Complainant

Respondent

Anonymised Parties

Sales Assistant

A Retail Shop

Representatives

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-00015571-001

03/11/2017

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

CA-00015571-002

03/11/2017

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

CA-00015571-003

03/11/2017

The complainant was employed by the respondent as a shop assistant from 28th of June 1997 until the 7th of October 2017 when the shop closed. She was paid €487.50 gross weekly wage. The complainant is claiming a redundancy payment. She is also claiming that the that the terms of employment statement did not comply with the terms set out in the Terms of Employment (Information) Act, 1994, and she was not given proper breaks during the working day in accordance with the Organisation of Working Time Act 1997.

The complainant said that on the 15th of September 2017, she was informed by email by the respondent that the shop which was in the [named] Shopping Centre was closing. She was offered a manager’s position in a new branch which was opening in Blanchardstown. She refused the offer informing the respondent that the job offer differed substantially from the provisions in her current contract.

The respondent then offered to relocate her to a position in either the St. Stephen’s Green SC or a store in Wicklow Street. The respondent pointed out that the latter store may also close to stem losses.

The complainant said that she is entitled to redundancy as the alternative post offered were not suitable for the following reasons:

i)                    The respondent did not issue her with a clear job description for any of the alternative positions offered;

ii)                   The alternative locations offered were not near the named store, a location she was familiar with and comfortable working there for twenty years;

iii)                 The Wicklow Street shop might close and she was not persuaded that long-term employment existed in this shop;

iv)                 The Blanchardstown and St. Stephen’s Green shops were located under a concession business model within a large retail store in each shopping centre. This would be a completely different working experience for her to the boutique retail shop environment that she had been accustomed to for twenty years. She said that she would be overwhelmed working in and under this style and type of retail arrangement.

The respondent submitted that trading in the store in the Merrion SC had steadily declined to such a point that it was making significant losses.   A decision was taken to close the store. The complainant was informed by email on the 15th of September 2017 and she was offered a managerial post in the newly opened Blanchardstown Store which was in a large retail store in the shopping centre.   The complainant raised concerns about the impact of different and longer trading hours in the new store.   The respondent said that she assured her that she would have full control over her working hours and would have preference over the new employees and would do up the rosters.   She would not have to work on a Sunday except on one or two Sundays coming up to Christmas or in an emergency. After four weeks, the complainant declined the offer.

The complainant was then offered the same position in the St. Green Shopping Centre or the Wicklow Street branch. The respondent told her that the latter might be temporary as the shop may have to close also. The complainant declined both offers and sought redundancy.

The respondent submitted that the complainant moved in the past when the Dun Laoghaire store closed to Merrion. She said that the complainant in this instance was given very reasonable offers of alternative work, where she would not suffer any disadvantages in relation to working hours or commuting which the complainant did not accept. It was submitted that the complainant did not qualify for redundancy.

The question for me to decide is whether the complainant is entitled to redundancy or whether the refusal of the offers of alternative employment was unreasonable. The respondent disputes the claim for redundancy and states that the employee was offered suitable alternative employment. Section 15(2) provides that an employee is not entitled to redundancy if:

“(a) his employer has made to him in writing an offer to renew the 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 differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.”

I note that the complainant was employed in a standalone shop within the Merrion SC for twenty years and that the alternative position offered in Blanchardstown was a managerial position in a concession shop within a large retail store. In light of the test under subsection (c) above, which is a subjective test, I have considered whether this was suitable employment from the complainant’s perspective. The complainant said that she would now be working in a concession store and would be under the control of the large retailer and would no longer be in a location she was familiar with and in which she was comfortable working in for twenty years. She was also concerned that the position of manager differed substantially from the position she held in the shop in Merrion SC and she was not issued with a clear job description for either location.   Having considered the reasons put forward by the complainant for refusing the offer, I am not satisfied that the positions offered in either Blanchardstown or St. Stephens Green constituted suitable alternative employment for her. Given the lack of clarity around the new positions as well as the new work environment for the complainant, in my view, it was not unreasonable for her to refuse these offers.

As regards the position in Wicklow Street, the respondent considered this position temporary as she was considering closing this shop for the same reasons. It was not unreasonable for the complainant to refuse this offer given the uncertainty and the fact that she could again lose her job after moving there.

Therefore, I am upholding the complaint and I find that the complainant is entitled to her statutory redundancy. I order the respondent to pay the complainant her statutory redundancy within 42 days of the date of this decision.

I find that the complainant was dismissed for reasons of redundancy and that she is entitled to a statutory redundancy payment based on the following:

Date of Commencement         28th June 1997

Date of Termination                 7th October 2017

Gross Pay Weekly                       €487.50

Any award under the Redundancy Payments Act is subject to the complainant having been in insurable employment for the relevant period under the Social Welfare Acts. I order the respondent to pay the complainant her statutory entitlements as per the terms of the Redundancy Payments Act within 42 days of the date of the decision.          

The complainant said that when she commenced employment in June 1997and she was not issued with a statement of terms and conditions of employment within the prescribed 2 month period after the commencement date. However, she received a statement about ten years after the commencement of the employment and she states it omits the following information:

I)                    The commencement date of the employment;

II)                  Details of rest periods and breaks;

III)                 A reference to collective agreements (if applicable)

IV)                The document is neither signed, or dated by the employer

Submitted that as a result of the omissions, she said that she had great difficulty establishing the correct commencement date of the employment and had to seek help from Revenue.

The respondent said that they now issue each employee a contract of employment, but this has not always been the case. Once the retail industry recognised the importance and the requirement for such documentation, the respondent formalised the HR documentation and issued contracts to all employees.   The complainant was provided with and signed a contract of employment about ten years ago. The respondent submitted that the complainant did not raise any grievance about the contract.

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 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”

And

S.I No. 49/1998 – Terms of Employment (Additional Information) Order, 1998 provides:

“3. (1) In relation to an employee who enters into a contract of employment after the commencement of this Order, the employee's employer shall, within two months after the employee's commencement of employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.”

I have examined the terms of employment statement given to the complainant and I find that it fails to comply with Section 3(1)(e) (the date of commencement), 3(4) of the Act (not signed by employer) and 3(1) of SI No 49/1998 (particulars of breaks) and accordingly I am upholding the complaint. I require the respondent to pay the complainant €150 compensation within 42 days of the date of this decision.

I declare that the complaints were well founded. I order the respondent to pay the complainant €150 compensation within 42 days of the date of this decision.

The complainant submitted that her employer did not make proper provision for her to take rest breaks while at work as set out under the legislation. She said that the normal weekly opening hours of the shop were as follows:

Monday, Tuesday, Wednesday and Friday 10.00am – 6.30pm, Thursday 10am – 7pm and Saturday 9.30 – 6pm.

The complainant said she worked 37.5 hours per week as follows Monday and Wednesday 10am to 6.30 pm, Tuesday 10am to 1.00pm, Thursday 10am to 7pm and Saturday 9.30 to 6.30pm. She said that for about ten years and up to the time the shop closed, she worked on her own during the day without any rest breaks. There were no policies for taking breaks. She said that she took her lunch at a time that the shop was not busy and she often had to stop eating to attend to customers and resume her lunch later. When she needed to attend the bathroom, she closed the shop and placed a note on the door to indicate she would not be too long away.

The respondent said that she refuted the allegation that the complainant did not get rest breaks. She said that the complainant had full autonomy in running the store.   She had her own set of keys and was permitted to close the shop as and when she needed to take a break. The complainant did not raise a grievance about not receiving rest breaks. She said on occasions when she visited the store it was closed and she would have to await the complainant’s return and she had no issue with that as they had a trusting relationship. The respondent said that there was no cover arrangement nor had she any arrangement that she would attend so that the complainant could have a break.

Section 12 of the Act requires an employer to provide rest intervals at work as follows:

“(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without   allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by   regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an   employee at the end of the working day shall not be regarded as satisfying   the requirement contained in subsection (1) or (2).”

Section 25 requires that the employer to keep records to show compliance with the Act.

It was accepted by the respondent that she had no arrangement in place for the complainant to take breaks and neither was there any records of the breaks. The evidence from the complainant which was not disputed by the respondent was that the shop remained open and that she consumed her lunch in a quiet period but that she was frequently interrupted. This does not comply with S.12 of the Act. The respondent should have had arrangements in place so that the complainant could take a break in accordance with the Act. I find therefore that the respondent failed to provide breaks to the complainant and failed to keep records.

Section 27(c) of the Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

( a ) declare that the complaint was or, as the case may be, was not well founded,

( b ) require the employer to comply with the relevant provision,

( c ) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years ’ remuneration in respect of the employee ’s employment.”

I declare that the complaint is well founded. I note that the complainant had not been provided with breaks for a period of ten years which is a very serious contravention of the Act. It will therefore merit a higher award of compensation than an occasional or technical breach of the Act. In calculating the compensation, I have looked at the number of hours the missed lunch breaks would amount to and the monetary value of these hours over a 10 year period. Taking the result of this exercise into consideration, I believe the amount of compensation which is just and equitable in the circumstances is €4,000.

I order the respondent to pay the complainant €4,000 within 42 days of this decision.

Redundancy Act, alternative work, Statement under the Terms of Employment (Information) Act Organisation of Working Time Act, No Breaks given for over 10 years,