ADJ-00001815

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001815

Complaints for Resolution:  

Date of Adjudication Hearing: 01/11/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 8(1B) of the Unfair Dismissals Act, 1977, and Section 79 of the Employment Equality Act, 1998, 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 6th January 2015 until the employment terminated on 7^th January 2016. The Complainant was paid €12.00 an hour and he worked 41 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment including the Grievance and Disciplinary Procedures of the Company.

The Complainant referred a number of complaints to the Workplace Relations Commission on 9^th February 2016 alleging the Respondent had breached the Terms of Employment (Information) Act, 1994 – had breached the Payment of Wages Act, 1991 – had breached the Organisation of Working Time Act, 1997 – had breached the Employment Equality Act, 1977 – had been unfairly dismissed by the Respondent.

The complaint under the Employment Equality Act was withdrawn at the Hearing.

Summary of Complainant’s Position.

Terms of Employment (Information) Act, 1994.

The Complainant stated that the Statement of Terms and Conditions of Employment furnished to the Complainant did not comply with Section 3 of the Act in that – the Employer’s name is incorrect – the job title is not included – the rate of pay or method of calculating same was not included – the hours of work were not specified – there is no reference to overtime and payment for overtime – no reference to payment for working on a Sunday – no reference to Public Holidays – no reference to breaks – there was no reference to being prohibited from working.

The Respondent did not comply with Section 5 of the Act when he sought to get the Complainant to again sign his Contract of Employment. He was not notified of this change.

Organisation of Working Time Act, 1977.

Section 27 (5) of the Act. The Complainant sought an extension of time on the basis that the Complainant is a non-national and was unfamiliar with Irish legal procedure.

Section 12. The Complainant stated that throughout the employment he did not receive scheduled breaks. His breaks were ad-hoc and were usually taken while standing and continuing to do his duties in the Kitchen. He would usually grab a sandwich. He raised this with the Manager on a number of occasions but to no avail. He noted that the female staff were all afforded specific scheduled breaks.

Section 14. . Complainant worked nearly every Sunday but he was not paid a Sunday Premium or any element of pay for working on a Sunday. There is no reference to a Sunday Premium in his Contract. He is seeking payment of time plus a half which would be usual for the Restaurant/Café and was part of the Employment Regulation Order which existed for this industry.

Section 19. The Complainant worked a total of 1989 hours in 2015 giving him 4 weeks annual leave or 160 hours entitlement. The Complainant according to payslips shows that the Complainant received a total of 105 hours and he is claiming a shortfall of 55 hours.

Section 21. The Complainant worked the following Public Holidays in the reference period covered by this complaint i.e. from 10^th August 2015 to 7^th January 2016 – The Complainant stated he did not work on 25^th/26^th January 2015 and 1st January 2016. He could not recall if he had worked the last Monday in October 2015.

Payment of Wages Act, 1991 The Complainant stated he was not paid his Minimum Notice entitlements on termination of his employment

Unfair Dismissals Act, 1977. The Complainant stated that in December 2015 he had been informed by a work colleague that she had been given a pay increase so he spoke to the Named Manager and sought an increase. He again raised the issue with both the Manager and the Owner. On 6^th January 2016 following the commencement of his shift he was called to a meeting with his Manager, named, He was given a form to sign which concerned payment for Public Holidays following a NERA inspection. He was to be paid €250.00 and required to sign that his Public Holiday entitlements had now been paid. The Manager also had a Contract of Employment on the table which he was required to sign When the Complainant questioned the re-signing the Contract he was informed he would have to sign it every year. The Complainant refused to sign and he was requested to leave work as he was not insured to work if he did not sign the Contract.

The Complainant left and arranged to meet with the Manager in a named location the following day 7^th January 2016. The Complainant went for advice to SIPTU. Both Parties met on 7^th January 2016 and the Complainant informed the Manager that following advice he was not required to sign. The Manger explained to him that he had to sign the Contract to be able to return to work. The Complainant raised a number of issues with the Manager – outlined at the Hearing – the Manager requested him to put any complaints in writing under their Grievance Procedure.

The Complainant texted later the same day to say he would sign the Contract and was returning to work. There was an exchange or texts and phone calls. They arranged to meet as the Complainant had put all his issues in an email to the Manager. They arranged to meet again the following morning on 8^th January 2016 and the Complainant presented a letter composed by SIPTU to the Manager. The meeting ended with the Manager asking the Complainant to leave and stating that he had no hours for him.

The Complainant contacted his Union Official. There was an exchange of correspondence between SIPTU on behalf of the Complainant and the Respondent.

The Complainant alleged that he was unfairly dismissed on 8^th January 2016.

The Complainant stated that he commenced further employment on 18^th January 2016, is paid €11.00 an hour and worked 37 hours a week... He stated he was in receipt of Jobseekers Benefit from the Department of Social Protection and was requested to forward a statement from the Department confirming this. The Complainant did not do so. The Complainant is seeking compensation. He is seeking compensation for current and prospective loss of €6754.36

Summary of Respondent’s Position.

Terms of Employment (Information) Act, 1994. The Complainant was provided with a written statement of Terms and Conditions of Employment signed and dated by both Parties on 6^th January 2015. The Employers name is on the contract and the job title of the Complainant also. His rate of pay was stated as €12.00 an hour and he was to be paid on a weekly basis in arrears. He was to be provided with a weekly roster of hours in advance

Organisation of Working Time Act, 1997.

Section 12 – The Complainant was afforded all his breaks along with all employees. There was a NERA Inspection – documents provided – which clearly shows there was no contravention by the Employer of Section 12 of the Act. The Complainant was provided with lunch each day paid for by the Employer and likewise all employees, including the Complainant are paid for all breaks. The timesheets, provided to the Hearing, also show that the employee’s entitlement to breaks was clearly set out on each timesheet.

Section 14. The Respondent did not pay the Complainant additional payment for working on Sundays. The Respondent argued that the Complainant received additional benefits, including meals, teas and coffees.

Section 19. The Complainant worked 1983 hours in 2015 and was paid for 20 annual leave days

Time sheets provided to the Hearing.

Section 21. Following the NERA inspection the issue of payment for Public Holidays was identified as an issue. Documents provided. The Complainant was paid €250.00 and payment was made on 20^th December 2015 and signed by both parties as payment for Public Holidays.

Unfair Dismissals Act, 1977

The Complainant has been working with the Respondent since January 2015. A meeting took place on 7^th January 2016 between the named Manager and the Complainant to renegotiate his Contract of Employment. These discussions had commenced in December 2015. During the January meeting the Complainant caused the meeting to finish abruptly by telling the Respondent to “f--- you and your job”. The Respondent accepted this statement as the Complainant terminating the employment. His outburst irreparably damaged the relationship between the employee and the Employer and the Respondent refused to accept a request from the Complainant the following day 8^th January 2016 to retract his resignation.

The Respondent argued that it was the Complainant who resigned from the employment, the Complainant was not dismissed.

Findings

Terms of Employment (Information) Act, 1994

Both Parties confirmed that the Complainant was issued with a written statement of his Terms and Conditions of employment signed and dated by both Parties on 6^th January 2015. The Complainant’s case is that the statement does not comply with Section 3 of the Act in that –

The name of the Respondent was incorrect. I find that the correct name of the Respondent is on the statement

The job title is not included. I find that the statement states the Complainant will be employed as an assistant.

The rate of pay or method of calculating not included. The Statement states the Complainant will be paid €12.00 an hour and that he will be paid weekly.

Hours of work not specified. The Statement states he was to be informed of his roster a week in advance.

No reference to overtime or payment for same. There is no requirement under Section 3 of the Act in relation to overtime.

No Reference to payment for Sunday Working. There is no reference to Sunday Working or payment of a Sunday Premium.

There is no reference to entitlements to Public Holidays. There is no reference to the Complainants entitlements under Section 21 of the Act although I note there was no complaint under the OWTA, 1997 in relation to this issue.

There is no reference to breaks.

Organisation of Working Time Act, 1977

Preliminary Issue.

The Complainant sought an extension of time to cover a further 12 months. The Complainant was afforded an opportunity to explain the delay. The argument advanced was that the Complainant was a foreign national and was not familiar with the Irish legislation.

Decision. I decide not to give an extension of time as the case law shows that ignorance of the law is not an acceptable reason for an extension of time.

Section 12. Both Parties confirmed at the Hearing that the Complainant was entitled to a lunch break and lunch each day paid for by the Respondent. There was no evidence presented by the Complainant that he did not avail of this daily paid lunch break and both parties confirmed that the Complainant was paid for each lunch break.

I find there is no breach of Section 12 of the Act.

Section 14. The law provides that where the Contract of Employment does not provide for payment of a Sunday Premium in circumstances where the Employee is required to work and the rate of pay does not encompass payment for working on Sunday then the Respondent is in breach of the Act. The evidence shows that the Contract of Employment was silent on payment for Sunday Premium and the rate of pay specified in the Contract was also silent as to whether this was to compensate for working on Sunday as argued by the Respondent. The evidence was that the Complainant worked most Sundays in the reference period 10^th August 2015 to January 2016.

I find that the Respondent has breached Section 14 of the Act

Section 19. I had requested both Parties to forward information to me post the Hearing. This was done and circulated to each of the Parties. The Complainant states that he was paid for 108 days annual leave up to January 2016 and is claiming payment of 55 hours due and not paid on termination of the employment. The Complainant was unable to remember when he had taken his annual leave.

The Respondent provided me with all payslips and accompanying rosters for the employment.

These show that the Complainant took and was paid for the following hours of annual leave –

14/6/2015            17 hours

9/8/2015              40 hours

16/08/2015         40 hours

23/08/2015         24 hours

18/10/2015         8 hours

1/11/2015            16 hours

8/11/2015            8 hours

22/11/2015         16 hours

13/12/2015         8 hours

10/1/2016            3 hours

The evidence from the payslips shows that the Complainant worked a total of 1983.8 hours. Therefore where an employee works in excess of 1365 hours a year the employee is entitled to 4 weeks annual leave. The evidence shows that the Complainant took and was paid for his annual leave entitlements during the course of his employment. There is no breach of Section 19.

Section 21 – Public Holidays. The evidence was that following a NERA Inspection the Respondent was found to have been in breach of Section 21 of the OWTA, 1977. The evidence shows that the Respondent paid the Complainant €250.00 in respect of Public Holidays owed and that the Complainant signed a statement to this effect.

As this issue has already been the subject of a NERA Inspection, I declare I do not have jurisdiction in relation to this complaint.

Unfair Dismissals Act, 1977

There was a total conflict between the Parties as to what happened on 7^th and 8^th March 2016 with the Complainant stating he was dismissed and the Respondent stating that it was the Complainant who terminated the employment. The evidence was that discussions had commenced between the parties in December 2015 and continued on 7^th January 2016 in relation to the plans for the Kitchen for 2016, Pay, annual leave and hours. The Respondent confirmed at the Hearing that the Complainant would not be allowed to work pending the completion of the discussions. However the Complainant was paid for 3 days, 6^th/7^th and 8^th January even though he did not work. Both Parties confirmed that the employment terminated on 8^th January 2016 without any agreement between the Parties as to which of the Parties had terminated the employment.

However there was no written evidence from either of the Parties in relation to the termination of the Employment. If the Respondent was of the view that the Complainant had terminated the employment then this should have been put in writing to the Complainant, asking him to confirm his resignation.

The Respondent at the Hearing then proceeded to explain that during their discussions in December 2015/January 2016 the sides were too far apart in relation to agreeing terms and conditions going forward. There had been a NERA inspection which resulted in instructions to the Respondent in relation to issues identified.

The Complainant stated that he did not claim Job Seekers Benefit and he also confirmed that he had commenced employment on 22^nd April 2016. Evidence of a Contract of Employment was provided post the Hearing.

I find that the Complainant was unfairly dismissed by the Respondent on 8^th January 2016.

Payment of Wages Act, 1991

This complaint relates to payment of Minimum Notice on termination of the employment.

I have found above that the Complainant was unfairly dismissed by the Respondent on 8^th January 2016. The Minimum Notice and Terms of Employment Act, 1973 provides for the payment of Minimum Notice, based on service, to an employee, on termination of the employment.

I find that the Complainant is entitled to payment of one week’s notice on termination of the employment.

Decisions 

Terms of Employment (Information) Act, 1994 CA-00002496-008-009

In accordance e with Section 41 (5) of the Workplace Relations Act, 2015 and in light of my findings above I declare this complaint is not well founded. Like wise there has been no breach of Section 5 of the Act.

Organisation of Working Time Act, 1977 CA-00002496-003-004-005-006

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and in view of my findings above I declare the complaint is well founded in part. I declare the Respondent has breached Section 14 – Sunday Premium -. I direct the Respondent to pay the Complainant compensation of €600.00 for breach of Section 14 of the Act between August 2015 and January 2016. This to be paid to the Complainant within 42 days of the date of this Decision.

Unfair Dismissals Act, 1977. CA-00002496-001

In accordance with Section 8 (1C) of the Unfair Dismissals Act, 1977 I declare this complaint is well founded. The Complainant was unfairly dismissed without recourse to fair procedures and natural justice and in breach of S.I. 146/2000.

The Complainant did not provide the requested information from the Department of Social Protection in relation to what if anything he claimed from the Department between January and 22^nd April 2016 when he commenced employment with a named employer.

The Complainant stated at the Hearing that he had commenced employment on 18^th January 2016, was paid €11.00 an hour and worked 37 hours a week. There was no evidence presented post the Hearing in relation to this employment and it’s duration.

I direct the Respondent to pay the Complainant compensation of €1000.00 within 42 days of the date of this Decision.

Payment of Wages Act, 1991 CA-2496-007

In accordance with Section 41 (6) of the Workplace Relations Act, 2015 and in light of my findings above I declare this complaint is well founded. I direct the Respondent to pay the Complainant one weeks wages on termination of the employment of €480.00, subject to any lawful deduction, within 42 days of the date of this Decision.

Rosaleen Glackin 

Adjudication officer 

Date: 07 February 2017