ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009249
Parties:
| Complainant | Respondent |
Anonymised Parties | A floor waitress | A Restaurant |
Complaint(s):
|
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00012157-003 | 27/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00012157-004 | 27/06/2017 |
Date of Adjudication Hearing: 21/09/2017
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
In particular this matter comes before an Adjudicator of the Workplace Relations Commission on foot of certain complaints which are contained in a Workplace Relations Complaint Form dated the 27th of June 2017, wherein contravention of certain relevant provisions of the Organisation of Working Time Act of 1997 have been alleged. Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended) I shall be entitled to declare the complaint was or was not well founded
And require the Employer to comply with the relevant provision. I might also require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration
In addition the Complainant has made a complaint under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee herein employed by an Employer is entitled to be provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment (as specified in Section 3 of the 1994 Act). In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
Background:
The Complainant herein worked with this Employer for a 10 or11 week period. This is a busy restaurant. The workplace operates something called a “tip-out” system which is a complicated system for pooling and sharing tips. The Complainant says she never really understood the system and what the point of it was. However the Complainant was advised at the job interview how this system operated in the workplace and she took the job on knowing that an unusual and unfamiliar system was in operation. It is accepted that the Complainant raised the issue of the tip-out system with one or two of her advisors but it was management’s belief that the supervisors had explained the rationale and operation of the system and it is clear that the Complainant never went directly to management in this regard. It is noted that Management were always on the floor and were approachable and friendly. This was generally a happy workplace where staff earned good tips. The Complainant did ask for a Statement of her Terms and Conditions of Employment when she asked for her Contract of Employment. She had hoped her Contract of Employment might include an explanation of the tipping system In fact it is accepted that information of that sort would not normally form part of the Contract of Employment as it amounted to a workplace practise more likely to be found in a Staff Handbook. In fact the Employer conceded that there was no written account for how the tip-out system operated as it was generally understood – on reflection this may not be the best practise. The Employer denies that the Complainant was ever disadvantaged by the system in operation and the Complainant earned good tips – which fact was not denied. The Employer concedes ther was a delay in getting the Contracts of Employment out at that particular time though it is noted The Complainant was not vigorously asserting that she did not get her rest breaks. Her problem lay with the lack of structure as to when they might be. The Complainant conceded that this type of workplace would inevitably have peaks and troughs and therefore it would be difficult for Management to fix breaks in advance and that the allocation of breaks was altogether more organic. Management noted that the Complainant often came back early from shifts so as to secure tips on tables that she had worked up in advance of her break.
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Findings and Conclusions:
On balance I find that the Complainant’s complaint under the Organisation of Working Time Act is not well founded. The Complaint under the Terms of Employment Act is well founded in that the Complainant had no Contract of Employment despite having requested one prior to her departure from the workplace some 10 or 11 weeks after commencing . |
Decision: 16/11/17
I make no Order under the Organisation of Working Time Act 1997.
I award €75.00 compensation under the Terms of Employment (Information) Act 1994
Dated:
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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