ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00015538
| Complainant | Respondent |
Anonymised Parties | An employee | An employer |
Representatives | Self | Did not attend. |
Complaint(s):
Act | Complaint/Dispute 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-00020106-002 | 29/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00020106-004 | 29/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00020106-005 | 29/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00020106-006 | 29/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00020106-007 | 29/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994 | CA-00020106-008 | 29/06/2018 |
Date of Adjudication Hearing: 26/10/2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant was employed by the Respondent as a kitchen helper on two separate occasions. The second period of employment is the relevant one in relation to the complaints received by the Workplace Relations Commission (WRC) on 29th June 2018. There are six complaints, they are as follows: CA – 00020106 – 002. – complaint referred under section 27 of the Organisation of Working Time Act, 1997. CA – 00020106 – 004 – complaint referred under section 7 of the Terms of Employment (Information) Act, 1994. CA – 00020106 – 005 – complaint referred under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. CA – 00020106 – 006 – complaint referred under section 77 of the Employment Equality Act, 1998. CA – 0020106 – 007 – complaint referred under section 11 of the Minimum Notice & Terms of Employment Act, 1973. CA – 00020106 – 008 – complaint referred under section 30 & 31 of the Maternity Protection Act 1994. |
Summary of Complainant’s Case:
The following is a summary of the complaint as explained by the Complainant. The Complainant commenced working in the “Sopot” restaurant in November 2016. She had been working as a kitchen helper for about 20 hours per week. In January 2017 she received a contract, it was at this point that she was informed that she had now been officially employed. The Complainant discovered she was pregnant at the end of January and told other employees about it in February. In March the Complainant suffered a miscarriage. She was told by her doctor to stay home and was given a medical certificate for a week initially after the hospitalization and another week from her GP to recover. The Complainant took the medical certificates to her employer and he said that she was no longer required because he had employed another person to do her work. The Complainant was never issued with payslips. The Respondent only showed them to her on his email on his phone and claimed that he could not send them to her as he was having mail problems. A P45 was received by the Complainant. After a period of unemployment due to the miscarriage, the Complainant decided to go back to work and she contacted her former boss to enquire if she could start working with them again if that was possible. It was agreed and the Complainant started working on 14th October 2017 on the same position and pay as previously. The Complainant never received a contract at this point, payment was agreed verbally and the Complainant was paid in cash. The Complainant made a few attempts to receive her payslips and contract from the start date but was always told that he cannot do it at the moment because either he is busy right now or he is changing his accountant at the moment etc. The Complainant discovered she was pregnant again in the middle of December and decided not to tell anyone until the 12th week of her pregnancy. At the end of January 2018, the Complainant decided to inform her employer of the pregnancy. She informed the chef of her condition and he informed the Respondent the very next day. I received a phone call from the owner’s partner who told me that I was cheating them, trying to use them for my purposes only and was very angry about the fact I was pregnant again. She told me to come to the restaurant the next day and we will discuss the whole situation. When the Complainant arrived there, on 4th February 2018, she was told that due to her pregnancy, they did not want her to work there anymore as she would not be able to fulfil her duties later on. They told the Complainant not to come to work anymore. She was let go immediately. Due to the fact she never received a contract and she was never registered in the tax office as an employee her PRSI contributions were never paid, The Complainant was not entitled to maternity benefits or any other benefits at that time. The Complainant had informed her employer that the pregnancy was going well and that she can continue with her work. The Complainant sums up her position as: 1. I was let go due to the fact of my pregnancy. 2. I have not been registered with tax office. 3. I have not been paid any holiday time. 4. I have not received any notice to leave, just dismissed immediately. 5. I have missed the ability to receive any benefits connected with me being pregnant and I am fully dependent on my partner’s income, which puts us both in a very difficult situation. 6. My dismissal was unfair and on a prejudice basis which I have mentioned before.
|
Summary of Respondent’s Case:
The Respondent did not attend the hearing as scheduled. On the afternoon prior to the date of the hearing the Respondent sent an email to the WRC stating that he would not be attending, ha was no longer in business and that he had returned to Poland. |
Findings and Conclusions:
I found the Complainant to be credible at the hearing and have based my decisions on the uncontested evidence adduced from her at the hearing. CA – 00020106 – 002. – complaint referred under section 27 of the Organisation of Working Time Act, 1997. The Complainant received no annual leave entitlement or public holiday entitlement. I have calculated that the Complainant was employed for a period of 16 weeks and worked 20 hours each week. The total is 320 hours, the holiday entitlement due is 25.6 hours, this equates to €256.00. There were four Public Holidays during the period of employment and this amounts to 16 hours x €10 = €160.00. CA – 00020106 – 004 – complaint referred under section 7 of the Terms of Employment (Information) Act, 1994. No statement of the particulars of employment were issued to the Complainant. I find that the complaint is well found and under section 7 (2) (d) of the Act I order the Respondent to pay to the Complainant compensation of 4 weeks’ pay i.e. a sum of €800.00 CA – 00020106 – 005 – complaint referred under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. This is not applicable to this complaint and therefore fails. CA – 00020106 – 006 – complaint referred under section 77 of the Employment Equality Act, 1998. There is no doubt that the Complainant was discriminated against when the Respondent dismissed her from employment. Under section 82 of the Act I order the Respondent to pay compensation to the Complainant in the amount of €2,600.00 (being an amount equivalent to six months’ pay). CA – 0020106 – 007 – complaint referred under section 11 of the Minimum Notice & Terms of Employment Act, 1973. Having 16 weeks service the minimum notice period under this Act is one weeks’ notice. I order the Respondent to pay a sum of €200.00 to the Complainant in lieu of notice. CA – 00020106 – 008 – complaint referred under section 30 & 31 of the Maternity Protection Act 1994. Section 30 (1) of this legislation reads as follows: Subject to subsection (2), this part applies to any dispute between an employee and the relevant employer relating to any entitlement of the employee under Parts ii to iv (or any matter arising out of or related to such an entitlement) other than – (a) A dispute relating to the dismissal of an employee; or …….. As the Complainant was dismissed from employment this complaint cannot proceed. In summary: CA – 00020106 – 002 – Total compensation of €416.00 CA – 00020106 – 004 – Total compensation of €800.00 CA – 00020106 – 004 – Total compensation of €2,600.00 CA – 0020106 – 007 – Total compensation of €200.00 The Respondent is ordered to pay the amounts shown above to the Complainant within a period of 42 days from the date of this Decision.
|
|
Decision:
Section 41 of the Workplace Relations Act 2015 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.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
As outlined above. |
Dated: 5th November 2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Dismissed during pregnancy. |