ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007598

Parties:

	Complainant	Respondent
Anonymised Parties	An Employee	A Retail Shop

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00010176-008	12/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00010176-009	12/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001	CA-00010176-010	12/03/2017

Date of Adjudication Hearing: 04/12/2017

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andfollowing 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 commenced work in the Respondent’s retail shop on or about 18 March 2016.

Summary of Complainant’s Case:

CA-00010176-008: Terms of Employment (Information) Act, 1994:

The Complainant stated that she did not receive a statement in writing of her terms of employment as set down under the Terms of Employment (Information) Act, 1994.

CA-00010176-009: Terms of Employment (Information) Act, 1994:

The Complainant stated that she was not notified in writing of changes to her terms of employment. She stated that on 7 March 2017, she was advised that her hours would be cut to one day per week. According to the Complainant's evidence, no other staff member had their hours reduced and, when she queried why her hours were being cut she did not receive a satisfactory response.

The Complainant contends that the reduction in her hours was connected to her seeking holiday pay which she claims she was owed at the time.

CA-00010176-010: Protection of Employees (Part – Time Work) Act, 2001:

The Complainant contends that, as a part-time employee, she has been treated less favourably than a comparable full-time employee in respect of conditions of employment. The particular condition of employment identified by the Complainant in this regard was her annual leave entitlement.

Summary of Respondent’s Case:

CA-00010176-008: Terms of Employment (Information) Act, 1994:

The Respondent conceded that the Complainant did not received a statement of Terms and Conditions of employment.

CA-00010176-009: Terms of Employment (Information) Act, 1994:

In response to the Complainant's complaint in relation to changing her working hours, the Respondent confirmed that her hours had changed. However, it was stated that it was necessary to have variations in working hours in order to reflect business demands and that this had previously been advised to the Complainant.

CA-00010176-010: Protection of Employees (Part – Time Work) Act, 2001:

The Respondent stated that the Complainant failed to make the case that she had been treated less favourably than a full-time colleague in relation to holiday entitlement.

Findings and Conclusions:

CA-00010176-008: Terms of Employment (Information) Act, 1994:

Section 3 (1) of the Terms of Employment (Information) Act, 1994, states, inter alia, that:

“An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, ”

I am satisfied from the evidence presented, that the Complaint was not provided with written terms and conditions of employment within the period specified under the Act, as set out above.

Based on this finding, I deem the Complainant to be entitled to compensation in line with Section 7 (2) (d) of the Act and, in this regard, find an amount of €584.00 to just and equitable, having regard to all the circumstances.

CA-00010176-009: Terms of Employment (Information) Act, 1994:

Section 5 (1) of the Terms of Employment (Information) Act, 1994, states, inter alia, as follows:

“Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than 1 month after the change takes effect,”

Having carefully considered all the evidence adduced in relation to this aspect of the Complainant’s complaint, I am satisfied that there were changes to her hours of work. In addition, I note that there was some discussion with the Complainant on 7 March 2017, in relation to these changes.

However, in the context of the Complainant not having been provided with terms and conditions of employment, there is a significant lack of clarity as to what the exact situation was with regard to the Complainant’s hours of work.

Taking all of this consideration, I find that, while there is some substance to the Complainant's complaint in relation to the change in her hours, it is not sufficient to warrant additional compensation over and above that already awarded under CA-00010176-008, as the implications of the absence of proper Terms and Conditions of Employment were factored into that award.

CA-00010176-010: Protection of Employees (Part – Time Work) Act, 2001:

Section 9 (1) of the Protection of Employees (Part – Time Work) Act, 2001, states, inter alia, 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 condition of employment relied on by the Complainant in this element of her compliant was holiday entitlement. In presenting her case, the Complainant did not provide any evidence which would support her contention that she was being treated less favourably than a full-time colleague in this regard.

In addition, based on the evidence presented at the Hearing, it appears that, as a result of a workplace inspection by the WRC, all outstanding entitlements, including holiday pay, were offered to the Complainant.

Consequently, taking all of the above into consideration, I find that the Complainant’s complaint is not well founded and is, therefore not upheld.

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.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my decisions with regard to the various complaints made by the Complainant, as follows:

CA-00010176-008: Terms of Employment (Information) Act, 1994:

I find that the Complainant's complaint in this regard is well-founded and award an amount of €584 in compensation for the breach of the Act.

CA-00010176-009: Terms of Employment (Information) Act, 1994:

I find that there is some substance to the Complainant’s in this regard. However, I am not making a separate award as the situation was factored into the award under the previous complaint.

CA-00010176-010: Protection of Employees (Part – Time Work) Act, 2001:

The Complainant’s complaint under this heading is not upheld.

Dated: 8th August 2018

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Key Words:

Terms of Employment (Information) Act

Contract of Employment

Protection of Employee (Part-time Work) Act