ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004846

Complaint(s):

Date of Adjudication Hearing: 16/01/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 27 of the Organisation of Working Time Act, 1997, 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).

 Background:

Summary of Complainant’s Case:

CA-00006888-001: Breach of Section 14 Sunday Premium of the Organisation of Working Time Act, 1997

The complainant advised that he was required to work on Wednesdays to Sundays where on average he worked a 12-hour day for approximately 4pm to 4 am. Typically the bar would close at 3am and he would not be finished his work on till 3:45am. The Complainant maintained that he did not receive premium pay for his Sunday work.

CA-00006888-002: Breach of Section 12 Rests Breaks of the Organisation of Working Time Act, 1997

The claimant contended that there were no rosters or assigned rest breaks and he was not able to leave the premises for a walk or for a break. He started work at 4pm and would have to get the bar ready. The Respondent maintained that he only had an opportunity to take a short 5 minute break at times to eat a roll that he would bring to work.

CA-00006888-003: Breach of Section of the Terms of Employment (Information) Act, 1994

The Complainant argued that when he took up employment he did not receive any statement in writing containing the particulars of his terms of employment, and he was never provided with them.

CA-00006888-004: Breach of Section 4 of Minimum Notice & Terms of Employment Act, 1973

The Complainant contended that he received a text from the Respondent on 16^th May 2016 when he was on annual leave advising him there was no further work for him. As a consequence, he did not receive the required notice period, or payment in lieu of his statutory notice of one week.

CA-00006888-005: Breach of Section 6 of the Unfair Dismissals Act, 1977

The Complainant argued that he was Unfairly dismissed in that the Respondent had other employment, and that whilst the Complainant offered to work for a lower wage the Respondent ignored this and unfairly dismissed him. The   Complainant argued that at the time of his dismissal the Respondent was advertising for a Mixologist/Bar Tender and that this advertisement was on Jobs.ie and noted as being last updated on 23^rd May 2016, a week after he had been dismissed. The Complainant therefore argues that the work for which he was employed remained and he was therefore unfairly dismissed.

The Complainant maintained that he had been seeking alternative employment since his dismissal and eventually took up a new job on 30^th June 2016 at €13.50 per hour.

Summary of Respondent’s Case:

CA-00006888-001: Breach of Section 14 Sunday Premium Under the Organisation of Working Time Act, 1997

The Respondent argued that the hourly rate of €14.50 included a Sunday premium and that this was the rate that the respondent agreed when he commenced his employment. It was argued during the hearing and that other in employees were paid €11:50 per week and that in April 2015 another employee was taken on for a fixed wage of €28,000 per annum for 40 hours per week which amounted to an hourly rate of circa €13.46. The Respondent therefore contended that the Complainant's wage was greater than other employees and reflected his requirement to work Sundays.

CA-00006888-002: Breach of Section 12 Rests Breaks of the Organisation of Working Time Act, 1997

The Respondent argued that the Complainant only worked over 40 hours per week on seven occasions. A roster submitted to the hearing indicated this occurred on six occasions. He advised that the complainant would normally begin work between 4pm and 4:15pm depending on traffic and that the bar opened at 5pm until 3 am.The Respondent argued that the bar was quiet between five and seven each evening. The Respondent also maintained that there was also another barman working from 7pm and that there were opportunities for the Complainant to take rest breaks during work. The Respondent argued strongly that there was always another person present from 7pm and the staff including the Complainant would have been able to take breaks cigarette breaks.

The Respondent acknowledge that there was no record of breaks taken and although the breaks were taken he should have been maintaining proper record of the rest breaks. 

CA-00006888-003: Breach of Section 3 of the Terms of Employment (Information) Act, 1994

The Respondent acknowledged that the Complainant was not provided in writing with information containing the particulars of the terms of employment. The Respondent advised that the Complainant initially took up employment for a three-month period only but that the employment continued much longer than that. The Respondent stated it was a clerical oversight and that he failed to provide the Complainant with the information as the employment continued longer than expected. 

CA-00006888-004: Breach of Section 4 of Minimum Notice & Terms of Employment Act, 1973

The Respondent acknowledged that he provided the Complainant his notice by text when the Complainant was on annual leave.

CA-00006888-005: Breach of Section 6 of the Unfair Dismissals Act, 1977

With regard to the complaint for unfair dismissal, the Respondent argued that the Complainant only started working with the employer from 25^th May 2015 and therefore as he was not employed for a full 12 months his complaint under the Unfair Dismissals Act does not qualify.

Findings and Conclusions:

CA-00006888-001: Breach of Section 14 Sunday Premium under the Organisation of Working Time Act, 1997

In accordance with Section 14(1) of the Organisation of Working Time Act 1997, an employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

1. by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

2. by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

3. by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

4. by a combination of two or more of the means referred to in the preceding paragraphs.

Whilst I acknowledge the Respondent has argued that the Complainant’s pay was higher than other employees and as such it included a Sunday Premium, I am not satisfied that the Respondent has justified this by providing comparators, or any supported evidence. In addition, as the Respondent failed to provide the Complainant with written information on his employment it is impossible to demonstrate that a Sunday premium has been fairly applied.

I therefore find that the Respondent is in breach of section 14 of the Act.

CA-00006888-002: Breach of Section 12 Rests Breaks Under the Organisation of Working Time Act, 1997

In accordance with Section 12 if the Organisation of Working Time Act 1997

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 a break of at least 15 minutes.

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

3. The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

4. A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

Section 25 of the Act requires the Employer to keep records of working time for at least three years, and further requires that where an employer fails to keep records in respect of his or her compliance with a particular provision of the Act in relation to an employee, the onus of proving, in proceedings before an Adjudicator, that the said provision was complied with in relation to the employee shall lie on the employer.

In the absence of any such records being provided to the hearing I adduce that the Complainant was not provided with the required rests and intervals at work and as such the Respondent has breached section 12 of the Act.

CA-00006888-003: Breach of Section 3 of the Terms of Employment (Information) Act, 1994

Section 3 (1) of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing prescribed particulars of the terms of the employee’s employment.

The Respondent has acknowledged that he did not comply with this requirement and I therefore uphold the complaint.

CA-00006888-004: Breach of Section 4 of the Minimum Notice & Terms of Employment Act, 1973

Section 4 of the Minimum Notice & Terms of Employment Act, 1973 requires that 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 of one week for employees who have been in continuous service for less than one year.

The evidence provided to the hearing supports that the Complainant was dismissed by text on 16^th May 2016 when the Complainant was on leave and where he was advised that the Respondent did not have any hours/ job for the Complainant anymore, and that the Complainant was costing the Respondent too much as the business had slowed down. A review of the pay records submitted does not indicate that the Complainant was paid a week’s wages in lieu of this notice.

I therefore uphold the complaint and find that the Respondent failed to provide the Complainant with the required notice period of 1 week.

CA-00006888-005: Breach of Section 6 of the Unfair Dismissals Act, 1977

In accordance with Section 6 of the Unfair Dismissals Act, 1977, dismissal of an employee shall be deemed, for the purposes of the Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

In addition, Section 6 (4) of the Act states that the dismissal of an employee shall be deemed, for the purposes of the Act, not to be an unfair dismissal, if it results wholly or mainly from:

1. the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

2. the conduct of the employee,

3. the redundancy of the employee, and

4. the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6 (6) of the Act states that in determining for the purposes of the Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection 6 (4), or that there were other substantial grounds justifying the dismissal.

Section 6 (7) requires that without prejudice to the generality of subsection 6(1), in determining if a dismissal is an unfair dismissal, regard may be had to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.

The parties disputed the actual date of commencement of the employment. The Complainant argued that he actually started work on 15^th April 2015, whereas the Respondent argued that the employment did not start until 25^th May 2015. Whilst the pay roll indicates the first wage was paid to the Complainant on 25^th May 2015 it is clear from telephone texts between the parties provided that the Complainant was corresponding from late March 2015 about starting work; and where from 15^th April 2015 the Complainant was referring to the respondent in the text messages as “Boss”. It is clear the Complainant was texting about ordering stock from 20^th April 2015. The Complainant also provided confirmation that he had left previous bar work on 26^th April 2015.

The investigation is therefore satisfied that the employment commenced prior to 25^th May 2015 and as such the Complainant has 12 months continuous service, albeit he is only showing on the payroll for 47 weeks.

The Respondent in his text to the Complainant on 16^th May 2016 advised that the reason for the dismissal was based on the Complainant costing us too much and the whole cocktail side of things have slowed down dramatically. So this is why we have to make this decision. The hearing was also provided evidence which shows that on 25^th May 2016 the Respondent was in fact advertising for a Mixologist/Bar Tender on a permanent full time basis with Jobs.ie.

On that basis, I am satisfied that the dismissal has not wholly or mainly resulted from one of the conditions as set out in Section 6 (4) of the Act, and as such I find that the dismissal was unfair and therefore I uphold the complaint.

Decision:

Section 41 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 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under that 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 the relevant redress provisions under that Act.

Section 11 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

CA-00006888-001: Breach of Section 14 Sunday Premium under the Organisation of Working Time Act, 1997

There was no contract in place according to the Complainant, and there was no premium paid for Sunday work. The Complainant worked every Sunday from 4pm to at least 3am. Samples of the pay slips were provided and a roster of hours worked was also provided.

Under section 14 of the Act that an employee is entitled to compensation for the requirement to work on Sunday. As per other cases in the catering industry adjudicated by the WRC I find 10% of basic rate is a reasonable amount to be paid as compensation for Sunday working in the industry and I have applied that compensation to the complaint as follows: €1.45 x 40 hours = €58 x 52 weeks = €3,016 which his taxable as it constitutes wages.

Due to the breach of legislation, I also compensate the Complainant €500 which is compensation so is not taxable.

CA-00006888-002: Breach of Section 12 Rests Breaks of the Organisation of Working Time Act, 1997

The Respondent has not maintained the proper records regarding its obligations under the Act. The Respondent has also failed to satisfy the hearing that proper breaks and intervals at work have been provided to the Complainant.

I therefore declare that the complaint was well founded, and require that the Respondent comply with the relevant provisions regarding the provision of rest and intervals at work. In accordance with Section 27 of the Act I also require the Respondent to pay to the Complainant compensation of €500 which is compensation so is not taxable.

CA-00006888-003: Breach of Section 3 of the Terms of Employment (Information) Act, 1994

I have found that the Respondent has contravened Section 3(1) of the Act by not providing the Complainant with written notification of the terms of his employment. I direct that the Respondent pay to the employee compensation of €500 which is compensation so is not taxable.

CA-00006888-004: Breach of Section 4 of Minimum Notice & Terms of Employment Act, 1973

Section 4(2) of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 5 of that Act.

Based on the evidence presented at the hearing, I find that the Complaint is well-founded.

Section 4(2) of the Minimum Notice and Terms of Employment Act, 1973 provides: ‘The minimum notice to be given by an employer in this case to terminate the contract of employment of his employee shall be one week.

The Respondent failed to pay the Complainant one weeks’ pay in relation to his minimum notice entitlement. I therefore order the Respondent to pay to the Complainant compensation in the sum of €500, which is compensation so is not taxable, for breaches of Section 4(2) of the Minimum Notice and Terms of Employment Act, 1973.

CA-00006888-005: Breach of Section 6 of the Unfair Dismissals Act, 1977

In accordance with Section 7 (1) of the Unfair Dismissal Act 1977, I find the Complainant was unfairly dismissed. I uphold that the Complainant is entitled to be compensated for the Unfair Dismissal.

In deciding upon the compensation to be awarded I have considered that the Complainant actively sought and found employment on 30^th June 2016. The new employment was at €13.50 which amounts to €1 per hour less than his wage when he was unfairly dismissed. On that basis, I award the Complainant compensation for 6 weeks full pay at €500 per week and 35 weeks of €40 per week which amounts to €4,400.

Dated:   20^th June 2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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