ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004852
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-00006869-001 | 07/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00006869-002 | 07/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00006869-003 | 07/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00006869-004 | 07/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00006869-005 | 07/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00006869-006 | 07/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00006869-007 | 07/09/2016 |
Date of Adjudication Hearing: 15/11/2016
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 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).
Further correspondence was received from the parties following the hearing , with the final submission received from the respondent on the 2nd.Dec.2016.
Complainant’s Submission and Presentation:
I was working in my place of employment for a period of ten months. During that time I did not receive a written contract nor a statement of the terms and conditions of my employment despite repeated requests. |
I did not receive my agreed salary for the first four to six weeks of my employment. I was paid at a salary level equal to that of a barista while employed as manager. My employer purported to pay me the difference in salary level in lieu of holiday pay owed to me. As a result, I am owed either the difference in remuneration or remuneration equivalent to the holidays taken in line with statutory requirements. |
On Monday 11 July, my employer unilaterally altered my terms of employment. At 11am on the day in question I was informed by my employer that I was being demoted from my position as manager to waitress and that my salary would be reduced accordingly with immediate effect. A replacement manager was put in place within an hour of this notice, who my employer had interviewed without my knowledge a week previously. I was not subject to any disciplinary procedure beforehand, nor was I given any notice, written or otherwise, of this demotion in advance. I expressed my lack of consent to this change in the terms of my employment immediately. In addition, I wrote to my employer expressing my lack of consent and requested that formal notice be given to me along with the reasons for my demotion. To date, I have not yet received either of these. |
I was demoted from my position as manager in the cafe without being given any notice in advance. Furthermore, I was not subject to any disciplinary procedure leading up to my demotion. On 11 July I was told by a director of the company that a new manager would be coming in to replace me one hour in advance of her arrival and that my position was immediately redundant. To date I have not yet received any formal notice of my demotion, nor have I agreed to such. |
As I have not consented to my demotion and as I have not received notice of such, I am entitled to my agreed salary which my employer ceased to pay me from 11 July. During the period 11 July to 18 August, I received a weekly salary averaging €300, €130 amount lower than my agreed salary of €430. As there was no disciplinary procedure, notice or agreed change to the terms of my employment, and as I expressed my opposition to the changes outlined above, I am asking for remuneration equal to the disparity between the two salary levels for the aforementioned period. |
To date, I have not received any holiday pay, statutory or otherwise. My agreed holiday leave was a four week period over the leave year, none of which I received to date, despite requesting it as of 18 August, with a total gross payment amounting to €1,960. |
To date, I have not received payment owed for any public holiday from 13 November 2015 to the termination of my employment on 18 August 2016. In total this amounts to eight public holidays with a monetary value of approximately €785 gross. |
Terms of Employment (Information)Act 1994 Ref CA-00006869-001
Claimant’s Submission
The claimant was employed with the respondent from the 10/12/2015 to the 19th.Aug. 2016.She was initially employed as a waitress/barrista and was promoted to the position of manager for a disputed period of approximately 6 months.The claimant submitted the respondent was in breach of the Act for failing to furnish her with written terms and conditions of employment in accordance with Section 3.
Respondent’s Submission
The respondent did not dispute the claimant’s contention of failure to furnish her with a written statement but argued that the claimant had never sought a contract and would have been issued with a contract if she had asked for it.
Decision
On the basis of the evidence presented at the hearing , I am satisfied that the complaint is well founded and I have concluded that much of the conflict that arose between the parties over the course of the claimant’s employment , could have been avoided if she had been furnished with written terms in accordance with Section 3 of the Act.
I require the respondent to pay the claimant €1,000 compensation within 42 days of the date of this decision.
Payment of Wages Act 1991 Ref. CA00006869-002
Summary of Claimant’s Position
The claimant submitted the respondent was in breach of the Act for failing to pay her the manager’s rate of pay for the first 4-6 weeks of her employment.She asserted that the respondent purported to pay her the difference in salary level in lieu of holiday pay owed to her.
Summary of Respondent’s Position
The respondent refuted the allegation of a breach of the Act and submitted supporting documentation regarding the tenure of the previous incumbent in the post and the rates of pay made to the claimant from January 2016 onwards.
Decision
The claimant’s complaint was received on the 7th.Sept. 2016 – she commenced employment on the 10th.Dec.2015 and submitted that she did not receive the correct rate of pay for the first 4-6 weeks of her employment.As the claimant was unable to advance reasonable cause for the delay in making the complaint , I find the complaint is out of time and do not have jurisdiction to investigate the matter.
Payment of Wages Act 1991 RefCA-00006869-005
Summary of Claimant’s Position
The claimant submitted the respondent was in breach of the Act for failing to pay her the manager’s rate of pay from the 15th.July until the termination of her employment on the 19th.August 2016.She asserted the respondent had acted illegally in failing to give her notice of her demotion and failing to conduct any performance review and that accordingly she was netitled to the difference in pay between the barista rate and the manager’s rate for that period.
Summary of Respondent’s Position
The respondent denied a breach of the Act and submitted that she had been advised of performance issues at a meeting on the 23rd.May 2016 – when she was requested to come up with a plan of action to remedy the performance deficits but none materialised.It was submitted that as Directors of the company , they were left with no option but to offer the claimant another role within the company – it was contended that this request was made on the 11th.July 2016 and the claimant was provided with the full manager’s salary until the 15th.July 2016.
Decision
I have reviewed the evidence presented at the hearing as well as the documents submitted at and post the hearing. While I acknowledge that the claimant had significant issues regarding the manner in which her demotion was effected and communicated to her , I find that for the period in dispute she was no longer undertaking managerial functions and accordingly the manager’s rate could not be deemed to be wages properly payable.Consequently, I find against the claimant and do not uphold the complaint.
Terms of Employment (Information) Act 1994. Ref.CA-00006869-003
Summary of Claimant’s Position
The claimant submitted the respondent was in breach of the act for failing to notify her appropriately of her demotion from Manager to Barista in July 2016
Summary of Respondent’s Position
The respondent submitted the claimant was well aware of their concerns regarding her performance issues – that she was given an opportunity to come up with a plan of action but had failed to do so despite reminders from the respondent.
Decision
As the claimant was never furnished with a written statement in accordance with Section 3 , I cannot uphold a complaint under Section 5.Accordingly , the complaint must fail and I find against the claimant.
Minimum Notice and Terms of Employment Act, 1973 Ref CA-00006869-004
Summary of Claimant’s Position
The claimant submitted that at 11.00a.m. on the 11th.July 2016 , the respondent unilaterally altered her terms of employment when she was demoted from manager to waitress and a replacement manager was put in place an hour later.She asserted she was given no advance notice of this demotion and that she did not receive her statutory minimum period of notice.
Summary of Respondent’s Position
The respondent denied any breach of the Act and submitted that the claimant was given one week’s notice of the change in her employment status from manager to waitress.She was advised of the offer of the waitress role on the 11th.July 2016 and her new salary commenced one week later n the 18th.July 2016.
Decision
The claimant appears to have confused the matter of notice of her demotion with what she perceives an entitlement to statutory notice on termination of her employment. On the basis of the evidence presented I have concluded that the claimant terminated her own employment – while acknowledging the legitimacy of the industrial relations matters she averted to in her complaint form and at the hearing - and worked one weeks notice.In such circumstances I find the complaint is misconceived and consequently do not uphold the complaint.
Organisation of Working Time Act 1977 Ref CA-00006869-006
Summary of Claimant’s Position
The claimant submitted the respondent was in beach of the Act for failing to pay her holiday pay in accordance with her statutory entitlements.
Summary of Respondent’s Position
The respondent denied any breach of the Act and submitted that the claimant took 8 days leave during her tenure as manager.She took 2 further days while employed as a waitress.It was submitted that when adjusted on termination , she received a balance of €438.60 which was deposited in her account on the 31st.August 2016.
Decision
On the basis of the evidence presented at and post the hearing , I am satisfied that the respondent met their obligations under the Act and accordingly the complaint must fail.
Organisation of Working Time Act 1977 Ref CA-00006869-006
Summary of Claimant’s Position
The claimant submitted the respondent was in breach of the Act for failing to comply with the public holiday provisions of the Act.She asserted she was not paid for any public holidays during the course of her employment.
Summary of Respondent’s Position
The respondent denied any breach of the Act and submitted that for the majority of her employment the claimant was on a salary which was inclusive of public holidays.
Decision
I have reviewed the evidence presented by the parties and noted that the respondent was unable to produce working time records that comply with the provisions of the Act and was unable to produce any documentary evidence to support their contention that the claimant was paid for Public Holidays. Accordingly , on the balance of probabilities I am upholding the complaint and require the respondent to pay the claimant €545 for monetary loss and €350 compensation for this breach of the Act.Payment to be made within 42 days of the date of this decision.
Dated: 17 July 2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea