Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00023793-001

05/12/2018

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

CA-00023793-002

05/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00023793-003

05/12/2018

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

CA-00023793-004

05/12/2018

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

CA-00023793-005

05/12/2018

The Complainant commenced employment with the Respondent on 5th June 2017 as a Chef working 40 hours per week at a wage rate of €10 per hour. The employment ended on 24th August 2018.

This complaint was received by the Workplace Relations Commission on 5th December 2018 and consists of five individual complaints:

1.       CA – 00023793 – 001 – complaint referred under section 7 of the Terms of Employment (Information) Act, 1994.

2.       CA – 00023793 – 002 – complaint referred under section 8 of the Unfair Dismissals Act, 1977.

3.       CA – 00023793 – 003 – complaint referred under section 11 of the Minimum Notice & Terms of Employment Act, 1973.

4.       CA – 00023793 – 004 – complaint referred under section 27 of the Organisation of Working Time Act, 1997.

5.       CA – 00023793 – 005 – complaint referred under section 27 of the Organisation of Working Time Act, 1997.

The Complainant was employed by the Respondent as a chef, his employment commenced on 5th June 2017, he worked 40 hours per week, these hours involved working on most Sundays.

Background.

The Complainant was dismissed on 24th August 2018 (as per Revenue records). The Complainant only became aware of his dismissal on 27th August 2018. The Complainant met with the Respondent on 27th August and was informed at that meeting that he was dismissed.

On 27th August 2018 the Complainant wrote to the Respondent seeking a written reason for his dismissal, a section of this letter reads as follows:

“Dear xxxxx,

I worked for you from April 2017 until you dismissed me today and I am writing to request a written statement of the reasons for my dismissal.

You told me the reason was because your father had an issue with my brother who used to work for him in a different takeaway. This is not a valid reason for terminating my employment. Furthermore, you did not follow any disciplinary procedures before dismissing me” ………

A letter from the Respondent’s solicitor dated 6th September 2018 was received by the Complainant. In this letter there were a number of matters stated on behalf of the Respondent that the Complainant disputes:

Point 1.

Letter reads:

Following complaints from a co-worker, a number of verbal warnings were given to you in relation to inappropriate comments made to a fellow female employee.

Complainant position:

There were no records of any complaints or verbal warnings on the Complainants file (as confirmed via a Data Access request made to the Respondent.

Point 2.

Letter reads:

Our client has a voice recording, which the writer has reviewed wherein you approached your employer following an alleged fall at work and suggested that you would submit a false personal injury claim and split the proceeds with your employer. When our client rejected your offer, you went on to state that you would contribute to any increase in our client’s insurance premium. You persisted with your suggestion of falsifying a personal injury claim and my client repeatedly rejected your suggestion.

Complainant position:

The Complainant did not consent to any voice- recording, regardless of the supposed contents.

Point 3.

Letter reads:

Our client was approached by you in relation to an altercation between our client’s father, and your brother, an employee of our client’s father. Our client did not wish to involve himself in any aspect of this argument and explained as much to you.

Complainant position:

Any “family” dispute should not enter the realms of employment termination. Fair and proper disciplinary procedure should be followed for any dismissal (fair or unfair).

On 25th September 2018 a Data Access request was made to the Respondent’s solicitor. A response was received on 5th October 2018 stating that the only letter on file was the letter of 27th August 2018.

CA – 00023793 – 001 – complaint referred under section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant did not receive a written statement of terms and conditions of employment either before, during or after his employment ceased.

The Complainant is seeking compensation of 4 weeks salary due to the breach of non-provision of terms and conditions of employment.

CA – 00023793 – 002 – complaint referred under section 8 of the Unfair Dismissals Act, 1977.

The Complainant was dismissed on 24th August 2018 as per the records from Revenue. He was not aware of his dismissal until after this date i.e. 27th August 2018.

In relation to accusations of a “complaint” from a member of the public, there are no records of such a complaint nor any records of any verbal warnings or any disciplinary procedures being followed by the Respondent.

In addition there were no documents provided to the Complainant regarding the disciplinary procedure either before or after dismissal, nor a right of appeal. Therefore, our client was unfairly dismissed.

The Complainant has been unemployed since 24th August 2018 and has commenced new employment on 31st January 2019. The Complainant is seeking compensation for loss of earnings for the 23-week period between 24th August 2018 and 31st January 2019.

CA – 00023793 – 003 – complaint referred under section 11 of the Minimum Notice & Terms of Employment Act, 1973.

The Complainant is seeking compensation of 1 weeks’ pay in lieu of notice.

CA – 00023793 – 004 – complaint referred under section 27 of the Organisation of Working Time Act, 1997. Sunday Premium.

The Complainant worked on average, nearly every Sunday and did not receive a contract of employment. It is assumed that no Sunday premium was paid for the duration of his employment.

The Complainant is seeking a Sunday premium for the period employed.

CA – 00023793 – 005 – complaint referred under section 27 of the Organisation of Working Time Act, 1997. Annual Leave.

The Complainant states that he did not receive any holiday entitlement during his period of employment.

The Complainant is seeking compensation of approximately 5 weeks’ pay in lieu of annual leave entitlements due.

Conclusion.

The Complainant was unfairly dismissed, with no disciplinary procedures followed, no right of reply and no right of appeal.

The Complainant was not provided with any terms and conditions of employment, nor any minimum notice on termination of employment.

The Complainant was not paid any Sunday premiums nor was he paid any annual leave due for the duration of his employment.

The Complainant is seeking compensation for breaches of all of the above.

The Respondent did not attend the hearing of these complaints.

Correspondence in relation to the hearing of this complaint was sent to the registered address of the Respondent on 7th March 2019, such correspondence included the date, time and venue for the hearing of the complaint.

From the uncontested evidence adduced at hearing I have reached the following conclusions and find as follows:

CA – 00023793 – 001 – complaint referred under section 7 of the Terms of Employment (Information) Act, 1994.

Section 3 (1) of the above referenced Act reads as follows:

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, that is to say - ………..

Section 7 of the Act states:

7.-(1) An employee may present a complaint to a rights commissioner that his or her employer has contravened section 3, 4, 5 or 6 in relation to him or her and, if he or she does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a recommendation in writing in relation to it and shall communicate the recommendation to the parties.

Section 7 (2) of the same Act states:

7(2) A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:

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

(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977.

I now order the Respondent to pay the Complainant compensation of €1,600 for the breach of this legislation.

CA – 00023793 – 002 – complaint referred under section 8 of the Unfair Dismissals Act, 1977.

When deciding to dismiss an employee, an employer will normally be expected to follow the rules of natural justice. It must observe ‘industrial due process’. Observance of the employer’s disciplinary procedures, if any, will be relevant. Findings of unfair dismissal have been made entirely on the grounds that an employer failed to live up to the rules of natural justice.

In this instant case the Respondent may not have a disciplinary procedure, if this is the case S.I. No 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary) (Declaration) Order, 2000 becomes the default position.

This code of practice contains general guidelines on the application of grievance and disciplinary procedures and the promotion of best practice in giving effect to such procedures. While the Code outlines the principles of fair procedures for employers and employees generally. It is of particular relevance to situations of individual representation.

The essential elements of any procedures for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well defined and that an internal appeal mechanism is available.

In this instant case, from the uncontested evidence adduced at hearing, there were no procedures utilised and the Complainant did not learn of his dismissal until after the event.

I find the complaint to be well found and that the Complainant was unfairly dismissed by the Respondent.

The Complainant commenced other employment on 31st January 2019. There was no evidence produced that would show what efforts were made to mitigate the loss of earnings claimed, I therefore award a loss of earnings for a 10 week period i.e. €4,000.

I now order the Respondent to pay the Complainant the sum of €4,000 as loss of earnings under the Unfair Dismissals Act, 1977.

CA – 00023793 – 003 – complaint referred under section 11 of the Minimum Notice & Terms of Employment Act, 1973.

Under this legislation the Complainant is entitled to notice of one weeks’ pay.

I now order the Respondent to pay the Complainant the sum of one weeks’ pay i.e. €400.

CA – 00023793 – 004 – complaint referred under section 27 of the Organisation of Working Time Act, 1997. Sunday Premium.

Section 27(4) of the Organisation of Working Time Act, 1997 reads as follows:

‘A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates’.

This complaint was received by the Workplace Relations Commission on 5th December 2018, this makes the six month period the period between the 6th June 2018 and 5th December 2018.

The Complainant’s employment ended on 24th August 2018, the period to be looked at is therefore the period between 6th June 2018 and the 24th August 2018, a period containing 11 Sundays. It was claimed at hearing that the Complainant worked, on average, nearly every Sunday.

I am assuming that in the 11 week period the Complainant worked on 8 Sundays, a period of 64 hours on Sundays. In this case I believe a fair Sunday premium to be 20%, I am therefore awarding him 12.8 hours pay for Sunday premium, an amount of €128.

I order the Respondent to pay the Complainant €128 under the Organisation of Working Time Act, 1997.

CA – 00023793 – 005 – complaint referred under section 27 of the Organisation of Working Time Act, 1997. Annual Leave.

It was alleged at hearing that the Complainant received no annual leave during his employment with the Respondent and that any leave taken by the Complainant was unpaid.

Section 27(4) of the Organisation of Working Time Act, 1997 reads as follows:

‘A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates’.

The relevant holiday year commenced on 1st April 2018, the Complainant worked for almost five months during this period. I therefore calculate that he earned 106.66 hours holiday entitlement during this period.

The Complainant earned €1,066.66 in holiday pay during this period and I now order the Respondent to pay him this amount for untaken holiday entitlement.

All payments awarded to the Complainant should be paid within 42 days from the date of this decision.

Decisions as outlined above.

Unfair Dismissal, Minimum Notice, Sunday premium, Annual Leave, Terms of Employment (Information) Act.