ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000876

Complaints for Resolution:

Date of Adjudication Hearing: 02/11/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, 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.

Background. 

The Complainant was employed from 30^th May 2013 until her employment was terminated without notice on 21^st September 2015. The Complainant was paid €11.00 an hour and she worked 32 hours a week. She was provided with a written statement of her terms and conditions of employment.

The Complainant referred complaints to the Workplace Relations Commission on 25^th November 2015 alleging that the Respondent had breached Section 5 of the Payment of Wages Act, 1991 in that she had not been paid minimum notice on termination of her employment – a complaint under the Organisation of Working Time Act 1997 in relation to Public Holiday entitlements and a complaint under the Unfair Dismissals Act, 1977 that she had been unfairly dismissed.

Summary of Complainant’s Position.

Organisation of Working Time Act, 1997

The Complainant stated that she worked the following Public Holidays but did not receive a day in lieu – New Year’s Day 2015 – St Patricks Day 2015 – Easter Monday 2015 – May, June and August 2015 Public Holidays.

Unfair Dismissals Act, 1977.

The Complainant stated that when her father became ill some 2 years previously she reached agreement with her Employer that she would not work a Wednesday or a Sunday as she was her father’s carer on those days. She stated that she was open to working an odd Sunday if requested to by the Employer. She stated that in 2.5 years she had worked 3 Sundays at the request of the Employer.

Her father died in April 2013 however her arrangements continued in that she did not work Wednesdays or Sundays.

She was assigned to work on Sunday 13^th September 2015 according to the Roster. She objected but the Employer was out of the country. Another Chef covered her for that day. However when she arrived for work on Monday 14^th September 2015 she noticed that she was rostered to work the following Sunday. The other Chef covered for her again on 20^th September 2015.

As her shift was ending on 21^st September 2015 at 3pm she was informed to attend a meeting with the Respondent. She was asked about her non-attendance for two shifts and her abusive attitude to the wages clerk, named. She stated that she was dismissed with immediate effect and she received a letter dated 24^th September 2015 terminating her employment – copy provided.

The Complainant stated that she had been in receipt of Job Seekers Benefit from the Department of Social Protection since her dismissal. She was requested to provide evidence of this but did not do so.

The Complainant stated that she had commenced employment on 29^th December 2015 working between 24 and 28 hours a week and she was paid €11.00 an hour. The Complainant was requested to provide evidence of this but did not do so, The Complainant is seeking compensation.

Payment of Wages Act, 1991.

The Complainant is claiming payment of her Minimum Notice entitlements on termination of her employment.

Findings.

On the basis of the evidence and on the uncontested evidence of the Complainant I decide as follows

Organisation of Working Time Act, 1997.

Section 41(6) of the Workplace Relations Act, 2015 provides that a complaint must be lodged with the WRC within the period of six months of the alleged contravention to which the complaint relates. This complaint was lodged with the WRC on 25^th November 2015, therefore in accordance with Section 41 (6) the period covered by this complaint is from 26^th May 2015 to 21^st September 2015.

There were two Public Holidays in this reference period namely 1st June 2015 and 3^rd August 2015. The Complainant stated that she worked these two Public Holidays but did not receive a day in lieu.

Unfair Dismissal Act, 1977.

The evidence shows that the Complainant did not attend for duty when rostered on 13^th and 20^th September 2015. However these two rosters were covered by another Chef. The evidence also shows that the Complainant was called to a meeting with the Respondent on 21^st September 2015 in relation to unauthorised absence over two Sundays. The Complainant on the evidence was not notified in advance of the matter to be discussed at this meeting.

The evidence shows that the Complainant was summarily dismissed without notice by letter dated 24^th September 2015. The Complainant was not invited to a Disciplinary Hearing nor was she afforded a right of appeal to her summary dismissal.

However this letter from the Employer refers to her Contract of Employment which provides that her “Hours of work are scheduled on a rota basis, with a shift pattern”. The Complainant was requested to forward her terms of employment but did not do so.

The letter dated 24^th September 2015 also refers to the Complainants failure to answer any questions at this meeting of 21^st September 2015 except to state “I do not work Sundays”. The Complainant did not dispute the contents of this letter at the Hearing.

I note that the Complainant was requested to provide a statement from the Department of Social Protection in relation to the dates she was in receipt of Job Seekers but did not do so. Likewise she was requested to provide evidence of her employment from December 2015 but again did not do so.

Payment of Wages Act, 1991.

Section 4(2)(b) of the Minimum Notice and Terms of Employment Act, 1973 provides that an employee who has been in the continuous employment of her Employer for two years or more and less than 5 years is entitled to payment of two weeks minimum notice on termination of the employment.

Decision. 

Organisation of Working Time Act, 1997 – CA=00001094-001

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare the complaint is well founded. The Respondent has breached Section 21 of the Act. I direct the Respondent to pay the Complainant the sum of €140.80 in respect of two Public Holidays on 1st June 2015 and 3rd August 2015 when she worked but was not given a day in lieu. This to be paid to the Complainant within 42 days of the date of this Decision.

Unfair Dismissals Act, 1977 CA-00001094-003.

In accordance with the evidence and my findings above I declare the complaint is well founded. The Respondent did not apply fair procedures to the dismissal of the Complainant on 24^th September 2015.

However Section 7 (2)(c) of the Act provides as follows -“…in determining the amount of compensation payable under this section regard shall be had to (b) the extent (if any) to which the said financial loss was attributable to the action, omission or conduct by or on employee”

In accordance with Section 8 (1)(c) of the Unfair Dismissals Act, 1977 and taking account of Section 7 (2)(c) of the Act I declare the complaint is well founded. I direct the Respondent to pay the Complainant compensation of €500.00 (five hundred euro) within 42 days of the date of this decision.

Payment of Wages Act, 1991 CA-00001094-002.

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare the complaint is well founded. The Respondent has breached Section 4 of the Minimum Notice and Terms of Employment Act, 1973.

I direct the Respondent to pay the Complainant two weeks in the sum of €640.00, subject to any lawful deductions, within 42 days of the date of this Decision.

Rosaleen Glackin

Adjudication Officer

Date:                     15 February 2017