ADJ-00003025

Complainant

Respondent

Anonymised Parties

Bar Assistant

Licensed Premises

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-00004198-001

03/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00004198-002

03/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00004198-003

03/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00004198-004

03/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00004198-005

03/05/2016

The complainant was employed as a bar assistant by the respondent commencing employment in June 2009. The employment terminated on 2 May 2016. The complainant worked on a part-time basis averaging 22 hours per week and was paid €10.00 per hour.

The complainant did not receive any Public Holiday entitlements since November 2010 when the bar re-opened following a fire. Prior to that €25.00 was paid if the complainant worked on a Public Holiday.

The complainant did not receive the required 24 hours notice of a change in her roster.

The complainant was not compensated for working on a Sunday.

The complainant was requested by text to work late just before she commenced the start of her shift on 18 April 2016. The complainant replied that she was unable to do so as she was a single parent and had to look after her son. The complainant spoke to her manager by phone who informed her that her roster was subject to change at any time and that circumstances now required her to work until 10.30pm. The complainant was stressed by this and said that it was not her understanding of the situation. The complainant informed the respondent that she could not work those hours and if it was a case that the respondent insisted on her doing so then she would have to hand in her notice. The complainant then stated that she was so stressed by the situation that she was going to the doctor. The complainant went straight to the doctor, got a sick cert and then went to the workplace and handed in the cert. She then went home and shortly afterwards received a phone text from the manager who stated that she understood that the complainant would be finishing her employment as of 2 May 2016. Her employment ended on that date.

The complainant never received a copy of a statement of her terms and conditions of employment.

The complainant’s remuneration rate of €10.00 per hour was in excess of the norm and reflected the Sunday Premium requirement.

In January 2016, during a staff meeting, staff were made aware of a particular arrangement that could arise at short notice that would require those on duty to work extra hours in order to cater for a large group of diners. On 18 April 2016 notice was received that the group required to be facilitated that evening. The complainant was notified by text in this regard. The complainant replied that she could not work the extra hours.   Management advised her by text that she was required to work following which the complainant spoke by phone to management and indicated that she would not attend work on that day. The complainant then proceeded to hand in her notice on the basis that the hours did not suit her. She provided two weeks notice to the respondent.   The complainant then submitted a medical certificate stating that she was suffering from stress.

The respondent denies that the complainant did not receive her Public Holiday entitlements.   Additionally the respondent was in receipt of an enhanced hourly rate that reflected the Public Holiday entitlement.

It is accepted that the complainant did not receive 24 hours notice of the requirement to work on the day in question. The Act however allows the employer, in circumstances that could not have been foreseen, to require an employee to work extra hours.

The respondent provided a copy of the respondent’s Terms and Conditions of Employment to her around September 2013. In July 2014 staff members were invited by NERA to make known any complaints that they might have and none were forthcoming.

The business of the respondent is a Public House / Restaurant. The respondent had entered into an arrangement with a sporting organisation whereby a large group of people would require to be fed after evening training and that relatively short notice might be given in this regard.   This arrangement was mentioned in January 2016 at a staff meeting. What was said by management in relation to the matter is disputed by the parties. The respondent stated that staff were advised that they would have to make themselves available for extra work when this event happened. The complainant said that staff were told that they would work extra hours if available to do so but that if they could not then a member of the owner’s family would provide cover. In evidence, the owner’s daughter, who was part on the management team, said that she was annoyed when she heard that the complainant had said that she could not work the extra hours as that meant that she (the daughter) would have to return to work to do those hours. This would seem to verify the complainant’s version of the conversation at the staff meeting.

As regards the issuing of contracts the respondent stated that, following a NERA inspection in 2013, contracts were prepared for all staff but that the complainant’s former husband, who was then an employee, took the complainant’s contract along with his own to have somebody look at them. The complainant, for her part, said that she had never been issued with a contract. The respondent could not produce a copy of the complainant’s contract because there had been a fire at the premises and they had moved office.

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

An employer shall, not later than two 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…

The onus is on the employer to prove in this case that they have given the required statement to the complainant and the respondent has failed to discharge that onus.

Arising from this there is also no evidence to show that Sunday premium payments or Public Holiday payments were included in the overall rate of €10.00 per hour. The direct evidence of the complainant was that she was informed that that sum was her hourly rate.

Complaint No. CA-00004198-001:

This complaint relates to the non-payment of Public Holiday entitlements. Section 21(1) of the Organisation of Working Time Act,1997, 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

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have the effect as if paragraph (a) were omitted therefrom.

As set out above there is no evidence that the respondent complied with the requirements of the law in this regard. I therefore find that this complaint is well founded. I note that there was a NERA inspection in 2013, however I can only consider the breach that occurred in the six-month period prior to the complaint being lodged. Having regard to all the circumstances I therefore require that the respondent pay to the complainant the sum of €400.00 as compensation in this respect. 

Complaint No. CA-00004198-002:

This is a complaint under the Organisation of Working Time Act to the effect that the complainant did not receive the required notice in respect of a change of working hours.

Section 17(2) of the Act states:

If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as he case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

Subsection (4) provides for an exception to the 24 hours notice “if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hors at those times.”

On 18 April 2016 at around 12.20pm, shortly before the complainant was due to commence a shift that was due to finish at 9pm, she received a text stating that the sports group were due in that evening and could she work late until 10.30pm.   Subsequent texts and phone calls resulted in management instructing the complainant that she had to work the additional hours.

The respondent relied on two issues in defending this claim. The first, referred to previously, was in relation to notice of the requirement having previously being discussed with staff. The second issue was invoking subsection (4), namely that unforeseen circumstances had arisen that required the complainant to work late. I have already indicated that I accept the complainant’s version of what was discussed at the staff meeting. In addition I cannot accept that unforeseen circumstances include events which were the subject of an arrangement entered into by the respondent some months previously. I therefore find this complaint to be well founded and require the respondent to pay the complainant the sum of €350.00 as compensation in this regard. 

Complaint No. CA-00004198-003:

This is a complaint under the Organisation of Working Time Act, 1994, in relation to the claim that the complainant was not in receipt of a premium payment for working Sundays.

The respondent stated that the premium was reflected in the enhanced payment of €10.00 per hour.   No copy of the complainant’s contract was produced in this regard. The complainant stated that she was told that her rate of pay was €10.00 per hour and no reference was made to premium payments for Sunday.

The Labour Court in Case No. DWT3/2010 stated: “some element of an employee’s pay must be specifically referable to the obligation to work on Sunday. The Court added that “it is for the respondent to show that when the Claimant’s rate of pay was established a specific element of it was intended to be in consideration of her obligation to work on Sunday.”

The respondent has failed to discharge the onus on them in this regard. I therefore find that this complaint is well founded and require the respondent to pay the complainant the sum of €400.00 as compensation in respect of this breach of their obligations under the Act. 

Complaint No. CA-00004198-004:

This is a complaint of constructive dismissal under the Unfair Dismissals Act, 1977. The Act defines constructive dismissal as:

The termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer…

The background is the request on 18 April 2016 by the employer that the complainant work late until 10.30pm that night. The request was received by text at 12.21pm. The complainant responded stating that she could not as she had to get home to her son. The complainant then received a text from her manager which said: “rota is subject to change and I have to change it till half 10 as E… can’t do it by himself. Sorry.” The complainant then phoned the manager and explained the situation to her.   The manager for her part insisted that the complainant had to work as requested. The complainant replied that if it was a case of the manager insisting that she (the complainant) had to work hours that she could not do then she would have to resign. The complainant also informed the manager that the situation was stressing her and that she was going to her doctor. The complainant went to her doctor straight away and got a cert to the effect that she was unfit for work due to “acute stress.” The complainant then went to her workplace and handed in the cert at about 1.40pm but did not speak to the manager. She then went home and at 2.14pm received a text from the manager   as follows: “Hey C….. I understand ur finish date is the 2 of May as per ur call earlier regarding Ur notice Ull be paid holidays and anything owed upto that date.” The complainant got a further medical cert which stated that she was unable to attend work due to “work related anxiety”. The complainant did in fact return to work for a few days but did not have any discussion regarding the termination of her employment with the owners before finishing up. The complainant collected her outstanding pay on 5 May 2016.

In considering a claim of constructive dismissal there are two tests which have to be considered, namely the contract test and the reasonableness test.   The contract test is based on whether the employer has breached a fundamental condition which goes to the heart of the contract. The reasonableness test considers whether the actions of the employer were so unreasonable that the employee was left with no choice but to resign. In this case it is argued that the actions of the employer in insisting that the complainant work hours which were changed at short notice and which the complainant explained were impossible for her to do because of family commitments as regards her son was such a breach of contract. What was said by the complainant in her telephone conversation with her manager was that if it was going to be the position that the employer was insisting that she was obliged to work hours that were subject to change at short notice and therefore was not in a position to work those hours then she would have to resign.   Less than two hours later, during which time there was consultation with the company accountant, the manager texted the complainant to say that 2 May 2016 was her termination date.   This can only be taken as the employer confirming that it would be an ongoing requirement for the complainant to accept that rotas could be changed at short notice and that the complainant would be required to work same regardless of family commitments. The respondent has argued that the working of extra hours was the subject of an agreement with staff some months previously but I have considered this matter as outlined in my initial remarks and do not accept that there was such an agreement. I therefore consider that the actions of the respondent in this case represent a significant breach of the terms of the contract.

Reference was made in the respondent’s submission to the fact that the complainant had resigned on two previous occasions but that these had been disregarded by the respondent.   No evidence was offered in this regard but if this assertion is taken at face value then why was the respondent in such a hurry to confirm and set the date of the complainant’s termination of employment, bearing in mind that the complainant had spoken of being under stress during her phone call and had then handed in a medical cert to that effect less than an hour beforehand?

A complainant would be expected to utilise existing grievance procedures before taking the decision to resign. In this case it would seem that despite an inspection by NERA some years prior to these events which uncovered fundamental breaches of legislation no significant steps had been taken to address the issues raised (including the issuing of contracts) and that there were no procedures to be referenced by the complainant in this regard.

Having carefully considered all of the submissions and evidence I have decided that the complainant succeeds in her complaint of constructive dismissal and I order the respondent to pay the complainant the sum of €9,500.00 as compensation in this regard.

Complaint No. CA-00004198-005:

This is a complaint that the complainant was not issued with a statement of her terms of employment as required by the Terms of Employment (Information) Act, 1994.

Section 3(1) of the Act 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….

The complainant stated that following the inspection by NERA in 2014 she saw a copy of a statement of employment but it was not given to her but was kept by the respondent.   As mentioned elsewhere the respondent stated that the complainant’s copy of the statement was taken by her former husband to give to someone to look over.   The respondent could not produce a copy of the statement providing a generic document only. It is accepted that there was an unfortunate fire at the premises of the respondent and some documents may have been mislaid. Nevertheless it is clear that the requirements of the legislation have not been met in this respect and I therefore find this complaint to be well founded and I require the respondent to pay to the complainant the sum of €650.00 as compensation in this regard.