ADJ-00006608

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006608

Parties:

Complaint(s):

Date of Adjudication Hearing: 20/07/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 and Section 11 of the Minimum Notice & Terms of Employment Act, 1973 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).

Summary of Complainant’s Case:

Unfair Dismissal

The Complainant commenced employment with the respondent company in March of 2015 and claims that she was effectively dismissed by her employer on the 30/07/2016 and therefore has the required service to take a claim under the Unfair Dismissals Acts. The Complainant was originally employed as a kitchen assistant on the basis of a 19-hour week for which she received a gross payment of €198.00 per week. During the currency of her employment the Complainant began to experience difficulties with her Manager to the degree that she requested her trade union SIPTU to intercede with her employer on her behalf.

On the 29/07/2016 a representative from SIPTU rang the Complainant’s manager on her mobile phone and left a voicemail to the effect that he wished to arrange a meeting with the company to discuss the Complainant’s concerns. The SIPTU Representative missed a call from this number however the caller did not leave a message. The SIPTU Representative then called The Complainant to ascertain the landline of the company. The SIPTU Representative then called the company landline. The phone was answered by a member of staff who advised that the manager was not available. The SIPTU Representative left a message requesting that the manager call him when available. The SIPTU Representative then rang the Complainant to update her in relation to the fact that he had been unable to contact the manager.

The following morning the Complainant was directly contacted by the manager who requested to meet her off site. The Complainant attended the meeting and was advised that due to a down turn in business that the company had decided to lay her off. The manager further confirmed that she would be in contact with the Complainant in September/ October to reengage her when the pub got busier.

Siptu wrote to the Respondent Company on the 08/08/2016 expressing concerns in relation to the company decision. The company did not respond to this letter. On the 17/09/2017 the company advertised for vacancies for part time waiting staff. The company did not contact the Complainant in respect of these vacancies. SIPTU again wrote to the employer on the 08/11/2016 raising concerns that the Complainant had not been recalled despite the fact that a number of new staff had been engaged. Again, no response was received leading to the decision to refer the Complainant’s dismissal to the Workplace Relations Commission.

In the above circumstances, the Complainant’s representative contended that the Complainant was dismissed with effect from the 30/07/16. The Complainant further contended that this dismissal is unfair both on a substantive and procedural basis. The Complainant was dismissed without any recourse to fair procedures and natural justice and in the particular circumstances of this case the Complainant claims that she is entitled to the full application of the compensatory value of 104 weeks’ pay.

Minimum Notice

The Complainant had the required service to be entitled to 1 weeks’ notice or payment in lieu thereof. The Complainant was dismissed on the 30/07/2016 without notice. In these circumstances the Complainant claims that she is entitled to the payment of 1 weeks’ notice to the value of €198.00 .

Terms of Employment (Information) Act 1994

Section 3 of the legislation provides that an employer must furnish an employee with a written statement of their terms of employment within 2 months of the commencement of employment. The employer in the case did not fulfil that obligation at any time during the currency of the employment. Given that the Complainant was employed for over one and a half years this omission cannot be viewed as an oversight by the employer and as such the Complainant contends that the maximum compensation of 4 week’s pay should be applied.

Organisation of Working Time Act (Sunday Premiums)

Section 14 Of the Organisation Of Working Time Act provides that an employee who is required to work on a Sunday is entitled to receive compensation for doing so. That compensation can be in the form of an additional allowance, an increased rate of pay or additional paid time off or a combination of these measures. The Complainant worked at least once per month on a Sunday as part of her roster. The Complainant did not receive either additional remuneration or paid time off for having done so. The Complainant contends that the normal payment for an employee working in this sector is the payment of time plus one third. This entitlement was originally established under the Catering Employment Regulation Orders.

In circumstances where there exists a breach of protective legislation that derives from an EU Directive there is an onus on the Adjudication Service to apply the principles established under the Von Colson Judgement. These established principles require that where compensation is legislated for a breach under domestic Legislation then that compensation must be sufficient to act as a deterrent to the employer from undertaking further breaches of the Act.

On the day of the hearing, The Complainant stated that she was the only employee who lost their job at this time.

The Complainant confirmed that she commenced new employment on 15th November 2016 and remained there until January 2017.

The Complainant stated that she received payment when she finished work at the Respondent Company for all outstanding annual leave owed.

The Complainant was hired through a jobs club and she stated that she was treated differently to other staff by not having a contract.

The Complainant stated that she started working every second Saturday in July and August and after the summer holidays she would work some Sundays to cover holidays, approximately one in four Sundays per month.

Summary of Respondent’s Case:

The Respondent stated that the contract was terminated but it wasn’t a dismissal.

He stated that the Complainant started employment via a back to work scheme.

He stated that the bought the business seven years ago from his father and that he was due to work in the business full time but he didn’t. The business made losses initially.

In early 2016 trade declined, particularly in May and therefore he had to make cuts and reduce hours.

The Complainant was working 20 hours per week and this was reduced by half in March 2016. Then in July 2016 they could not pay her and so her employment was terminated. There was nothing in writing, it was just a discussion with the manager and the Complainant. The manager explained that the Complainant was being laid off and would be reengaged in September. No redundancy process was engaged in.

The Respondent complimented the Complainant’s work ethic and work standards and stated that this was purely a business decision.

The Respondent stated that there was no written contract issued to the Complainant. The Complainant was taken on via a back to work scheme and he overlooked the contract as he thought it was done via the back to work scheme. The Respondent confirmed that other employees do have contracts.

The Respondent confirmed that the Complainant did not receive notice.

The Respondent stated that the Complainant received €9.00 per hour. He stated that the Company did not pay a Sunday premium to employees. The Complainant worked 4 hours per week on a Sunday.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of 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.

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the terms and conditions of employment claim consisting of a grant of redress in accordance with section 7 of the 1944 Act.

Section 11 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to the minimum notice claim consisting of a grant of redress in accordance with section 12 of the 1973 Act.

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the pay claim consisting of a grant of redress in accordance with section 27 of the 1997 Act.

I have investigated the above complaints and make the following decision in accordance with the relevant sections of the legislation set out above and the following are my conclusions:  

CA-00008981-001 Unfair Dismissal

The Complainant’s complaint in relation to Unfair Dismissal succeeds due to the following;

1. The reason that was given to the Complainant for her dismissal was that there was a decline in business.

2. There was no process or procedure followed prior to her dismissal.

   The Complainant was out of work for 3 months. The Complainant is to be awarded 3 months’ salary, based on a weekly wage of €90 which equates to €1,080.

    

CA-00008981-002 Terms of Employment

The Complainant never received a contract of employment but was not disadvantaged or at a loss as per her oral evidence at the hearing. The Complainant’s claim in relation to Terms of Employment succeeds and the Complainant is to be awarded 2 weeks salary which equates to €180.

CA-00008981-003 Minimum Notice

The Complainant’s complaint in relation to Minimum Notice succeeds and the Complainant is to be awarded one weeks salary of €90.

CA-00008981-004 Sunday Pay

The Complainant’s complaint in relation to Sunday Pay succeeds and the Complainant is to be awarded a 10% Sunday Premium for hours worked on Sundays, being an average of €3.60 per week for 10 weeks which equates to €36.

Dated:   31/8/17

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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