ADJ-00007149

ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00007149

Parties:

Complaint(s):

Date of Adjudication Hearing: 04/08/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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.

Background:

The complainant, a student, was employed as a Deli Assistant on a part time basis. She was paid €9.15 per hour and had alleged that she did not receive written terms of employment, and that she was treated less favourably as a part time worker compared to full time employees.

The Respondent did not attend the hearing or respond to the complaint.

Summary of Complainant’s Case:

CA-00009730-002: Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant began working with the Respondent on 7^th November 2016 where she was employed on a part time basis as a Deli Assistant. She alleged that contrary to Section 3 of the Terms of Employment (Information) Act, 1994 she was not provided with a written statement of her Terms of Employment. As a consequence, she was not aware of the rostered hours of work or other entitlements, and which she claimed disadvantaged her as from early December 2016 she was provided with little or no work until she handed in her resignation on 19^th May 2017.

CA-00009730-003Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001                     

The Complainant maintained that since the beginning of her employment she did not receive a contract which stated whether or not she was a full-time or part-time employee. As a result of this, she had to contact the Respondent through email and text messages to inquire about her work hours.

Prior to working with the Respondent, the Complainant advised that she worked with a competitor. The Complainant maintained that on her second day of work, on 8^th November 2016, she was asked to divulge a recipe for a sauce used by her former employer and she was uncomfortable with this so she provided an alternative recipe. She was then asked to stay back after hours to make the sauce and she was not happy to do this and she refused. The Complainant advised that she became ill with bronchitis from 13^th to 25^th November 2016 and when she returned to work her hours were reduced. She advised that on 8^th December 2016 the Respondent then changed his attitude towards her, and the Respondent’s daughter was unhelpful towards her when she asked for assistance in work. The Complainant also maintained that the Respondent and his daughter began talking about her at work and where the Respondent looked at the Complainant in a contemptuous manner. On the same day, the Complainant had to return to work having left her jacket behind, and where she alleged that upon her return she overheard the Respondent stating in an angry outburst: “All these part-time workers, I will get rid of them and change everything next year" (i.e. for 2017). No supporting evidence was provided to corroborate this statement.

The Complainant contended that Since 8^th December 2016 the Respondent’s attitude towards her changed. Since that day, the Complainant maintained that she has felt very uncomfortable and worried about her position and employment.

The Complainant maintained that she did not get any further work following the Christmas break. She advised that as she was doing her exams after Christmas she did not look for her roster until 30^th January 2017, where she got two hours work on that day, but no further work was provided to her despite attempts to get her rostered hours.

On this basis, the Complainant maintained that she was being treated less favourably than her comparable full-time employees where she maintains that she only got two hours work during 2017. On 19^th May 2017 she resigned her position and when she received her P45 it was noted that her cessation of employment was 10^th February 2017. The Complainant therefore maintained that her work had been terminated without giving her notice.

She argued that no full time employee would have been treated in a similar fashion and on that basis the Respondent was in breach of its obligations under the Protection of Employees (Part-Time Work) Act, 2001.

Summary of Respondent’s Case:

The Respondent did not attend the hearing, nor did the Respondent make a response to the complaint. I am satisfied the Respondent was advised of the date of the hearing by the WRC.

Findings and Conclusions:

CA-00009730-002 Complaint seeking adjudication under section 7 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 anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing…particulars of the terms ofthe employee’s employment.            

Based on the evidence provided I am satisfied that the Respondent has failed to meet its obligations under the Act.

CA-00009730-003 Complaint seeking adjudication under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001                      

Section 9(1) of the Protection of Employees (Part-Time Work) Act, 2001 states that Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

The Complainant was unsure as to who and how many employees were full time and part time but she assumed some of the staff were fulltime. On that basis, she alleged that full time staff would not have been treated in a similar fashion to her in that they would have been provided with their rostered hours and would not have been required to email or text the Respondent for work, and where if they had done so their request for a roster would not have been ignored.

Based on the uncontested evidence provided I am satisfied that the Complainant was treated less favourably than a full-time employee in that she was not provided with hours of work, where the Respondent clearly ignored her request by text or email for work, and where the Respondent terminated the Complainant’s employment on 10^th February 2017without notifying her. As such I find that the Complainant was treated in a less favourable manner than a full-time employee. However, I also note that the Complainant did not actively seek work during January 2017 as she was completing her exams.

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.

CA-00009730-002Complaint seeking adjudication under section 7 of the Terms of Employment (Information) Act, 1994.

In accordance with Section 7 of the Act I find that the complaint is well founded and that the Respondent has failed to provide the Complainant with written terms of her conditions of employment.                

I therefore order the Respondent to pay to the Complainant compensation of two weeks earnings based on the hours worked by the Respondent on the week commencing 7^th November 2016.

CA-00009730-003Complaint seeking adjudication under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001                      

Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 requires that I make a decision regarding a contravention of Section 9 of 15 of the Act. Based on the fact that the complaint was not contested I have found the complaint was well founded in that as a part time employee she was not provided with a work roster or her hours of work, and that her employment was terminated on 10^th February 2017 without any notification until after she handed in her resignation notice on 17^th May 2017. In making this award I note the did not seek work during January 2017, and made no further contact with the Respondent after 9^th February 2017.

I therefore award compensation of three week’s earnings based on the average hours worked by other part time employees over the period 1^st February to 17^th May 2017.

Dated:   5^th September 2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney