Complainant

Respondent

Anonymised Parties

A Public House Employee

A Public House

Representatives

Darach McNamara B.L. instructed by  Dillon Geraghty & Co Solicitors

Siobhan Browne HR Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00007196-001

26/Sep/2016

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

CA-00007196-002

26/Sep/2016

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

CA-00007196-003

26/Sep/2016

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

CA-00007196-004

26/Sep/2016

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

CA-00007196-005

26/Sep/2016

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

CA-00007196-006

26/Sep/2016

The complainant was employed by the respondent as a waitress from the 21st September 2013. She worked 20 hours per week and was paid €9.50 per hour. The complainant’s employment ceased with effect from the 13th May 2016.

The complainant stated that she was employed by the Respondent since September 2013 as a waitress. The complainant stated that in April 2016, staff were informed that due to structural issues at the place of work, alternative work locations and suitable training would be offered while refurbishments were carried out. The complainant stated that her established pattern of attendance was 12pm – 5pm four days a week excluding Fridays. The complainant stated that her last day in work had been Sunday 10th April 2016 and the premises had closed the next day. The complainant stated that she was asked to attend work on Saturday 23rd April 2016 but was unable to do so due to other commitments which had been previously explained to management. The complainant also stated that she had a number of days of annual leave booked for certain days in May and June 2016 and that this had also been arranged with management.

The complainant subsequently sought clarity from management by email dated 25th April 2016 relating to the closure of the premises, outstanding annual leave entitlements and other issues relating to her employment. The complainant stated that she was available to work her normal contractual hours that week. The complainant stated that the respondent did not respond to this email.

The complainant stated that, by letter dated 28th April 2016, she was offered two shifts on Friday 6th May 2016 (6pm-11pm) and Saturday 7th May 2016 (2pm – 10pm). The complainant stated that she was unable to work the shifts as she did not work on Fridays and had never worked at night.

The complainant outlined her concerns to Management by email dated 3rd May 2016 in relation to the offers of weekend night shifts and her safety concerns about using public transport alone at those times as she did not have her own transport available.

The complainant stated that management responded on 3rd May 2016 by registered post and offered four shifts in an alternative location; Tuesday 10th May 2016 12pm-5pm, Wednesday 11th May 2016 10am-3pm, Thursday 12th May 2016 10am-3pm and Friday 13th May 2016 10am-3pm. The complainant stated that she could not accept these shifts as the alternative location was not suitable to her and that one of the shifts on offer was a Friday.

The complainant outlined that her original work location was a 10-15 minute walk from her home. She stated that the first alternative location offered involved a 20 minute walk to the bus stop and a further 10-15 minute bus journey. The second alternative location involved a 20-minute walk to the bus stop and a further 15-20 minute bus journey as well as the requirement to work at night.

The complainant is seeking her redundancy entitlements on the basis that the location where she worked had closed on 11th April 2016 and the alternatives offered to her by the respondent were not suitable to her.

The respondent does not accept that the complainant’s position was redundant. The respondent stated that the original work location was closed on the 11th April 2016 for an unspecified time due to structural issues. The respondent was not in possession of all of the information relating to the staff and their patterns of attendance. The respondent stated that it met individually with all staff in an attempt to arrange shift patterns and hours of attendance etc.

The respondent stated that it engaged in correspondence with the complainant and continually offered her shifts which it considered to be suitable and in line with the hours that she had said she was available. The respondent stated that it had also offered to refund any public transport costs in relation to attending at the alternative locations.

The respondent stated that by registered letter dated 3rd May 2016, it offered the complainant a number of shifts in a suitable alternative location. The respondent stated that the complainant did not respond to its letter or make any contact in relation to it.

The respondent’s position is that it offered the complainant suitable alternative employment by corresponding with her on three occasions (20thApril, 28th April and 3rd May 2016) and she had not accepted the previous offers and had not responded at all to the letter dated 3rd May 2016.

The respondent wrote to the complainant on 16th May 2016 outlining its previous offers of alternative work and its offers to pay for public transport to ease the cost on the complainant. The respondent outlined that it could not continue to offer alternative work and to be left short staffed when the complainant did not attend for work or make any contact in respect of the offers made. On the basis that the complainant had not made any contact with the respondent, the respondent presumed that the complainant had left the employment.

This matter was originally arranged for hearing on 24th July 2017. The matter was adjourned to allow submissions in relation to the correct respondent named in the compliant. At the reconvened hearing of the 13th March 2018, the matter of the correct respondent had been clarified and is noted on the official record of this complaint.

In relation to the redundancy complaint, I find as follows:

The location where the complainant worked closed on 11th April 2016 on a temporary basis initially which subsequently became a permanent closure. The complainant worked four days a week from 12pm-5pm excluding Fridays.

The complainant’s last shift was on 10th April 2016 and the premises closed on 11th April 2016. The parties then entered into postal and email correspondence in relation to suitable alternative employment at other locations and at different days and times to the complainant’s established pattern of attendance.

The Law:

Section 7(2)(c) of the Redundancy Payments Act, 1967 states as follows:

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

Section 15(1) of the Redundancy Payments Act, 1967 states as follows:

15.(1) An employee shall not be entitled to a redundancy payment if —

(a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and

(d) he has unreasonably refused the offer.

Ultimately, the complainant did not accept that the alternatives put forward by the respondent were suitable on the basis that the offers were different to her established days/pattern of attendance and hours of work and involved significant additional time travelling to work. The complainant had also expressed her concerns in relation to travelling alone at night on public transport.

In all the circumstances of this case, I accept the complainant’s subjective view that the offers of alternative employment were not suitable to her for the reasons stated.

Having considered the submissions of both parties and all of the evidence adduced at the hearing of this complaint, I find that the complaint is well founded. The complainant is entitled to a redundancy payment as follows:

Date of commencement of employment: 21st September 2013

Date of cessation of employment: 13th May 2016

Gross weekly rate of pay: €190.00

This decision is based on the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

The respondent refutes the complainant’s assertion that she was unfairly dismissed. The respondent stated that the location where the complainant worked closed on 11th April 2016 for refurbishment. The respondent stated that following the closure of the work location, it met with all staff to clarify the specifics in relation to each staff members availability.

The respondent stated that it paid all staff for the week after the closure, while training was arranged for alternative positions at different locations. The respondent stated that it contacted the complainant on 20th April 2016 to offer her rostered shifts but she had not accepted them. The respondent subsequently offered her further shifts that were also refused by the complainant. The respondent stated that it once again offered the complainant a number of shifts by letter dated 3rd May 2016 and that no response was received to this correspondence. The respondent stated that it made three attempts to offer the complainant suitable alternative employment to no avail. As the complainant did not respond to the letter of 3rd May 2016 and had not attended for work, the respondent subsequently wrote to the complainant outlining its understanding that she had resigned from the employment.

The complainant claims to have been unfairly dismissed by the respondent. The complainant confirmed that she had been offered alternative shifts by the respondent but they were unsuitable for a number of reasons. Specifically, the complainant stated that the shifts offered were on days that she had said she was unavailable, or at times and locations that were different to her established pattern of attendance and hours of work. The complainant stated that she had sought clarification from the respondent in relation to her employment by email dated 25th April 2016 but that the respondent had failed to respond to her specific queries. The complainant stated that the respondents subsequent offer of work by letter dated 28th April 2016 included night shifts and a Friday evening, neither of which were part of her contractual hours and days of attendance. The complainant stated that she raised this with the respondent but by letter dated 3rd May 2016 it once again offered shifts that were unsuitable to her. The complainant stated that she felt she was being ignored and purposely being given awkward shifts that the respondent knew she could not attend. The complainant stated that she did not respond to the respondent’s letter of the 3rd May 2016 but remained available to work her contractual hours in a suitable alternative location. The complainant contends that she was subsequently dismissed by the respondent on 16th May 2016 and her P45 was enclosed in that correspondence.

This complaint relates to the closure of the respondent’s premises and the subsequent offer of alternative work to the complainant. A Redundancy complaint has also been submitted on the same set of facts. (CA-00007196-001 refers). The complainant cannot succeed in both claims.

The complainant outlined the specifics of the alternative offers of employment she received from the respondent and stated that she had become annoyed at the respondent’s treatment of her. She confirmed that she did not reply to the respondents offer of 3rd May 2016. The respondent subsequently sent a letter to her on 16th May 2016 enclosing her P45 on the basis that it presumed she had left the employment.

I find that the respondent acted reasonably in this case. The complainant had not attended for the shifts she had been offered and had made no contact with the employer for almost two weeks. In all of the circumstances of this complaint, I find that the complainant was not unfairly dismissed.

Having considered the submissions of both parties and all of the evidence adduced at the hearing of this matter, I declare that the complaint is not well founded.

The complainant stated that she did not receive a written statement of her terms and conditions of employment in accordance with the Terms of Employment (Information Act), 1994. The complainant is seeking compensation in relation to the breach of the legislation.

The respondent stated the parties had entered into a verbal agreement that the complainant would work four days per week commencing on 21st September 2013, from 12pm – 5pm and would be paid €9.50 per hour. The respondent stated that as agreement was reached between the parties it is not appropriate to award compensation to the complainant.

The requirement to provide a written statement of term and conditions of employment is provided in Section 3 of the Terms of Employment (Information) Act, 1994 as follows:

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, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, ]

(g) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section, ]

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

In the instant case, the respondent did not provide a written statement to the complainant in compliance with the terms of the legislation. Accordingly, I declare that the complaint is well founded.

Having considered the submissions of both parties to this complaint, I consider it fair and equitable in all of the circumstances to award the complainant €380 which is the equivalent of two weeks’ pay in compensation for the infringement of her rights under the legislation.

These complaints were withdrawn at the adjudication hearing.

This complainant is seeking her entitlement to a notice payment in circumstances where her position became redundant due to the closure of the premises where she worked. The complainant stated that due to her level of service with the respondent she was entitled to two weeks’ notice of her redundancy and is seeking payment in that regard.

The respondent’s position is that the complainant was not entitled to redundancy or notice as she had been offered suitable alternative employment when the location where she worked closed.

The complaint relates to notice entitlements. The complainant is seeking that she paid notice on the basis of her service with the respondent in circumstances where her position in the organisation became redundant. Adjudication Decision CA-00007196-001 found that the complainant was entitled to be paid redundancy.

The Law:

Section 4(1) and 4(2) of the Minimum Notice and Terms of Employment Act, states as follows:

4.(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

I find that the complainant was entitled to notice in line with the provisions of the legislation. Accordingly, I find that the complaint is well founded.

The respondent is required to pay the complainant two weeks’ pay in respect of notice entitlements. This amounts to a payment of €380.00 gross.

Suitable alternative employment, Unfair Dismissal, Minimum Notice, written contract of employment