ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005175

Complaint for Resolution:

Date of Adjudication Hearing: 01/03/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, 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.

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.

CA 7222- 001 (Unfair Dismissals Act, 1977)

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The burden of proof, which is a very high one, lies on the claimant. He must show that his resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

If the tribunal is not satisfied that the “contract” test has been proven then it is obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate his contract of employment.

The complainant stated that he started his employment with the respondent in May, 2015. He had a good working relationship with his superiors until February, 2016 when the General Manager left. Following that, the owner spent more time in the premises. In or around that time the floor staff were requesting a pay rise. The owner decided to change the process in relation to the distribution of tips. Previously, all the tips were divided out equally (depending on hours worked) between the floor staff and the bar staff. The complainant was in receipt of approximately € 150 per week from tips. The new process was that only floor staff would benefit from the floor tips and the bar staff would receive nothing unless the floor staff voluntarily gave them some of theirs. After the change he received approximately € 50-€70 per week. He complained about the change. It was after that that he noticed the owners attitude towards him change. He blamed him for every little thing. He ignored him. He told him that he shouldn’t be on €11 per hour as he wasn’t sufficient skilled to be on that rate.

After the change in the tip system the complainant was offered the opportunity to work on the floor. Floor staff are paid €9.50 per hour plus all the tips. The complainant thought he would stay on his €11 per hour during the trial period. He was asked to sign a contract in relation to the floor staff role but he refused to do so. The owner got very annoyed with him and aggressively demanded that he sign the contract. He refused to do so. He was moved back to duties. In August he wrote to the respondent outlining various breaches of his employment rights. The respondent did make changes following notification that they were in breach of various employment statutes. The break structure was changed, the Sunday supplement was introduced and back paid for a period of six months. The complainant stated that it was only he who benefited from the changes which only served to isolate him further from the other employees. The respondent stated that the changes to the breaks and Sunday supplement were implemented for all staff.

It is clear from the evidence that the respondent did respond in a very proactive way to the claimant’s letter of the 8 August, 2016. They admitted that they were in breach of some of the legislation and were not aware of it until the complainant put them on notice of it. The complainant is not justified in complaining about the respondent’s positive efforts to rectify its legislative shortcomings. I find the respondent’s evidence that the changes were made for all staff more credible. It would make no sense that the respondent would only implement the changes for the complainant thus leaving itself exposed to more claims from the other employees.

The complainant stated that his hours were greatly reduced following his complaint. It is clear from the timesheets submitted that the complainant’s hours were greatly reduced. However, when one looks at the time sheets for the other employees it can be seen that their hours too were reduced. The respondent’s evidence that the summer months are much more quite is credible based on the timesheets.

In all of the circumstances I can find no breach of the complainant’s contract of employment of the type envisaged in Western Excavating ECC Limited –v- Sharp. Furthermore, I find that it was not reasonable in all of the circumstance for the complainant to terminate his contract of employment. The respondent acted in a positive way when it received the complainant’s complaint and did rectify its statutory shortcoming which could only have been to the complainant’s benefit.

CA 7222- 002 (Section 12 Organisation of Working Time, Act, 1997.)

(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).

The respondent conceded that it was in breach of this section but was unaware of it until the complainant notified them of those breaches.

The respondent did not have any documentation/records in relation to employees hours of work/breaks.

S25- (1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

The respondent does have a statutory obligation to keep and maintain records to show that the provisions of the Act are being complied with. The onus of proving compliance is on the respondent as was stated in Goode Concrete –v- Monroe WTC 04/59. The respondent accepts that at the material time it was not in full compliance with the Act. Since then they have take steps to ensure compliance. They now have excel spread sheets logging all of the employees hours including breaks and rest periods.

I find in favour of the complainant, however due to fact that the respondent admitted it was in breach of Section 12 and has taken steps to rectify the situation, I find that they have mitigated their shortcomings and accordingly I will award the complainant the sum of € 500.00.

The complaint succeeds.

CA 7222-003 (Section 11 Organisation of Working Time Act, 1997)

The complainant stated that the respondent was in breach of Section 11 of the act in that it failed to allow him a daily rest period of 11 consecutive hours.

The respondent conceded that it was from time to time in breach of this section of act. It has since made changes however those changes didn’t come into operation until September, 2016 after the complainant left his employment.

I find in favour of the complainant and award the sum of € 750.00.

CA 7222-005 (Section 6 Payment of Wages Act, 1991)

Section 5. An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

The complainant stated that he was moved onto the floor following a complaint in relation to the changes in the tip system. He was going to trial the floor for a period of four weeks and then was going to decide if it was worth his while financial. He expected that he would stay on this contractual rate of € 11.00 until he decided whether to move over to the floor staff role permanently. He was presented with a contract and was asked to sign it. He refused to do so and after only one week moved back to his role at the bar. His contractual pay was deducted € 84.64.

The respondent witness stated he believed that the respondent’s accountant had reimbursed the complainant the sum of € 84.64. However, he was unable to identify the payment on the complainant’s last payslip or on any of his payslips.

Having analysed all of the payslips produced at the hearing, I cannot identify the payment the respondent states that it made to the complainant in relation to this claim. I therefore conclude that the payment has not been made.

The claim succeeds and I award the complainant the sum of € 355.00 being the complainant’s net pay for the week in question.

CA 7222 – 07 (Section 6 Payment of Wages Act, 1991).

Section 41 (6) Workplace Relations Act, 2015 Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The complaint in relation to this matter is twofold. Firstly the complainant states that from August 2015 he was not paid any overtime despite having been paid overtime for the first three months of his contract. Secondly, he states that from August, 2016 when the ‘tips policy’ changed he was no longer in receipt of his tips.

The complainant lodged his claim with the WRC on 27 September, 2016. Pursuant to Section 41(4) I only have jurisdiction to adjudicate on the matter for the period 27 March 2016 to 27 September, 2016.

The respondent stated that they used to pay overtime until they were advised by their accountant the overtime should be calculated on an average of hours worked over a four month period. Following that advice the complainant, when his hours were averaged out over a four month period never exceeded an average of 48 hours per week (7 days).

(a) 4 months, or …..

Based on the time sheets submitted during the hearing of the matter and on the complainant’s contract of employment, I find that the complainant, pursuant to Section 15(1) is not entitled to a payment for overtime and therefore his claim pursuant to Section 6 Payment of Wages Act, 1991 fails.

Tips

The complainant stated that in August, 2016 the system in relation to the distribution of tips changed. He states that the respondent’s failure to allocate the tips equally between all staff amounts to an illegal deduction pursuant to the act.

The respondent stated that tips were never guaranteed. It had very little to do with them. Before the change in August, 2016 tips were allocated equally depending on the hours worked. They were allocated to all staff. After the change only the floor staff got the benefit of the tips from their work on the floor. Bar staff also received tips from their work at the bar and they too got to keep all those tips amongst themselves.

Section 1 Payment of Wages Act 1991 defines the word ‘wages’.

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) 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, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition

(i)             any payment in respect of expenses incurred by the employee in carrying out     his employment,

(ii)            any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii)            any payment referable to the employee's redundancy,

(iv)            any payment to the employee otherwise than in his capacity as an employee,

(v)             any payment in kind or benefit in kind.

I find that ‘tips’ are not wages properly payable within the meaning of Section 1 of the Act. The employer has no control of the level tips achieved and cannot give any guarantees in relation to them. Furthermore, the complainant has no way of quantifying the alleged, if any, loss in relation to the change in the system.

The complaint fails.

Dated:   15^th May 2017