ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001579
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00001992-001 | 17/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00001992-002 | 17/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00001992-003 | 17/01/2016 |
Date of Adjudication Hearing: 01/11/2016
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Attendance at Hearing:
By | Complainant | Respondent |
Parties | A Chef | A Café Owner |
Complainant’s Submission and Presentation:
The complainant worked as a chef in the Cafe for approx. 14 months. The staff finished up on Christmas Eve and were due to start back on January 6th 2016. The complainant received a text message asking her to attend a staff meeting on Tuesday 5th January. At the meeting the staff were told their jobs were gone and the owners were going to continue running the cafe themselves. The staff finished with immediate effect with no notice. |
The staff were called into a staff meeting on Tuesday 5th January 2016 and told their jobs were gone. The owners were going to run the cafe themselves. They would just serve Tea/Coffee sandwiches and they would buy in the cakes as there was no need for a chef. Less than 24 hours later the complainant got a call asking her to come in for a chat while nobody else was around. The complainant went to the cafe and was asked if she would go back for a few hours on the Saturday and maybe Friday to bake and make lasagne for the week. The owners offered to pay the complainant cash in hand for this and that it would bump up her Social Welfare money. The complainant’s husband called the owners that evening and told them that the complainant would not be working for cash in hand. They withdrew their offer. The owners took back on a waitress and put her on the books. They have 2 other staff members working back there too and have the cakes that the complainant used to bake on sale and are offering soup daily and 3 hot dishes. The complainant has seen this advertised on their board outside the cafe. The complainant feels that the owners did not tell the truth about closing the kitchen down. |
The staff were told on the 5th January that their jobs were gone and no notice or pay was given. |
Respondent’s Submission and Presentation:
2015 was the first year of trading for the owners in the café. It was a difficult year and over Christmas they reviewed the operation. The respondent decided to downsize to try and cut costs and trade on in a reduced format. They had to let four of their five staff go in order to stay afloat. The chef’s position has not been replaced. The cooking and baking that is required is done by one of the owners. The complainant was offered work for one day per week which she initially accepted but her husband then insisted that the complainant be paid her holiday pay in full before she would return to work. This was not possible at the time so the complainant’s husband said that she would not be returning.
The complainant was paid holiday pay of four weeks for the period from November 2014 to November 2015. There is an amount due which is calculated as 24 hours pay.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Issues for Decision:
Was the dismissal of the complainant an unfair dismissal under the provisions of the Unfair Dismissals Act 1977?
Was the complainant paid in lieu of the notice requirements as contained in the Minimum Notice and Terms of Employment Act 1973?
Did the complainant receive all monies due to her as provided for in the Payment of Wages Act 1991?
Legislation involved and requirements of legislation:
Section 6(1) of the Unfair Dismissal Act, 1977, states:
Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Section 6(4) of the Act states:
Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
the conduct of the employee,
the redundancy of the employee….
Section 4(1) of the Minimum Notice and Terms of Employment Act, 1973, states:
An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.
(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –
(a) if the employee has been in the continuous service of his employer for less than two years, one week….
The Payment of Wages Act, 1991, defines wages as :
any sums payable to the employee by the employer in connection with his employment, including –
any fee bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise…
Decision:
The complainant was employed as a chef in a café owned by the respondent. She commenced employment on 10 November 2014 and the employment terminated on 5 January 2016. The complainant worked 37.5 hours per week and was paid €404.45 gross.
The respondent and his wife had been trading in the café for just over a year and had found it difficult. They reviewed matters over the Christmas break. Both the business and personal accounts were in overdraft and money was owed to the Revenue Commissioners. It was decided to downsize the operation and have a reduced menu offer.
On 5 January 2016 the respondent texted the staff and asked them to come to a meeting that day. At the time the staff consisted of 1 Chef, 1 Kitchen Hand and 3 Waiting Staff. The meeting was advised of the decision and that consequently all but one member of the waiting staff would be let go with immediate effect.
The respondent’s evidence was that he subsequently approached those staff that had been let go and offered them what work that was available. In the respondent’s case he offered her one day’s work per week and stipulated that this would be paid on a cash basis as he could not run payroll through the bank account. According to the respondent this offer was turned down in a conversation that the complainant’s husband had with the respondent’s wife because there was holiday money outstanding. The complainant’s evidence was that the offer was refused because the hourly rate was reduced to €10.00 per hour but mainly because the respondent told her the payment was going to be into her hand.
The complainant’s other issue related to the fact that she became aware that the menu in the café had expanded and included hot dishes even though she had been informed that the kitchen operation was to cease. She believed that the member of staff who had been retained was now working in the kitchen and effectively doing her job. The respondent stated that the chef had not been replaced and that his wife did any cooking or baking required. Subsequent to the complaint being lodged this arrangement has continued and more staff have been employed on a part-time basis according to the needs of the business. Details of the working hours of the retained staff member were supplied and these averaged 13.25 hours per week over 26 weeks.
Having carefully considered all the evidence and submissions regarding these matters I make the following decisions regarding the complaints:
Complaint No. CA-00001992-001:
This complaint relates to the non-payment of money due in lieu of notice under the Minimum Notice and Terms of Employment Act, 1973. I find this complaint to be well founded and require the respondent to pay the complainant the sum of €404.45 as compensation in this regard.
Complaint No. CA-00001992-002:
This complaint relates to a claim of unfair dismissal by the complainant under the Unfair Dismissal Act, 1977. As noted above, one of the defences that an employer has in relation to a dismissal under the Act is that it was effected by reason of redundancy (Section 6(4)(c)). Section 7(2) of the Redundancy Payments Act states:
For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to-
the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or
the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise….
The evidence is that the food offer on the menu has been reduced and that there is certainly no requirement for a full-time chef. The overall payroll has been significantly reduced. The complainant stated that she believed that the kitchen would no longer be operational. The respondent’s position is that his wife can produce what is required in the way of cooked food. It would appear, however, that the complainant’s position has become redundant and that as a consequence her dismissal is not an unfair dismissal. I therefore find that this complaint fails.
Complaint No. CA-00001992-003:
This complaint relates to the non-payment of holiday pay due when the complainant’s employment was terminated. On the basis of the evidence presented to me in this regard, which is that the complainant received a total of 4 weeks paid holidays during her employment with the respondent and the calculations submitted by the respondent, I find this complaint to be well founded and having regard to all the circumstances require the respondent to pay to the complainant the sum of €350.00 as compensation in that regard.
Dated: 07 February 2017