ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001578

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

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00001991-001	17/01/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00001991-002	17/01/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00001991-003	17/01/2016

Date of Adjudication Hearing: 22/11/2016

Workplace Relations Commission Adjudication Officer: John Tierney

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 27 of the Organisation of Working Time Act 1997 and/or section 6 of the Payment of Wages Act 1991] 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:

I was employed as a waitress/barperson when the Respondent purchased the premises from the Receiver on the 12th June 2015. Prior to the Purchase, the business had ceased serving food and all of my shifts were as a shop assistant in the grocery shop/off licence attached to the premises. I signed a new contract with Respondent on the 15th of June 2015 for the position of Barperson/waitress and for €12 per hour. I was assured by them that I would be given four ten hour shifts, with three days off, as a waitress/barperson when the new Business recommenced serving food. This suited my personal family circumstances. When the food recommenced I was initially given some bar shifts to cover for a staff member, who was on annual leave. When he returned from holidays I was taken off the bar roster and placed back on the shop/off licence roster with lesser hours. On Tuesday the 28th of July 2015 I took in a forged €50 note from a customer. I notified one of the Respondents of my mistake and apologised as it was an obvious forgery, she told me not to worry as these things happen. Sometime later the other Respondent came into the shop and examined the €50 note. He kept shaking his head in disbelief that I accepted it and said words to the effect that his six year old child wouldn't have taken the note in. I repeated my apology to him. I was growing uncomfortable and asked him to stop speaking to me like I was a two year child. I said that I had apologised to his partner and I thought the matter had been dealt with. He repeated his statement about his six year old child not making such a mistake and I retorted by saying neither would my daughter make such a mistake. He said something further to me, which I did not hear as I had turned away. When I did not reply he raised his voice and asked me to answer him when he was speaking to me. I said I would not answer him when he spoke to me in that manner. He came behind the counter and shouted at me to answer him. I protested at his manner towards me as a forty five year old woman. He said that I was able to answer him the previous week when I said words to the effect that he didn't care about my situation when I had to ask for some cover to allow me takes a coffee and toilet break from the shop having worked for five continuous hours from the start of my shift. He then stated that he should have sent me home over the incident. I said it was obvious that he did not want me working there. His response was to shout at me that he was trying to run a business. I was emotional at that stage and gathered my bag. He was standing behind the counter as I left and I told him I thought he was a bully. There was no further communication between me and my Employer received my P45, which stated my date of cessation was 1st August 2015. I apply for relief as a result of a breach of section 6(1) of the Unfair Dismissals Act 1977.

When I was working in the off licence It was difficult to get someone to cover me for breaks and they often went untaken or were shortened. I often worked over 4 and a quarter hours without being able to take a break

My Employer did not pay me in lieu of my notice entitlements as due to me from the date of commencement with the original owner in October 2011

The Claimant also claimed that there were no fixed breaks and she could work for six hours without a break.

Respondent’s Submission and Presentation:

The Respondent outlined the history of the taking over of the business. He totally refuted ten hours shifts were part of the business and that none of the staff worked these hours including the Claimant.

He recounted the incident of the forged €50 note. He claimed that the Claimant became agitated and indicated that she was ‘leaving the premises’ and got her belongings. The Respondent stated to the Claimant ‘you do know what you are doing?’ The Claimant left the premises and did not attend for work the next day. The Respondent stated that she had walked off the job.

He subsequently received as text from the Claimant seeking among other things her P45.

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.

I have considered the submissions of both parties. The Claimant retained the context of the text she sent to the Respondent after she had left. It did not contain any request for her P45. In regard to the incident between the parties over the forged €50 note both parties contributed to how it deteriorated. The Respondent as an employer behaved disrespectfully to the Claimant and did not handle the matter in a professional manner given his position. Equally so, the Claimant walked off the premises but more importantly did not return. Neither party invoked the grievance/ disciplinary procedure.

Had the Respondent bothered to write to the Claimant to ascertain if she had resigned or offered to resolve the matter, then these matters would not be where they are now.

In dealing with the question of breaks, the Respondent did not present any records in regard to the Claimant breaks as he is required to do under the 1994 Act. I therefore accept the Claimant’s evidence.

In regard to the claim under the Payment of Wages Act, this refers to Claimant’s entitlement to notice. This Act deals with ‘wages properly payable’ which I will determine if this is the case.

Reference CA 1991 -001

Under the Unfair Dismissals Act, I consider that the Respondent contributed greatly to how the situation deteriorated in his attitude towards the Claimant, causing her to leave the premises on the day. I therefore find the claim well founded in part and award the Claimant €4,000.00 in compensation for lack of fair procedure in dealing with the matter.

Reference CA 1991-002

As regards the claim for lack of proper breaks under the Organisation of working time Act, I am satisfied that the Claimant was not afforded regular breaks as required by this law. I therefore award €2,000.00 in compensation.

Reference CA 1991-003

Although, the Respondent sent the Claimant her P45 within days of her leaving the premises on 28 July 2015, equally so neither did the Claimant present herself for work. Therefore under the terms of the Payment of Wages Act I do accept that there are ‘wages properly payable’ in regard to this claim.

Dated: 5^th April 2017