ADJ-00014548

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014548

Parties: 

Complaints:

Date of Adjudication Hearing: 25/10/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant worked as a Senior Chef de Partie for the respondent from May 2016 until May 2018. In April 2018, the Complainant was notified at a staff meeting that the business may be taken over or on failure to find alternative business investors, the business may close down. The Complainant was given one months’ notice that his employment would cease on 14/05/18. The Complainant took up employment on a part time basis with another company on 28/05/18. There are three issues in dispute. In relation to CA-00018984-003, an inspection took place regarding these health and safety matters and so this claim was withdrawn as a result.

Summary of Complainant’s Case:

CA-00018984-001: The Complainant stated that on 08/11/16 he was asked to sign a contract of employment, but he refused as he was not offered or allowed the time to read through the terms and conditions and was not presented with a copy of the contract.

CA-00018984-004: The Complainant states that on 14/014/18 he was called to attend a staff meeting with the Company Director and a shareholder and the shareholder’s wife, along with 8 other members of staff. At the meeting the Complainant was informed that his employment would be terminated on 14/05/18 and that he had one month to find alternative employment. The Company Director informed staff that he no longer wished to trade with the shareholder and his wife and that he would be withdrawing his involvement with the restaurant and would work solely in his other business. The shareholder present at the meeting told the Complainant that he would be taking over the running of the restaurant with his wife and that they would either be introducing a new investor to work with or selling the restaurant. The Complainant was told that in either case he would have no future employment with the restaurant as of 14/05/18. The Complainant asked for notification of his termination in writing and was assured that he would receive this by the following Monday 16/04/18. On Friday 20/04/18 the Complainant was informed by other staff members that the shareholder’s wife had prepared letters of notice to terminate employment but was awaiting the company director to sign them. The Complaint was informed that the company director refused to sign the letters on advice from his solicitor and therefore the Complainant did not receive any written notice. On Sunday 22/04/18, the Complainant approached the shareholder and again asked for written notification and he was told that this could not be furnished as the director would not sign the letters and was told that he would not need the letter anyway. The shareholder told the Complainant that the decision still stands and as on 14/05/18, the Complainant would not have any hours rostered to him.

The Complainant then sought advice from his solicitor and on the 24/04/08 he sent a letter of intent to take legal action against the company to the director, to the shareholder and to the shareholders wife. In these letters he requested a copy of the following:

• A copy of his terms of employment
• A copy of the company grievance and disciplinary procedure
• An explanation as to why he had suffered a reduction in working hours and a subsequent loss of earnings.
• An explanation as to why there had been non-compliance with health and safety standards.
• A copy of the company’s procedure for fair selection in a redundancy situation,
• Notice in writing of the termination of his employment
• An explanation as to why new members of staff had been recruited and appointed working hours that the Complainant would have usually worked.
• An explanation as to why the Complainant’s employment will not be transferred under company legislation in TUPE

On 02/05/18 the Complainant received two letters acknowledging his complaint and a suggestion that it would be referred to their solicitor. The Complainant received no further response to his request.

A copy of this letter and the response letters were furnished at the hearing.

The Complainant stated that he did not receive any further information regarding his position and no confirmation as to whether he would still be employed after 15/05/18.

The Adjudicator enquired as to what the specific changes to the Complainant’s terms and conditions were and the Complainant stated that there was a change to his rostered hours during his notice period. The Complainant stated that he was working 42 hours per week prior to his notice and this was reduced to 25 hours during his notice period, while also forced to take his annual leave during this notice period.

Summary of Respondent’s Case:

CA-00018984-001: The Respondent stated that his business partner was looking after the contracts and so could not confirm whether the Complainant received a copy of his terms of employment.

CA-00018984-004: The Respondent stated that all staff hours were reduced due to the seasonality of the restaurant business.

Findings and Conclusions:

CA-00018984-001

Section 3 (1) of The Terms of Employment (Information) Acts 1994–2014 states,

"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."

In relation to the Complainant’s claim that he did not receive a statement in writing on her terms of employment, the Adjudicator finds that the complaint is well founded. The Complainant did not get the opportunity to read, understand or get a copy of his terms and conditions of employment and was requested to sign it. This is not the intended purpose or requirement in the legislation. It is for both parties to be clear of the mutual agreement as per the terms and conditions of employment. This became an issue when the Complainant’s hours were reduced and he was unclear regarding his contracted hours of work.

CA-00018984-004: Section 5 (1) of the act states that

"…..whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6 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".

In relation to the Complainant’s claim that he was not notified in writing of a change to his terms of employment, the Adjudicator finds that the complaint is well founded and finds that the Complainant was not notified in writing to a change of his terms of employment.

Decision:

Section 41 of the Workplace Relations Act 2015 and Section 7 of the Terms of Employment Information Act, 1994 of the 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.

CA-00018984-001: Section 3 of the Act requires that an Employer must provide an employee with a written statement of Terms and Conditions of Employment within two months of the commencement of the employment. The Complainant was not provided with this statement. In accordance with Section 41(5) of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment [Information] Act 1994 I declare this complaint is well founded.  I order the Respondent to pay the Complainant €1,600 compensation [which is 4 weeks of the Complainant’s remuneration].

CA-00018984-004: Section 5 of the Act requires that an Employer must notify an Employee of any changes that occur in any of the particulars of the Employee’s terms of employment. This notification must be in writing and must include the nature and date of the change as soon as possible but no later than one month after the changes take effect. The Complainant was not provided with written notification of these changes and so I order the Respondent to pay the Complainant €850 compensation [which is equivalent to 17 hours pay for each of the four weeks of the notice period].

Dated:   April 16th 2019

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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