Complainant

Respondent

Anonymised Parties

Office / Sales Administrator

Health Service Recruitment Company

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-00016203-001

07/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016203-002

07/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016203-003

07/12/2017

The complainant was employed by the respondent in June 2017 as a Sales Support Co-ordinator, working a 25 hour week at €12.00 per hour. The complainant’s hours were reduced in early August to 10 hours per week and her employment terminated on 29 September 2017.

The complainant was supposed to receive training in the sales aspect of her role but in fact was given very little training.

In early August the complainant’s hours were reduced from 25 hours to 10 hours without her agreement.

The complainant had discussions with the Director in relation to her position and was informed of the need to increase sales which involved the recruitment and placement of staff in the Health Service.

On 19 September 2017 the Director informed the complainant that her employment was to be terminated.

The complainant did not receive any pay for annual leave or Public Holidays.

The position for which the complainant was recruited was part administration and part sales.

After a few weeks the Director came to the conclusion that the complainant was not competent in that role.

The Director discussed the situation with the complainant and advised her to look for another job.   The complainant was given time to do this and was put on reduced hours.

Business was difficult and another member of staff was recruited to drive sales.

After a number of weeks the complainant was given notice of the termination of her employment.

The respondent was operating in a specialised area involving the recruitment and placement of overseas personnel for the Health Service. The position for which the complainant was recruited was a mixture of sales and administration. The complainant’s experience was mostly in business administration and it is clear that training would be required to fulfil the specialised sales aspect of the job. I accept the complainant’s account that what training was received was unstructured and sporadic.

The complainant did not receive a statement of her terms of employment. She did, however, receive a letter offering her the position for a trial period of 3 months. The letter also stated that she would work a 25 hour week at €12.00 per hour. There is disagreement between the parties as to the conversation that occurred at the beginning of August. The respondent contends that the complainant was informed that her performance was not of the standard required and that this related not only to her sales but also as regards administration. The Director at the hearing stated that he told the complainant that she was not suitable and should look for another job. In order to allow her to do that the Director put her on short-time working.   The complainant said that the conversation was to the effect that business was difficult but that if it picked up her hours could be increased. There was also a discussion on how reduced pricing and other measures might improve matters. There is no conflict on the fact that the complainant’s hours were reduced to 10 hours per week. The Director accepted that no written notice regarding the reduction was issued to the complainant. It is also accepted that another member of staff was recruited at this time. The Director sent an email to the complainant on 14 September advising her that her employment would terminate on 29 September but for some reason the complainant did not receive same and only became aware of this when verbally informed on 19 September. The complainant told the Director that she was due holiday pay and left an addressed envelope in this regard. It would appear that there was some delay in issuing a cheque in respect of this matter due to that envelope being misplaced.   The cheque subsequently issued in December and the complainant at the hearing withdrew the complaint regarding this matter.

Section 3 of the Terms of Employment (Information) Act, 1994, requires that an employer issues a statement of terms of employment to an employee within 2 months of the commencement of employment. Section 5(1) of the Act states:

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 –

(a)    1 month after the change takes effect…

The respondent failed to issue a statement of employment but there was no specific complaint in that regard before me. It is accepted that the complainant was not given written notice of her change in hours and the failure by the respondent in regard to their statutory obligation under Section 3 cannot be used as an excuse in regard to their further obligation under Section 5(1) of the Act.

As regards the other complaint Section 21(1) of the Organisation of Working Time Act, 1997, states:

Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –

(a)    a paid day off on that day,

(b)    a paid day off within a month of that day,

(c)     an additional day of annual leave,

(d)    an additional day’s pay

Subsection 4 states:

         Subsection 1 shall not apply, as respects of a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

The only public holiday in question in this matter is the one that occurs on the first Monday in August and it is clear from the evidence before me that the complainant qualifies for same and is therefore entitled to payment in that regard.

Complaint No. CA-00016203-001:

This is a complaint under the Terms of Employment (Information) Act, 1994. For the reasons stated above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €475.00 in this regard.

Complaint No. CA-00016203-002:

This is a complaint under the Organisation of Working Time Act, 1997, in respect of non-payment of public holiday entitlement. For the reasons stated above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €60.00.

Complaint No. CA-00016203-003:

This is a complaint under the Organisation of Working Time Act, 1997, in respect of payment for annual leave. This complaint was withdrawn at hearing.