ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00014539
Parties:
| Complainant | Respondent |
Anonymised Parties | A Restaurant Manager | A Restaurant |
Complaints:
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-00018983-001 | 05/05/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00018983-002 | 05/05/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00018983-003 | 05/05/2018 |
Date of Adjudication Hearing: 25/10/2018
Workplace Relations Commission Adjudication Officer: Caroline McEnery
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment Information Act, 1994 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 worked as a Restaurant Manager for the respondent from May 2016 until April 2018. In April 2018, the Respondent informed staff that he was withdrawing his dealings with the Restaurant and that his business partner and his business partner’s wife would take over the business. Staff were informed that their employment with the Respondent would be terminated and that they could reapply for positions with the new operators of the business. The Complainant’s pay varied from week to week but averaged €276 per week. The Complainant ceased employment with the Respondent on 13th July 2018. There are three issues in dispute. |
Summary of Complainant’s Case:
CA-00018983-001 The Complainant states that she was not notified in writing of a change to her terms of employment. The Complainant states that in April 2018, some of her managerial duties were taken over by the wife of a Company shareholder. The Complainant states that her working hours were reduced to 18 hours per week, which was a loss of 12 hours per week. The Complainant states that these hours were subsequently offered to another member of staff, increasing that staff member’s hours to 30 per week. The Complainant stated that the reduction in her hours continued for three weeks and then went back to her normal hours after she complained to the business co-owner and co-director who was present at the hearing. CA-00018983-002 The Complainant states that she did not receive a statement in writing on her terms of employment. The Complainant states that in November 2016 she signed a contract of employment but did not get a copy of this contract, even though she had requested it. The Complainant said that this only became an issue when she was notified of termination of her employment in April 2018. CA-00018983-003 The Complainant states that she was not notified in writing of a change to her terms of employment. The Complainant states that in April 2018, she was verbally notified of the Complainant withdrawing his dealings with the Restaurant. The Complainant states that she verbally received one months’ notice of termination of her employment. The Complainant states that she requested this in writing on several occasions but did not receive it. The Complainant received a response letter from the Complainant stating that the matter had been referred to the Company solicitor. The Complainant stated that staff were told that they could reapply for their positions and some were offered seasonal work in the Respondent’s other business. The Complainant stated that two staff told her that they were approached to stay employed in the Restaurant. The Complainant resigned from her position on 13th July 2018 as she had been told that her employment would be terminated. She stated that she needed the job but her employers were not communicating with her about what was happening. The Complainant commenced employment in a new role on 30th July 2018 earning €235 per week. The Restaurant is still operating under the same name and staff were informed not to say anything to customers about the change in operators as all would remain the same. |
Summary of Respondent’s Case:
The Respondent confirmed he was the co-owner and director of the company but his business partner had most of the dealings with this employee. This was his evidence. CA-00018983-001 In relation to the Complainant’s claim that she was not notified in writing of a change to her terms of employment, the Respondent stated that he thinks his business partner took over her managerial duties. CA-00018983-002 In relation to the Complainant’s claim that she did not receive a statement in writing on her terms of employment, the Respondent stated that he was not sure about that as his business partner looked after that. CA-00018983-003 In relation to the Complainant’s claim that she was not notified in writing of a change to her terms of employment, the Respondent stated that he was not sure about that as his business partner looked after that. |
Findings and Conclusions:
CA-00018983-001 Section 5 (1) of the act states that "…..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". In relation to the Complainant’s claim that she was not notified in writing of a change to her terms of employment, the Adjudicator finds that the complaint is well founded and finds that the Complainant was not notified in writing to a change of her terms of employment. CA-00018983-002 Section 3 (1) of The Terms of Employment (Information) Acts 1994–2014 states, "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 relation to the Complainant’s claim that she did not receive a statement in writing on her terms of employment, the Adjudicator finds that the complaint is well founded. The Complainant did not get the opportunity to read, understand or get a copy of her terms and conditions of employment and was requested to sign it. This is not the intended purpose or requirement in the legislation. It is for both parties to be clear of the mutual agreement as per the terms and conditions of employment. This became an issue when the Complainant’s hours were reduced and she was unclear regarding her contracted hours of work. CA-00018983-003 Section 5 (1) of the act states that "…..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". In relation to the Complainant’s claim that she was not notified in writing of a change to her terms of employment, the Adjudicator finds that the complaint fails. The Complainant resigned from her employment of her own accord and even though the process which led to same seems to be flawed in terms of the fairness, that is not before me to consider. |
Decision:
Section 41 of the Workplace Relations Act 2015 and Section 7 of the Terms of Employment Information Act, 1994of the 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.
CA-00018983-001
Section 5 of the Act requires that an Employer must notify an Employee of any changes that occur in any of the particulars of the Employee’s terms of employment. This notification must be in writing and must include the nature and date of the change as soon as possible but no later than one month after the changes take effect.
The Complainant was not provided with written notification of these changes and so I order the Respondent to pay the Complainant €276 [which is equivalent to 10 hours pay for each of the three weeks that her hours of work were reduced for].
CA-00018983-002
Section 3 of the Act requires that an Employer must provide an employee with a written statement of Terms and Conditions of Employment within two months of the commencement of the employment. The Complainant was not provided with this statement. In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I order the Respondent to pay the Complainant €1,104 compensation [which is 4 weeks of the Complainant’s remuneration].
CA-00018983-003
The Adjudicator finds that the Respondent has not breached Section 5 of The Terms of Employment (Information) Acts 1994–2014 regarding this specific complaint and the claim fails.
Dated: December 17th 2018
Workplace Relations Commission Adjudication Officer: Caroline McEnery
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