ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003863

Complaints for Resolution:

Date of Adjudication Hearing: 09/12/2016

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and pursuant to Section 8 of the Unfair Dismissals Act 1977 (as amended) and following the referral of certain workplace complaints and disputes to me by the Director General, I can confirm that I have inquired into the said complaints and disputes and have given the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and disputes. The Complainant brings his Complaints on foot of a Workplace Relations Complaint Form dated the 22^nd of April 2016 and are detailed above. This Form was submitted within the appropriate six month time period.

The Parties :

A Chef -v- A Restaurant Business (First Respondent ) and A Restaurant Business (In Liquidation) (Second Respondent)

Complainant’s preliminary Submission and Presentation:

The Complainant is a Brazilian national who came to Ireland in 2006 and worked as a chef in a busy bar and restaurant in the city centre (Second Respondent). In and around 2015 the Complainant’s position within the second Respondent Company became precarious as that company was having financial difficulties and going into liquidation.

It is accepted that the head chef in the Second Respondent Company rang the Director of the First Defendant Company requesting that she find a position for the Complainant whose employment was attached to a workplace specific work permit. The Director of the second Respondent Company undertook to assist the Complainant and to do this as requested.

The Complainant who has some language barrier issues was not sure whether this was a continuation of Employment or (in line with a transfer of Undertaking to the First Respondent entity) whether this was a Redundancy from his first job with a move to a second and entirely new job.

This issue had to be dealt with by way of a preliminary issue.

First Respondent’s Submission and Presentation:

The First Respondent witness gave evidence to the effect that the Respondent Companies were wholly different enterprises and that the commonality of Directors was purely for Company purposes and did not signal any further interchangeability. In all matters these two Respondents should be treated as separate and apart. In giving the Complainant a job, this witness for the First Respondent said she was doing a favour and was under no obligation. The witness set about getting a work permit in respect of the Complainant working in the new job and put the Complainant to work on a weekly rostered basis.

Decision on Preliminary Issue:

There is no evidence to suggest that there was a continuation of service from time served with the Second Respondent and then commencing Employment with the First Respondent. In effect the Employment with the Second Respondent was terminated by reason of the fact that that entity was going into Liquidation and, on the face of it, an entitlement to Redundancy does apply as against the Second Respondent for an Employment period from August 2009 to January 2015.

Note : The Application in relation to Redundancy is dealt with under separate Adjudication decision no -00003867

Complainant’s Further Submission and Presentation:

On foot of the preliminary finding, the Complainant accepted that the claim for Unfair Dismissal must fail for want of jurisdiction in circumstances where he had not worked for 52 weeks with the First Respondent. His employment with the First Respondent commenced in and around February 2015 (though there had been a more casual arrangement before this date) and terminated on the 9^th of November 2015. The Complainant did have a number of complaints as against the First Respondent and evidence was heard from the Complainant and the Director of the First Respondent with respect to each Complaint:-

1. The Complainant did not receive his Statement of Terms and Conditions of Employment under the 1994 Act and whilst the First Respondent witness indicated that this was largely due to her waiting to obtain the requisite work permit the Complainant makes the case that this is not a pre-requisite to giving the said Statement.

    

2. Three claims were made under the Organisation of Working Time Act of 1997. One of these was abandoned as being incorrectly submitted (relating to breaks). One was found to have already been satisfied (public holidays). The last related to working seven days in the week and the evidence was that this happened on one single occasion.

First Respondent’s Submission and Presentation:

The First Respondent witness gave evidence to the effect that she was usually good about giving out the Contracts of Employment but overlooked it this time as she was concentrating on the need to obtain a work permit for the Complainant.

The Respondent refuted any allegation that the First Respondent entity ever acted contrary to the Organisation of Working Time Act 1997.

Decisions against the First Respondent only: 

Re: Complaint under Terms of Employment Information Act, 1994:-

There was an admitted failure to provide the Complainant with the esentials of his Terms and Conditions of Employment. I award the Complainant €100.00

Re: Three Complaints under Organisation of Working Time Act of 1997:-

Only one of the three claims brought was pursued – relating to working seven days in a row. The Employer has contravened a relevant provision of the Act and in those circumstances I award 6.

I award the Complainant €300.00

Re: Claim under the Unfair Dismissal Act, 1997:-

This claim was abandoned and no Order is made.

Dated:   26^th May 2017