ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00011907

Parties:

Complaint(s):

Date of Adjudication Hearing: 05/06/2018

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 13 of the Industrial Relations Acts 1969 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).

Background:

CA-00015800-002 Complaint under the Organisation of Working Time Act, 1997.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

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.

Complaint is not upheld.

CA-00015800-003 Complaint under the Terms of Employment (Information) Act 1994.

Summary of Complainant’s Case:

The Complainant state that she had not been given a new contract from the new company as she should have been.

Summary of Respondent’s Case:

The Respondent agreed that t the Complainant had not been given a new contract of employment, but the new contracts were only being drafted up before the Complainant's employment terminated. The Respondent state that it was casual employment and that everyone was on trial.

Findings and Conclusions:

Section 3 of the Act states:

3.— (1) 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,…

In this instance, the Complainant had only been working for 8 weeks with the Respondent (this duration was agreed by both parties) before the relationship terminated. In the circumstances I find that the Respondent did breach of the Act, it was only just outside the time permitted to issue terms and was in the process of preparing same for its employees.  

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.

The complaint is well founded but the breach does not warrant an award of compensation.

CA-00015800-004 Complaint under the Terms of Employment (Information) Act 1994.

Summary of Complainant’s Case:

The Complainant stated that when she started working with the Respondent she was given nothing in writing regarding her role and the changes to her role, when she started working again in August 2017.

Summary of Respondent’s Case:

The Respondent agreed that nothing had been given in writing to the Complainant when she started working in the bar again in August 2017.

Findings and Conclusions:

Section 5 of the Act states:

5.— (1) 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, 4or 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—

( a) 1 month after the change takes effect, or

( b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

However, in this instance the Complainant had commenced with a new employer and therefore her contract was new not changed, therefore there could not have been a breach of Section 5.

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.

The complaint is not well founded.

CA-00015800-005 Complaint under the Industrial Relations Acts.

Summary of Complainant’s Case:

The Complainant stated that she was called into an ad hoc meeting on 9th October 2017 and told by the Respondent's manager that there would only be 8 hours work for her in the coming weeks. The Complainant asked the Respondent's manager if that meant she was being let go and she was told it did. The Complainant then asked if it was effective immediately and she was told that it was. The Complainant stated that she was on roster for that week so that cover had to be sought for her. She left the bar that day and never returned.

The Complainant got another job around 17th November 2017 on similar terms and conditions to those she enjoyed while working for the Respondent, she has been working in this job up to the date of the hearing.

Summary of Respondent’s Case:

The Respondent denies that any dismissal took place. The Respondent stated that at the time of the termination of her employment the Complainant was on an hourly rate and paid weekly for the hours she worked, she was not a salaried employee and she was working between 28 and 40 hours per week.   However, the business suffered greatly during the summer, the wage bill was too high and it was decided that the roster had to be cut. As the winter approached it was impossible for the Respondent to guarantee hours of work for their employees.

A lot of the staff happened to be students, who worked varied hours and who were not dependent on this income for their livelihoods. Because others were dependent on this income it was decided that long-term staff would be told that they would get at least 8 hours a week work but that nothing could be guaranteed after that.

When the Respondent's manager told this to the Complainant she said 8 hours was not enough and she would go. The Respondent's manager stated that it was an amicable conversation and she told the Complainant that if things picked up she would be the first person asked back.

The Respondent stated that the bar manager and five other staff members were let go around the same time.

Findings and Conclusions:

Both parties agree that the Complainant was offered an option of continuing working in the bar, albeit that the time guaranteed was substantially less than she had been working, however, there was a possibility of more work becoming available. Promising 8 hours work per week is less than ideal for someone who was working up to five times those hours but it was the best that could be guaranteed at the time; the possibility did exist of more hours becoming available.

The Complainant's assertion that she was told she was being let go does not stand up to scrutiny; why offer someone reduced hours and then them that they are being let go.

I do not believe that the Complainant was dismissed at the meeting of 9th October 2017, rather I find that she decided to end her relationship with her employer to pursue more substantial and stable work.

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I do not uphold the claim for unfair dismissal.

CA-00015800-006 Complaint under section 13 of the Industrial Relations Act, 1969.

This complaint was withdrawn at the hearing.

CA-00015800-007 Complaint under section 13 of the Industrial Relations Act, 1969.

This complaint was withdrawn at the hearing.

CA-00015800-008Complaint under Section 86 of the Employment Equality Act, 1998.

Summary of Complainant’s Case:

The Complainant stated that she had been discriminated because of her age. She put forward that she, along with two "older ladies", who were the fulltime employees during the winter months, had been let go while other, younger staff, students mostly, were kept on. In questioning the Complainant agreed that a male employee in his mid-thirties was also let go at the same time as she finished with the Respondent.

The Complainant stated that she did not know about any Grievance Procedures that may have been open to her.

Summary of Respondent’s Case:

The respondent categorically denied that there had been any discrimination on age grounds, in fact if anything it was more likely that someone of a certain age would have been kept on, if they had wished, as they would have been more dependent on the income and the Respondent tried to accommodate them more. Many employees were let go across several departments at the time.

The Respondent stated that three people in their thirties were let go and that five employees, all younger than the Complainant had been let go too.

The Respondent pointed out that there was an Employee Handbook, with both Dignity at Work and Grievance Procedures that had been available to the Complainant.

Findings and Conclusions:

Notwithstanding the fact that I have found that the Complainant was not unfairly dismissed from her employment with the Respondent, I shall look at the merits of the claim under this Act, in isolation.

The issue for decision by me is whether or not the Respondent discriminated against and dismissed the Complainant on grounds of age, in terms of section 6 of the Acts and contrary to section 8 of those Acts in relation to her dismissal.   Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.   In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".

Having heard the evidence from both parties, I am not satisfied that the Complainant has established a prima facie case of discrimination. The evidence she gave indicated that a number of "older ladies" were let go, however, this was at a time when a large number of staff were being let go across the organisation. No compelling evidence was adduced that linked any less favourable treatment of the Complainant to her age. It is telling that a number of employees younger than the Complainant were also let go at the time.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

The complaint of discrimination under the Act is not upheld.

CA-00015800-009 Complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003.

This complaint was withdrawn at the hearing.

Dated:   16/08/18

Workplace Relations Commission Adjudication Officer: Roger McGrath