ADJ-00012141

Complainant

Respondent

Anonymised Parties

Shop Assistant

Shop and Bar

Representatives

Bebhinn Murphy, B.L. instructed by Owen Carty Solicitors

Darina Kelly

Clodagh Kelly

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-00016103-001

01/12/2017

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

CA-00016103-002

01/12/2017

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

CA-00016103-003

01/12/2017

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

CA-00016103-004

01/12/2017

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

CA-00016103-005

01/12/2017

The Complainant contends that she was denied her statutory entitlements in relation to redundancy, lack of a written contract of employment, breaks during the working day, annual leave and public holiday entitlements.

The Complainant commenced work with the Respondent on or about 1st October 2006 shortly after she arrived in Ireland from her native Poland. She was employed in the shop during day time hours. From time to time she worked in the bar attached to the shop. Her rate of pay was €9.50 per hour and she worked 40 hours per week.

It is submitted that she did not at any stage receive a written contract of employment contrary to the terms of section 3 of the Terms of Employment (Information) Act 1994.

It is submitted that the Complainant was not afforded a break during the day where she was at liberty to leave the shop floor. This is in breach of section 12 of the Organisation of Working Time Act 1997.

The Complainant never received any benefit pursuant to section 21 of the Organisation of Working Time Act 1997 in respect of public holidays.

Section 19 of the Organisation of Working Time Act 1997 provides for employees’ entitlements to annual leave to a maximum of 4 working weeks. The Complainant submits that she was only granted a maximum of 3 weeks annual leave in any year. She was given a week off at Easter but at her own expense. She was allowed 2 weeks in summertime but was only paid €300 in respect of this period despite being entitled to full pay.

In relation to her claim for statutory redundancy payment, it is submitted that after the Complainant had worked in the employment for 11 years, the shop closed on foot of an environmental inspection closure order. As far as the Complainant is aware, it never re-opened. The Complainant was offered some hours work in the adjacent bar. It is submitted that this offer of alternative work was not suitable or appropriate.

The Respondent stated that this was a very small business, one small shop attached to the bar in a small village. Therefore there would be very little traffic / customers. The Complainant was able to take her breaks anytime in the day, there were tea making facilities available.   There was not enough business to take on anyone else to cover breaks. The shop has re-opened and opens from 10am to 2pm and from 5pm to 10pm. The bar opens from 12pm to 2pm and from 5pm to 12.00am. It is argued that the job is interchangeable between the shop and the bar. The shop gets around 12 customers per day. The Respondent accepts that there was no written contract, but again emphasises that the employment is small in that there were no other staff except the named Respondent, her husband and the Complainant. In relation to the redundancy claim, it is argued that the Complainant is not entitled to a redundancy payment as she was offered bar work, which offer was confirmed by letter to the Complainant on 9 November 2017.

Section 41 (6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

The complaints were received by the Workplace Relations Commission on 1st December 2017.         The cognisant time period therefore for these complaints is from 30th June 2017.

CA-00016103-001   Redundancy Payments Act 1967

From the evidence, I note that the Complainant worked mainly in the shop with occasional shifts in the bar attached to the shop. The shop closed in in or around 8th September 2017 due to a health inspection and did not re-open until late December 2017. I note that the Complainant was offered employment in the bar which was confirmed to her by letter on 9th November 2017 and she refused.   Section 15 of the Redundancy Payments Act 1967 provides:

“15 – (1) An employee shall not be entitled to a redundancy payment if

(a)    His employerhas 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].”

The Complainant in this case worked both in the shop and in the bar in the same location prior to the temporary closure of the shop. I note that the shop re-opened in late December 2017 and had the Complainant accepted the alternative work, it would likely have been of a temporary nature. However, this is a moot point as the Complainant expressed her refusal to accept the alternative employment. In the circumstances, and in accordance with the context of Section 15 as outlined above, I do not find that the Complainant is entitled to a redundancy payment and I do not uphold her claim.

CA-00016103-002   Organisation of Working Time Act 1997

The complaint here is that the Complainant did not receive her statutory entitlements under Section 12 of the Act which provides that :

“(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)”.

The Respondent in this case offered the evidence that there were ample opportunities to make tea and take breaks on the premises. I note the Respondent’s evidence that there may be no more than 12 customers in a day in a small shop in a small village. However, the lack of a proactive approach on the part of the Respondent means that I accept the evidence that she did not actively allow breaks. The onus is on employers in the legislation to allow breaks to employees in accordance with the section quoted above. In accordance with Section 27 of the Act, I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €760 compensation.

CA-00016103-003   Organisation of Working Time Act 1997

Section 19 of the Act provides for an employee’s entitlement to annual leave to a maximum of 4 working weeks. I note the evidence in this case which indicates that the Complainant was granted 2 weeks paid leave at a reduced rate. I find that the Complainant was not afforded her statutory entitlements for the 2017 leave year. In accordance with Section 27 of the Act, I find her complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €920 compensation.   

CA-00016103-004   Terms of Employment (Information) Act 1994

Section 3 of the Act provides that an employer shall furnish to the employee written statement of terms and conditions of employment within two months of commencement of employment.             It is common case in this instant case that the Complainant was not furnished with a written contract. I find her complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €760 compensation.

CA-00016103-005   Organisation of Working Time Act 1997

Section 21 of the Act provides that an employee shall be entitled to a paid day off or an additional day of annual leave or an additional day’s pay in respect of the nine public holidays which fall during the year. In this case, considering the time period referred to above, I find that the Complainant did not receive her entitlements in respect of the public holiday which fell on 7th August 2017.   In accordance with Section 27 of the Act, I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €80 compensation.