ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004731
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00006573-001 | 22/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00006573-003 | 22/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00006573-004 | 22/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00006573-005 | 22/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00006573-008 | 22/08/2016 |
Date of Adjudication Hearing: 04/01/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, section 7 of the Terms of Employment (Information) Act, 1994 and/or Section 13 the Industrial Relations Act, 1969 and or Section 25 of the Equal Status Act, 2000 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).
Attendance at Hearing:
By | Complainant | Respondent |
Parties | A Chef | A Hotel and Country Club |
Complainant’s Submission and Presentation:
CA -00006573 -001: I was hired on the 2nd of August and I never received terms and conditions of employment or a contract |
CA -00006573 -003: I was working in the kitchen when another employee was called in to the office to talk about roosters. When I heard the head chef tell another employee that myself would not be getting the extra hours because I was an AMERICAN |
CA -00006573 -004: On the day of 21 of Aug I had a serious family emergency I call my head chef at 11:55 2.5 hours before my shift was to start to call in sick because I had no one to watch my son when speaking with the head chef on the phone he was very angry with me and told me either to sort it out or come and collect my stuff. So I was forced to leave my son home alone. |
CA -00006573 -005: I was not told that money would be taken from my wages everyday for food cost whether you would eat or not |
CA -00006573 -008: I had asked the head chef to stop on a number of occasions calling me a f**g yank and if some thing was wrong it was the Americans fault |
Respondent’s Submission and Presentation:
CA -00006573 - 001
The Complainant does not have the required service (more than one month) to make this claim.
CA -00006573 - 003 & 008
Both these complaints have been referred under the Equal Status Act, 2000.
This Act does not apply to Employment relationships and the claim is misconceived.
CA -00006573 - 004
The Complainant resigned verbally on the night of the 21st August 2016. He attended work the following day and met the Head Chef and the Operations Manager. Issues relating to his alleged unsatisfactory work performance were discussed. His employment was terminated on Probationary grounds.
CA -00006573 -005
Pay Slips were provided to substantiate the Respondents position that there had been no salary deductions.
Decision:
Section 41(4) of the Workplace Relations Act 2015 and/or section 7 of the Terms of Employment (Information) Act, 1994 and or Section 25 of the Equal Status Act, 2000 and/or section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
Recommendation
Section 13 the Industrial Relations Act, 1969 requires a Recommendation under that Act.
Issues for Decision:
Are there well founded Complaints in CA -00006573 -001,003,004,005,008
Legislation involved and requirements of legislation:
Workplace Relations Act 2015, Terms of Employment (Information) Act, 1994 and/or the Industrial Relations Act, 1969 and of the Equal Status Act, 2000 and/or the Payment of Wages Act, 1991
Decision
CA -00006573-001
Terms of Employment (Information) Act, 1994 Section 2 (1) (b) apply. Section quoted below.
“This Act shall not apply to -
“(b) employment in which the employee has been in the continuous service of the employer for less than one month.”
The employment began on the 2nd of August and finished on the 22nd of August 2016 – a total of 20 calendar days.
Accordingly the exclusion applies. The claim cannot be considered.
CA -00006573 - 003 & 008
Equal Status Act complaints.
The claims are being made under Section 21 of the Equal Status Acts. This Act does not apply generally to Employment relationships.
Accordingly the complaints can not be considered in this case.
CA -00006573 – 005
Payment of Wages Act complaint.
Pay Slips produced in evidence did not show any deductions made as alleged by the Complainant. The Complainant did not contest the pay slips produced.
Accordingly the claim is not well founded and is dismissed.
Recommendation
CA -00006573-004
Unfair Dismissal under the Industrial Relations Acts
There was a considerable degree of ambiguity in the evidence regarding the key facts – the alleged resignation on the night of the 21st August and the meeting on the following day the 22nd August 2016. It was clear that the working relationship between the Complainant and the Head Chef had been difficult to say the least. All the key witnesses, save for the Complainant, did not attend the hearing
Procedurally the following issues were clear, the Complainant had never received any warnings as to his performance during probation and the meeting of the 22nd August did not appear to have allowed for any alternative explanations from the Complainant. The Complainant was not informed in advance that his employment could be ended by the meeting of the 22nd August. No Appeal against the decision to dismiss was allowed. It was accepted a priori that the Complainant had resigned the previous night.
Taking S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) as a touchstone, the dismissal in this case was procedurally unfair and the claim is allowed.
Redress:
I recommend that the Respondent pay the sum of € 250, (being approximately half of one week’s pay), to the Complainant as compensation for the Unfair Dismissal.
Dated: 05 April 2017