ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002069

Complaints for Resolution:

Venue: Ardboyne Hotel, Navan, Co. Meath

Date of Adjudication Hearing: 01/03/2017

Workplace Relations Commission Adjudication Officer: John Walsh

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under Section 8(1B) of the Unfair Dismissals Act, 1977 and under Section 27 of the Organisation of Working Time Act, 1977 and under Section 3 of the Terms of Employment (Information) Act, 1994, 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 Respondent advised the parties present at the hearing that the company was dissolved at the end of October 2015 and that all creditors were paid.

The Complainant commenced employment in April 2000 and worked as a senior hair stylist with the organisation. She resigned from her employment on the 2^nd of October 2015. She was paid €330 per week for working 24 hours. She alleges that she did not get daily rest periods contrary to Section 11 of the Organisation of Working Time Act, 1977, that she did not get rest and intervals at work contrary to Section 12 of the Organisation of Working Time Act, 1977. She also alleges that she was constructively dismissed from her employment contrary to the terms of the Unfair Dismissals Act, 1977. She further alleges that she did not receive a written statement outlining her terms and conditions of employment contrary to Section 3 of the Terms of Employment (Information) Act, 1994.

She filed a complaint with the Workplace Relations Commission on the 14^th of January 2016.

Complainant’s Submission:

Complaint No. 1- CA-00002114-001 Section 11 of the Organisation of Working Time Act, 1977

This complaint relates to ‘daily rest period’ as outlined in Section 11 of the 1997 Act. Section 11 states;

‘An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.’

The Complainant withdrew this complaint when she realised that Section 11 of the 1997 Act had no relevance to her case.

Complaint No. 2 - CA-00002114-002 Section 12 of the Organisation of Working Time Act, 1997

This complaint relates to ‘rests and intervals at work’ as outlined in Section 12 of the 1997 Act.

Section 12(1) states

(1).‘An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her break of at least 15 minutes.

(2). ‘An employer shall not require an employee to work for more than 6 hours without allowing him or her break of at least 30 minutes. Such a break may include the break referred to in sub-section 1.

The Complainant’s representative stated that the complainant did not receive her rest and intervals at work over the reference period of her complaint. She brought this to the notice of the Respondent on an ongoing basis but nothing changed. The Respondent was in breach of Section 12 of the 1997 Act for not providing rest and intervals at work to the Complainant and should be compensated accordingly.

Complaint No. 3 CA-00002114-003                      Under Section 8 of the Unfair Dismissals Act, 1977

The following is a summary of the Complainant’s submission;

The Complainant’s representative stated that the Complainant had no choice but to resign from her employment because she was being pressurised by the Respondent to work extra hours over and above her contract hours since November 2014. The Complainant explained to the Respondent that she was unable to work the extra hours because of family commitments. However this did not stop the Respondent from continuing to put pressure on her to work the hours throughout 2015. The pressure took the form of advising her that she was not a team player and not supporting the organisation when it was under pressure. A part-time receptionist Ms. G also put pressure on her in relation to working extra hours but she also advised her why she was unable to do so. This pressure upset her and caused her to attend her GP.

On the 2^nd of October 2015, she asked to meet with the Respondent. The meeting took place in Starbucks and she decided to tell the Respondent that she was going to leave the Organisation if she didn’t sort out the harassment and the pressure that she was receiving at work. She told her that she was being treated badly at work because of the pressure to get her to work extra hours and that she didn’t want to leave the organisation but that she felt she had no other option. The Respondent advised her that she would accept her resignation and she got her to submit her resignation in writing. She wished her the best of luck and left. Two weeks later the salon closed and all of the staff were made redundant.

Complaint No. 4 (No Reference No.)  

Under Section 3 of the Terms of Employment (Information) Act, 1994

Section 3(1) of the Terms of Employment (Information) Act, 1994 states;

‘An employer shall, not later than two moths after the commencement of an employees employment with the employer give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employees employment, that is to say-…’

The Complainant’s representative stated that the Complainant never received a written statement outlining her terms and conditions of employment at any time during the course of her employment. This was in breach of section 3(1) of the 1994 Act.

Respondent’s Submission:

Complaint No. 2 - CA-00002114-002  Section 12 of the Organisation of Working Time Act, 1997

This complaint relates to ‘rests and intervals at work’ as outlined in Section 12 of the 1997 Act.

The Respondent’s representative stated that the Complainant did receive rests and intervals at work during the course of her employment and particularly over the reference period in question. The Respondent admitted that she did not keep records which would demonstrate that the Complainant received her rests and intervals at work.

Complaint No. 3 CA-00002114-003 Under Section 8 of the Unfair Dismissals Act, 1977

The Respondent’s representative outlined the following submission;

That she received a telephone call from the complainant on the 1^st of October 2015 requesting her to meet on the 2^nd of October. The meeting was arranged for Starbucks. She arrived at the meeting and the Complainant was in great form and they sat down and had coffee together. The Complainant advised her that she was leaving the Organisation to join a local competitor. The meeting that took place between them was very cordial and she wished her well. She requested her to submit her resignation in writing which she did. They parted in good spirits.

Complaint No. 4 (No Reference No.)  

Under Section 3 of the Terms of Employment (Information) Act, 1994

The Respondent representative outlined the following submission;

She was under the impression that the Complainant did receive a contract of employment when she joined the organisation. However she was unable to provide a copy of this contract at the hearing. She thought that she might have a copy of the contract in her office at home and requested the adjudicator to give her a week to see if she could find it. The adjudicator agreed to give her this period of time.

Findings:

Complaint No. 2 - CA-00002114-002 Section 12 of the Organisation of Working Time Act, 1997

This complaint relates to ‘rests and intervals at work’ as outlined in Section 12 of the 1997 Act.

The Respondent was not in a position to provide any records to show that the Complainant received rest and intervals at work in accordance with Section 12 of the 1997 Act. Therefore I find that this complaint is well-founded.

Complaint No. 3 CA-00002114-003 Under Section 8 of the Unfair Dismissals Act, 1977

There is a conflict of evidence between the parties in relation to what occurred at the meeting which was held on the 2^nd of October 2015. The Complainant accepts that she advised the Respondent at the meeting that she was leaving her job to join another hairdressing business. It was reasonable for the Respondent to accept that this was the reason that the Complainant was leaving her job and on that basis she sought the Complainant’s resignation. Based on the evidence presented at the hearing and on the balance of probability I find that this complaint is not well-founded and therefore fails.

Complaint No. 4 (No Reference No.)  

Under Section 3 of the Terms of Employment (Information) Act, 1994

The Respondent failed to provide a copy of the Contract of Employment to the Complainant at the hearing. She also contacted the office a week later to state that she couldn’t find a copy of the contract of employment.

Based at the evidence presented at the hearing I find that the complaint is well-founded.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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.

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaints in accordance with Section 12 of the 1997 Act.

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaints in accordance with Section 3 of the 1994 Act.

Complaint No. 2 - CA-00002114-002  Section 12 of the Organisation of Working Time Act, 1997

Based on the evidence presented at the hearing I find that the complaint is well-founded in that the complainant did not receive her rests and intervals at work over the reference period.

I order the Respondent to pay to the Complainant compensation in the sum of €1000 for breaches of Section 12 of the Organisation of Working Time Act, 1997.

Complaint No. 3 CA-00002114-003  Under Section 8 of the Unfair Dismissals Act, 1977

Based on the evidence presented at the hearing I find that the complaint is not well-founded and therefore fails.

Complaint No. 4 (No Reference No.)  

Under Section 3 of the Terms of Employment (Information) Act, 1994

Based on the evidence presented at the hearing I find that the complaint is well-founded in that the complainant did not receive a written statement outlining her Terms and Conditions of Employment at any time in line with Section 3 of the Terms of Employment (Information) Act, 1994.

I order the Respondent to pay to the Complainant compensation in the sum of €900 for breaches of Section 3(1) of the Terms of Employment (Information) Act, 1994.

The total sum of €1,900 should be paid to the complainant within 6 weeks of the date of this decision.  

Dated:   09/06/2017