Complainant

Respondent

Anonymised Parties

A Hostel Receptionist / Supervisor

A Hostel

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00020567-001

16/07/2018

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

CA-00020567-003

16/07/2018

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

CA-00020567-005

16/07/2018

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

CA-00020567-006

16/07/2018

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

CA-00020567-008

16/07/2018

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

CA-00020567-009

16/07/2018

The respondent is a hostel and language school owned by a Brazilian company and the complainant is a Brazilian national. On April 4th 2015, she commenced employment as a receptionist in their hostel in Dublin city centre. She said that she was promoted to reception supervisor in May 2016, and she went from working 20 hours to 30 hours each week. In August 2017, the complainant said that she was effectively demoted and returned to being a receptionist only.

On April 30th 2018, the complainant said that she was requested to attend a meeting with the hostel manager with no notice of what the meeting was about. She said that her employment was terminated because the manager said that she “was not as engaged as before in the company.” She explained that this was because she was studying full-time.   Following the meeting, she questioned the amount she received as pay in lieu of notice and she received no explanation, just a P45. She said that there were “loads of mistakes” in the payment and that, despite her queries to the HR department, she got no satisfaction.

The complainant complains that her dismissal was unfair, she was given no notice that she was at risk of dismissal and she did not receive the proper amount of pay in lieu of notice. She also complains that she is not sure if she was paid the correct amount for working on public holidays. Finally, she complains that the statement of her terms and conditions of employment was issued in Portuguese only and, that when she was demoted, she did not receive written confirmation of this fact.

The manager who attended the hearing said that the complainant had informed them that she wanted to go to college full-time from September 2017. They supported her decision, helped her with her fees and agreed to reduce her hours, as it was clear that if she was in college from Monday to Friday, she wouldn’t be available to work as many shifts as previously.

In a submission sent to the WRC in advance of the hearing, the respondent said that the complainant was issued with a written warning on January 15th 2018, for making mistakes in a document that she was required to send to head office each week and for her conduct when she was challenged about the mistakes. The submission refers to “many verbal warnings” issued before the written warning, arising from the complainant’s performance.

On April 30th, the manager said that he had a meeting with the complainant and that they had a discussion about availability and that she agreed that she would leave her job in the hostel. He said that he agreed to pay her two weeks’ pay in lieu of notice. He said that they both came to this conclusion because the complainant was not available to work the hours that he needed her to work.

In August 2017, the complainant said that her hours were reduced. It emerged at the hearing that this was because she decided to take up a college course in September. She was expected to work 20 hours each week in the hostel. She said that she knew that the management had decided to change the premises from a hostel to a student residence and that there would be no need for a receptionist.

She claims that her dismissal in April 30th 2018 was unfair because no procedure was followed and she got no notice.

It was apparent at the hearing of this complaint that there was a dispute about whether the complainant was dismissed. It appears that there was some discussion between her and her manager on April 30th 2018, and the end result was that her employment was terminated.   The manager said that she agreed to leave; however, it seems that following a dispute about her final pay, commission payments and notice, she concluded that she had been unfairly dismissed.

Both the complainant and her manager are Brazilian nationals and, because of the language difference between them and me, it was not always possible to understand precisely what transpired at the meeting on April 30th 2018. Based on the evidence, I have concluded that the complainant was dismissed. I also find that her manager did not follow a proper procedure in the lead up to her dismissal and for this reason, it is my view that her dismissal was unfair.

The complainant said that in May 2018, shortly after the termination of her employment, she started working as an interpreter and that she also does some child-minding. She has no guaranteed income but she said she now earns about €250 per week, compared to about €200 per week plus commission when she worked with the respondent.

The complainant was employed by the respondent until April 30th 2018 and she got another job shortly afterwards. I have decided that the respondent is to pay the complainant €1,528, equivalent to approximately eight weeks’ pay, as compensation for her unfair dismissal.

This is a complaint about the non-payment of notice pay. The complainant said that she could not understand what was meant when the payroll department referred to the “value of notice not received” as it is described in an e mail from the respondent’s payroll office.

An e mail submitted at the hearing shows that the complainant was paid €382 in lieu of her entitlement to two weeks’ notice.

I find that the complainant received her entitlement to two weeks’ pay in lieu of notice as shown in an e mail from the payroll office dated May 18th 2018 that was submitted in evidence at the hearing.

I have concluded that the complainant received her entitlement to pay in lieu of notice and her complaint under the Payment of Wages Act 1991 is not upheld.

The complainant said that, before the termination of her employment on April 30th 2018, she hadn’t taken any holidays in 2018. In May 2018, she received confirmation from the payroll office that the final amount paid to her of €2,119.80 included €534.79 in lieu of holidays not taken. At the hearing, she said that she doesn’t know if this is the correct amount that she should have received.

It is the respondent’s case that the complainant was paid for her holidays not taken in 2018.

The documents submitted in evidence shows that she worked for 20 hours each week. As she was dismissed on April 30th 2018, she was therefore employed for 17 weeks in 2018, giving her a total of 340 hours. As holidays for part-time employees are to be calculated on the basis of 8% of hours worked, this means that she was entitled to 27 hours pay for holidays not taken. As her hourly rate was €9.55, I calculate that she was entitled to €259.76 as holiday pay. She received €382. As the payroll department had access to more accurate records than I had at the hearing, it is my view that the amount of €382 is the more than likely the correct amount that was due as payment for holidays not taken.

I have concluded that the complainant received her entitlement to holiday pay and this complaint under the Organisation of Working Time Act 1997 is not upheld.

The complainant said that she worked on public holidays from 6.00am to 2.00pm and she is not sure if she was paid correctly for these days.

The respondent did not provide payslips or any evidence that shows that the complainant was paid in accordance with section 21(1) of the Organisation of Working Time Act in respect of public holiday entitlements.

Section 21(1) of the Organisation of Working Time Act sets out the provisions for the payment of a premium on public holidays:

“Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,  

(b) a paid day off within a month of that day,  

(c) an additional day of annual leave,  

(d) an additional day's pay.”

In accordance with section 41(6) of the Workplace Relations Act, I can consider a complaint about the non-payment of public holiday pay in respect of the public holidays that fell in the six months before the submission of this complaint on July 16th 2018. I can therefore consider a complaint about the non-payment of public holiday pay for St Patrick’s Day 2018, Easter Monday and the first Mondays in May and June 2018. As no evidence was presented that shows that the complainant was paid any additional pay for working on these days, I find that she is entitled to be paid for 28 hours, based on the fact that she worked seven hours each day.

I decide that the respondent is to pay the complainant €270 as her entitlement to additional pay for working on four public holidays in 2018, plus €270 as compensation for non-payment of public holiday pay at the time it was due to be paid.

This is a complaint about the fact that, from the commencement of her employment in April 2017, until December 2017, the complainant’s contract of employment was in her native language of Portuguese. She also said that she was not provided with a copy of her contract.

At the hearing, the manager accepted that contracts were issued to employees by the Brazilian head office in Portuguese. He said that this situation has now been regularised and, since December 2017, contracts are issued to employees in English.

Section 3 of the Terms of Employment (Information) Act provides that, within two months of the commencement of an employee’s employment, they should receive a written statement setting out their terms and conditions of employment.   Generally written up in the form of a contract, these statements are to include the following:

(a) The name of the employer and the employee;

(b) The address of the employer;

(c) The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(d) The job title or the nature of the work that the employee is required to carry out;

(e) The employee’s start date;

(f) If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;

(g) The rate or method of calculation of the employee’s pay and, if the minimum wage applies to the employee, the reference period for the purpose of the calculation of the minimum wage;

(h) The frequency of pay;

(i) Any terms or conditions relating to hours of work (including overtime);

(j) Any 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;

       (ii) pensions and pension schemes;

(l) The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;

(m) Details about breaks and rest periods;

(n) Details of any collective agreement which affects the employee’s terms and conditions of employment.

Section 2 of the Act provides that an employer is not required to issue a statement of terms and conditions where an employee is employed on a contract for less than eight hours each week and / or where they worked for less than four weeks.   These exclusions do not apply to this complainant. As she was not provided with a statement setting out her terms and conditions of employment or a contract containing the information set out above, the respondent has failed to comply with his obligations under Section 3 of the Act.   I find therefore that this complaint is well-founded.

The complainant no longer works for the respondent and it is generally held that, in such circumstances, there is no merit in deciding that a statement of terms and conditions of employment should be issued after the employment has ended. In accordance with Section 7(2)(d) of the Terms of Employment (Information) Act, the maximum that can be awarded in compensation is four weeks’ pay. I have decided that the respondent is to pay to the complainant compensation of €764, equivalent to four weeks’ pay. As this award is compensation for a breach of a statutory entitlement, it is not subject to any deductions.

This is a complaint about the fact that, when she was demoted from reception supervisor, to receptionist, in August 2017, the complainant did not receive written confirmation of this change and no details about the effect of the reduction in hours on her terms and conditions of employment.

The respondent said that he had a discussion with the complainant about her college commitments and the difficulties she had doing as many shifts as she had done previously.   He said that they agreed that she would revert to the role of receptionist and that he thought that she understood and accepted this change. He did not consider confirming the change in writing.

Section 5 of the Terms of Employment (Information) Act 1994 (“the Act”) sets out the obligation on an employer to confirm changes to terms and conditions of employment:

“…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, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.”

Section 3 above sets out the details to be provided in a statement of terms and conditions of employment. Section 4 refers to employment outside the State and section 5 is now irrelevant as it deals with contracts entered into before the enactment of the Act.

It is apparent from the evidence presented at the hearing, that the complainant and her manager discussed the change to her terms and conditions of employment when she changed from being a supervisor to a receptionist. It appears that at the time this change happened, she did not request written confirmation of the change; however, this does not reduce the requirement for the change to be documented.

Based on the evidence, as the complainant did not receive written confirmation of the change in the terms of her employment, her employer was in breach of section 5 of the Terms of Employment (Information) Act.

I have found that the respondent was in breach of section 5 of the Terms of Employment (Information) Act 1994 in respect of the complainant’s entitlement to receive confirmation of her changed terms and conditions of employment in August 2017.   I have decided therefore that the respondent should pay the complainant compensation of €382, equivalent to two weeks’ pay.

CA-00020567-001: €1,528             Reason: Award for unfair dismissal

CA-00020567-006: €270                 Reason: Compensation for non-payment for public holidays

CA-00020567-008: €764                 Reason: Failure to issue a statement of employment

CA-00020567-009: €382                 Reason: Failure to issue a letter confirming a change to terms of employment

Total award:             €2,944

Unfair dismissal, notice, holidays, public holidays, terms and conditions of employment