ADJ-00015251

Complainant

Respondent

Anonymised Parties

Assistant Manager

Hospitality Provider

Representatives

Peninsula Group Limited

Act

Complaint Reference No.

Date of Receipt

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

CA-00019746-001

13/06/2018

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

CA-00019746-002

13/06/2018

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

CA-00019746-003

13/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00019746-004

13/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00019746-005

13/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00019746-006

13/06/2018

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

CA-00019746-007

13/06/2018

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

CA-00019746-008

13/06/2018

The Complainant commenced her employment with the Respondent on 7th March 2017. Her employment was terminated on 4th May 2018. The Complainant referred a number of claims to the Workplace Relations Commission on 13th June 2018, as outlined below. The Complainant was in attendance at the hearing venue at the scheduled starting time. There was no appearance by or on behalf of the Respondent at the hearing. I confirmed that a letter had issued notifying the Respondent’s representative of the date, time and location of the hearing. Having been satisfied of this, I waited some time to accommodate a late arrival. In the circumstances, I decided to proceed with the hearing.

On 28th November 2018 the Respondent’s representative contacted the WRC by way of email stating that they had not received a copy of the notice of hearing and were not told about the hearing date. The Respondent’s representative requested that this case be relisted for another day.

I am satisfied that the Respondent’s representative contacted the WRC on 24th July 2018 by way of email and provided the WRC with contact details including a postal address. I am satisfied that a letter issued on 12th September 2018 to that address and that the Respondent’s representative was informed in writing of the date, time and place at which the hearing to investigate the complaints would be held. I note that the letter was not returned by An Post to the sender as of 4th December 2019. I also note that a correspondence was also issued to the same address on 26th October 2018 and the Respondent’s representative received same. In the circumstance, I find that the Respondent did not provide a satisfactory explanation of its non-attendance at the hearing.

The Complainant submits that she was not given compensation for working on a Sunday and none of her payslips had any compensation for Sunday working.The Complainant submits that she worked 150.75 hours on Sundays and seeks compensation in that regard. The Complainant submits that she inquired with the Respondent about the matter and was told that the Respondent will get back to her. The Complainant submits that as far as she is aware some employees received a premium of 30%.

The Respondent did not forward any written submissions in response to this complaint and did not attend the adjudication hearing.

Section 14 of the Organisation of Working Time Act applies. Section 14(1) of the Act states:   “14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or(d) by a combination of two or more of the means referred to in the preceding paragraphs.”

In Park House Hotel Ltd. v Wlodarczyk DWT 24/2016, the Labour Court said that what was intended by this section was that a worker who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive if they were not so obliged. In Viking Security Ltd v Valent DWT 89/2014, the Labour Court held that it could only be satisfied that an employee had obtained his or her entitlements under this section “where the element of compensation for the obligation to work on Sunday is clearly discernible from the contract of employment or from the circumstances surrounding its conclusion”.

The Complainant’s case is that she was required to work on Sundays and was not compensated for doing so. The Complainant’s contract is silent on the issue of Sunday premium. The hearing was not provided with the details of Sunday hours in the six months immediately preceding this complaint. However, the Complainant’s records of hours worked for the period from 8th March 2017 to 11th October 2017 show that she worked on average every second Sunday (some 17 out of 34 Sundays).

Based on the uncontested evidence of the Complainant I find that she did not receive a premium for work performed on Sundays.

Based on the uncontested evidence of the Complainant I declare this complaint well-founded. I direct the Respondent to pay the Complainant €500 in compensation for breach of Section 14 of the Act.

The Complainant submits that she did not receive her annual leave and was not paid her accrued annual leave entitlements on termination of her employment. The Complainant gave evidence confirming that at the time of the sudden termination of her employment she was due 194.28 hours (€2,718.52) and exhibited her calculations in that regard. Her calculations were based on 8% of the hours worked at the rate of €14 per hour (€546 / 39 hours). The Complainant argued that any time off she took over the course of her employment was in lieu of overtime.

The Respondent did not forward any written submissions in response to this complaint and did not attend the adjudication hearing.

The Complainant submits that she did not receive her correct annual leave entitlements.

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

“(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

a)      4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

b)      one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

c)       8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

Section 23 provides that on termination of the employment an employee is entitled to be paid all accrued annual leave due and not paid. The employer must compensate the employee for any unused annual leave that was accrued during the leave year during which the employment ceases. If the employment ceases in the first half of the leave year, the employee must be compensated for any annual leave accrued in that leave year and the previous leave year. I note that, as per the Complainant’s Terms of Employment the Respondent’s annual leave year runs from January to December.

Based on the uncontested evidence of the Complainant I declare this complaint well founded. I direct the Respondent to pay the Complainant €2,544 in respect of the annual leave due and not paid on termination of the employment (approximately 4.66 weeks of annual leave accrued for the period 7th March 2017 – 4th May 2018).

In addition, I direct the Respondent to pay the Complainant €1,000 in compensation for breach of her rights under this Act.

The Complainant submits that upon filing a grievance complaint of escalating bullying and non-action and intimidation by management she was transferred to a different unit to cover maternity leave with the assurance of another position thereafter. The Complainant submits that, as a result she was dismissed after the maternity cover role ended. The Complainant submits that her rate of pay was reduced from €14.35 to €14 per hour. The Complainant submits that she did not receive notification of changes to her terms and conditions of employment for this new position.

The Respondent did not forward any written submissions in response to this complaint and did not attend the adjudication hearing.

Section 5(1)(a) of the Terms of Employment (Information) Act, 1994 provides that “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 Complainant argued that terms and conditions of employment were altered after she was moved to another unit in October 2017. She claimed that her rate of pay was reduced from €14.35 (€20,000 / 52 weeks/ 37.5 hours) to €14 per hour (€546 /39 hours). She claimed that she did not receive any notification of these changes.

I note that the Complainant’s Terms of Employment issued and signed by Ms C, Catering Manager on 10th July 2017 provide for an annual salary of €20,000 for 37.5 hours week.

Based on the uncontested evidence of the Complainant I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €500 for breach of the Act.

The Complainant submits that she was unfairly dismissed. She submits that she filed a complaint of bullying and followed up with a formal grievance with her manager, Ms K. The Complainant submits that the Respondent did not comply with the procedures in relation to the said complaint / grievance and, as a result the bullying escalated. The Complainant submits that consequently she tendered her notice on 22nd September 2017. The Complainant submits that, at that juncture, the Respondent offered her a move to another unit.

The Complainant submits that the management attempted to pressure other staff members into making false statements about her. Additionally, the Complainant claims that her days/ hours of work were changed to make her work more difficult and challenging for her. The Complainant claims that she had highlighted to the Respondent her family circumstances and she was employed on agreed days/ hours pattern. The Complainant submits further that the work laptop was removed from the office and she no longer had access to work related emails, and her duties were being stripped away one by one and her role towards the end was mainly a catering assistant role. The Complainant submits that, as a result of her tendering her notice she was offered another position in a different location. She was informed at the time that she would cover maternity leave and, once the maternity leave was over she would be moved to another role at a named location. The Complainant submits that on numerous occasions she was reassured that there was loads of work for her on completion of maternity cover. The last such reassurance was on 18th April 2018 at a meeting when she once again asked if there was work once the cover period ended and the Manager, Ms K replied “Yes, loads”. The Complainant submits that the period of maternity cover required of her was more than 6 months and the assurance of continued employment was a ploy to keep her in the role. The Complainant submits that as the 3rd May 2018 approached she received no return calls or emails answered. The Complainant submits that on 3rd May 2018 at 5.08pm (she finished work at 5pm) her manager, Ms K sent her Whatsap message “Hiya will you call me tomorrow after 10.30?? Last day?????? Yikes!”.

The Complainant submits that she received no notice and understood from the message that there was no new position coming up for her despite promises. The Complainant submits that she sent an email to her manager, Ms K on 14th May 2018 asking if there are any positions /work open. The Complainant argues that she believes now that the plan was all along to get rid of her as, in addition to her own grievances she also flagged a number of other issues. She raised the matter of payment of incorrect pay and other matters related to transfer of undertakings. She also raised a major concern in respect of non-provision of a risk assessment for a pregnant woman and the abusive treatment the pregnant woman received. Furthermore, she reported non-compliance re: HACCP and the non-disclosure to Health Inspector. She also noted non-adherence to procedures and disciplinary actions used as a bullying tactic. The Complainant claims that she also flagged concerns in relation to lack of written statements of wages for the staff.

The Complainant submits that she was contracted to work 37.5 hours but her average working week being 51-60 hours with one week being 78 hours. The Complainant claims that she did not receive appropriate training. She also claims that, the non-availability of required resources to perform tasks left her in a position where she had to use her own car and had an accident where her car was damaged. The Complainant submits that at some stage another manager’s (Ms A) job was advertised without the knowledge of the person in question who became aware of this when an email was accidentally copied to her work email. The Complainant submits that, following hospitalisation due to exhaustion Ms A took the matter of excessive hours up with her manager and was later offered another position in a different location and with a significantly reduced salary. The Complainant claims that she became aware that her position was also verbally advertised.

The Complainant submits that there was no disciplinary or performance issues and she can only suspect that she was dismissed due to the expiry of the maternity cover.

The Complainant submits that the dismissal had a significant effect on her and her family. She is a single mother. She started a new employment as a kitchen porter at the end of July 2018. She is paid some €130 less a week. She submits that she was in receipt of Job Seekers Allowance between May and July 2018. She claims that as a result she also lost Family Income Supplement (€107 a week).

The Respondent did not forward any written submissions in response to this complaint and did not attend the adjudication hearing.

Section 1 of the Act defines dismissal in the following manner: “dismissal”, in relation to an employee, means— (a)the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b)……”

Section 6(1) states: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4): “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 2(2) of the Unfair Dismissal Act stipulates that: “Subject to subsection (2A), this Act shall not apply in relation to—

(a) dismissal where the employment was under a contract of employment for a fixed-term made before the 16th day of September, 1976, and the dismissal consisted only of the expiry of the term without its being renewed under the same contract, or

(b) dismissal where the employment was under a contract of employment for a fixed-term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid, or

(c) dismissal where the employee's employer at the commencement of the employment informs the employee in writing that the employment will terminate on the return to work with that employer of another employee who is absent from work while on protective leave or natal care absence, within the meaning of Part IV of the Maternity Protection Act 1994, or is absent from work attending ante-natal classes in accordance with section 15A (inserted by section 8 of the Maternity Protection (Amendment) Act 2004), or for breastfeeding in accordance with section 15B (inserted by section 9 of the Maternity Protection (Amendment) Act 2004), of the first mentioned Act and the dismissal of the first mentioned employee duly occurs for the purpose of facilitating the return to work of that other employee], …”

The Complainant submits that she was unfairly dismissed. The Respondent did not attend the adjudication hearing to refute the claim.

The Complainant outlined a number of issues which arose during the period of her employment and which, she asserted could have influenced the Respondent’s decision to dismiss her. The Complainant claimed that, following a grievance she had raised she was moved to another location to initially cover maternity leave with the assurance that she would be then moved to another position. The Complainant claimed that at no stage was she informed that her contract would be terminated at the end of the maternity cover. The Complainant claimed that she was repeatedly reassured by the Respondent that she would move to another position after the maternity cover. The Complainant submitted that on the last day of the maternity cover she received a Whatsap message from her Manager saying: “Hiya will you call me tomorrow after 10.30?? Last day?????? Yikes!”. She claimed that she was told that there was no work / positions available and her P45 was issued to her. The Complainant submitted that she further inquired by email of 14th May 2018 if there is any work open “…just wondering if anything had changed since we spoke on Friday, I know you said there was no work / positions open but never know something may have change over the weekend.” The Respondent replied on the same day: “Nothing on the horizon at the moment but will keep you posted”.

The Complainant submitted that there was no disciplinary or performance issues and she can only suspect that she was dismissed due to the expiry of the maternity cover.

I find that the Complainant was employed on 7th March 2017 by the Respondent under a permanent contract of employment. Following a grievance raised, in mid-October 2017 the Complainant was offered a move to another location. The Complainant did not receive a new written statement of her terms and conditions of employment and believed that these remained unchanged. The Complainant was certain that no changes in her employment status were brought to her attention and she was unaware that her employment status could be changing from that of a permanent employee to that of a temporary fixed-term employee. The Complainant argued that on numerous occasions she was assured by the Respondent that she would be moved to another location/ position after the expiry of the maternity leave cover. The Complainant noted that she is a single mother who never relied on a social welfare system and she would not possibly consider moving from a permanent job to a fixed term one. Based on the evidence before me I find it unlikely that the Complainant would have freely entered into such a contract if she had full knowledge of its implications i.e. termination of her permanent employment in favour of a temporary one. I am not satisfied that such an agreement was entered into on the basis of informed consent. In that regard I follow the reasoning of the Labour Court in Malahide Community School v Conaty UDD1752 and UDD1837.

On the uncontested evidence of the Complainant I find that there was no discussions or consideration given to the Complainant relinquishing her employment status as a permanent employee and accepting less favourable terms on a fix-term basis. Crucially, the Complainant was not informed “in writing that the employment will terminate on the return to work with that employer of another employee who is absent from work while on protective leave…” I am therefore, of the view that the Complainant’s earlier permanent contract should prevail. In the circumstances, and based on the uncontested evidence of the Complainant, I find that the Complainant was unfairly dismissed when her contract was terminated at the end of the maternity cover.

In Sheehan v Continental Administration Co Ltd (UD858/1999) the EAT stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

I am satisfied that the Complainant has made extensive efforts to mitigate her loss based on the documentation submitted.

The Complainant submitted that she started a new employment in the last week of July 2018. As she was unable to secure a managerial position she now works as a kitchen porter / catering assistant. She earns approximately €130 less per week. As a result of the changes in her circumstances she also lost her Family Income Supplement (some €107 a week).

For the aforesaid reasons, I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent. I award the Complainant compensation in the amount of €15,000.

The Complainant submits that she was given no notice that she was being dismissed. The Complainant submits that after her shift on the last day of the maternity cover she received a Whatsap message from her Manger on saying “Hiya will you call me tomorrow after 10.30?? Last day?????? Yikes!”. She was told that there is no work / position for her and her P45 was issued to her thereafter.

The Respondent did not forward any written submissions in response to this complaint and did not attend the adjudication hearing.

Based on the uncontested evidence of the Complainant, I find that the Complainant had in excess of 1 years’ service with the Respondent at the time her employment was terminated. Therefore, the Complainant had accrued a statutory entitlement to one week notice in accordance of the provisions of Section 4(2)(a) of the Act on the termination of her employment. However, as is clear from the terms of subs.(1), the period of notice required by the Act is a minimum period of notice. Under the terms, express or implied, of the contract of employment an employee may be entitled to more. In Jameson v MCW Ltd M 878/1983 the Tribunal unanimously ruled that “the statutory notice period should occupy the last appropriate number of weeks of the contractual notice”. The Complainant’s Statement of Terms and Conditions of Employment provided for a period of notice of 4 weeks in respect of the employees with service between 1 year and 3 years.

Accordingly, I find that the Complainant is entitled to compensation in respect of a four weeks’ notice.

I find that the complaint is well founded, and I order the Respondent to pay to the Complainant the sum of €2,184.

The Complainant submits that she was not paid her annual leave, public holidays and Sunday premium. The Complainant also submits that she is owed €329 in respect of purchases she had paid with her own money. The receipts were sent to the Respondent. The Complainant presented emails exchange in that regard.

The Respondent did not forward any written submissions in response to this complaint and did not attend the adjudication hearing.

The Complainant’s claims in respect of annual leave, public holidays and Sunday premium are dealt with under CA-00019746-002, -008 and -001 respectively.

Section 1(1) of the Payment of Wages Act provides the following definition of “wages”

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice: Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.

The money in question was paid by the Complainant for purchases for the Respondent’s organisation. The Complainant claimed that the receipts were submitted to the Respondent. The Complainant argued that it was a standard practice.

I am satisfied that the payment does not fall within any of the categories of payments that shall not be regarded as wages as per Section 1 of the Act. Moreover, I note that the Respondent in its email of 28th May 2018 stated “I am getting a cheque raised…” and explaining that “it is just taking time as I have no receipts and need Director level to sign off for this”. Further, in the email of 31st May 2018 the Respondent stated that the payment is “…being raised separately and is delayed due to no receipts available but is in progress.” I am therefore satisfied that it is a sum which is properly payable to the Complainant. Consequently, it is a sum to which the Complainant is properly entitled.

On the uncontested evidence of the Complainant I declare this complaint is well founded. I order to Respondent to pay the Complainant €329 net in respect of this claim.

The Complainant submits that she was required to work more than the maximum permitted hours. The Complainant submits that she worked up to 78 hours a week and up to 96 hours without a day off. The Complainant submits that she worked, on average 55 hours a week.

The Respondent did not forward any written submissions in response to this complaint and did not attend the adjudication hearing.

The Complainant claimed that she was required more than the maximum permitted hours.

Sec. 15 (1) of the Organisation of Working Time Act, 1997 stipulates that “An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over period …that does not exceed a) 4 months or b) 6 months…”

There was no evidence available to show the hours of work hours in the six months immediately preceding this complaint. The Complainant submitted her record of hours worked between March and October 2017 from which it appears that the Complainant worked up to 78 hours a week. The evidence offered by the Complainant supports her claim that she worked excessive hours on a regular basis. It appears that in the period of 18 weeks between 9th March 2017 and 12th July 2017 she worked on average above the permissible 48 hours a week.

On the uncontested evidence of the Complainant I declare this complaint is well founded. Taking all the circumstance of the case into account I direct the Respondent to pay the Complainant compensation of €500 for breach of the Organisation of Working Time Act, 1997.

The Complainant submits that she did not received her public holidays entitlements. The Complainant claims that she worked on all public holidays during her employment except 25th and 26th December 2017 and 1st January 2018. The Complainant claims that she worked approximately 12 hours on each of the public holidays.

The Respondent did not forward any written submissions in response to this complaint and did not attend the adjudication hearing.

On the uncontested evidence presented by the Complainant I find that the Complainant has not received her public holidays entitlements. The complaint was presented to the WRC on 13th June 2018. Therefore, the period that may be investigated is 14th December 2017 to the termination dated of 4th May 2018. I find that there were four public holidays within the period of my investigation, namely Christmas Day and St. Stephen’s Day of 2017, and 1st January, 17th March in 2018. The Complainant’s employment was terminated on 4th May 2018. I note that the May public holiday in 2018 fell on Monday 7th May.

Section 23. Compensation on cesser of employment of the Act provides:-

·         “(2) Where— (a) an employee ceases to be employed during the week ending on the day before a public holiday, and (b) the employee has worked for his or her employer during the 4 weeks preceding that week, the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day's pay calculated at the appropriate daily rate.”

Sec 21 (1) of the Organisation of Working Time Act on “entitlement in respect of Public Holidays” states “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.

I note that the Complainant confirmed that she was off on Christmas Day and St. Stephen’s Day of 2017 and New Year’s Day of 2018 and was paid her full salary during these weeks.

On the uncontested evidence of the Complainant I declare this complaint is well founded. I require the Respondent to pay the Complainant €218 in respect of the shortfall in payment for two public holidays and €150 in compensation for the breach.

Unfair dismissal-annual leave-public holiday- minimum notice- excessive hours-