) Act, 1994 as no statement of the complainant’s terms of employment was given to her until March 2016 and a revised statement issued in May 2016. I therefore declare this complaint to be well founded and I require the respondent to furnish the complainant with a statement that fully complies with the provisions of Section 3 of the Act and that reflects the complainant’s established working arrangements. I also require the respondent to pay the complainant the sum of €750.00 in compensation for this beach of the legislation.

Complaint No. CA-00003637-005

The complainant has claimed that the respondent has attempted to change aspects of her working arrangements and duties without agreement. The specific complaint is under the Terms of Employment (Information) Act, 1994, which states that any changes to the specific particulars (as set out in the relevant sections of the Act) in a statement of terms of employment must be notified to the employee concerned within one month of the change taking place. Many of the issues referred to by the complainant such as key-holding, ordering, recipes, etc. are outside of the scope of this legislation. I therefore declare that his complaint is not well founded and it therefore fails.

Dated: 5^th September 2016