Complainant

Respondent

Anonymised Parties

An Employee

A Fast Food Restaurant

Representatives

Newell, Gillen & Cunningham Solicitors

BDM Boylan Solicitors

Act

Complaint/Dispute Reference Nos.

Date of Receipt

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

CA-00010890-001

19/Apr/2017

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

CA-00010890-002

19/Apr/2017

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

CA-00010890-003

19/Apr/2017

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

CA-00010890-004

19/Apr/2017

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

CA-00010890-005

19/Apr/2017

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

CA-00010890-006

19/Apr/2017

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

CA-00010890-007

19/Apr/2017

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

CA-00010890-008

19/Apr/2017

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

CA-00010890-009

19/Apr/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00010890-010

19/Apr/2017

The complainant claims that she commenced work with the respondent’s Takeaway Restaurant on 1 February 2012 and worked there until her employment ended on 8 March 2017.

She claims that she normally worked 40 hours a week but sometimes, and particularly towards the end of her employment, worked up to 50 hours per week, she said, “when it had to be done, I did it” and she claims that she was paid approx. €1,150 per month.

The complainant said that she worked so hard without the correct support and help and was exhausted. She said she had raised the lack of staff resources with Mr. A, the owner of the business, on numerous occasions but he did nothing about it and she said she “was at her wits end”. She claims that she called a meeting with the managers to discuss this heavy workload and to approach Mr. A in relation to working conditions. She said that Mr. A got very aggressive towards her and used abusive language towards her. She said that she told him she was not going to sit and take his abuse and left the premises. She said that when she arrived into work a few days later, Mr. A produced a document, which he said was her termination notice and asked her to sign it. She said the document purported to suggest that she agreed to the termination of employment, which she did not agree to and therefore did not sign.

The respondent said that the complainant worked with it for a number of years and at first, she was more of a family friend than an employee. She started as a cashier and then progressed to a shift manager. There were no problems at the start, she was reliable and hardworking. The respondent said that the working relationship was very flexible and informal and there were no problems. However, in and around the middle of 2015 things started to change and Mr. A said that her work standards slipped, there were regular arguments, complaints and failure by her to follow instructions and follow company policies. Numerous warnings and “second chances” were given and signed for by the complainant. She would always offer apologies and claim that she would do better but things would only improve for a short while and start to slip again before long.

The respondent said that a meeting was called and at the meeting in front of many witnesses the complainant, completely overstepped the mark, she shouted and screamed insults at Mr. A and his wife, threw her keys on the table and said she was leaving. The respondent said that in an attempt “to put everything right” he drafted up a letter of termination of employment and asked her to sign it a few days later. He said that she said that she would not sign the letter and was going to sue him.

The complainant has also raised a number of other alleged breaches of various pieces of legislation which are dealt with in order below.

CA-00010890-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The complainant said that in the week prior to the termination of her employment she was rostered to work from 2pm until close on the Wednesday, Thursday and Friday. She said that one of the other managers, Mr. B, had called in sick, and Mr. A asked her to work both the Saturday and Sunday again from 2pm until close. She claims that when she said that she could not work on the Sunday she was told by Mr. A, she should “make it her business to get someone to work the Sunday shift or be available to work it” herself. The complainant said that she started work at 6pm on that Sunday evening, having worked 5 days in a row, long hours and was exhausted.

On Sunday evening she said that she was speaking with another one of the managers about the working conditions as both were at their wits end. She said that they had been asking for more staff to be hired as the current levels were unsustainable, and that staff were exhausted from work overload. She said that they decided to organise a managers’ meeting for the next day, Monday 6 March 2017. She claims that she sent a text to Mr. A asking if they could all meet up at the shop to discuss some matters but did not get a reply. She said that when she arrived at the shop Mr. A and his wife were there along with Mr. B. She claims that Mr. A was “very loud, threating and abusive” towards her and kept asking her why did she call the meeting, and that it was not her place to call a meeting. She claims that she tried to explain that the working conditions were too hard and that the business needed more staff. She said that an argument ensued about the reason staff were leaving his business and she said she told him it was because of the way he treats his staff. She said that he continued to be abusive to her, so she told him she was not going to be spoken to like that, she had to leave, and gave back the keys and then “asked if she was being sacked”. She said that he said no and she left.

The complainant said that she was off the following day and due back in to work on Wednesday. She said that on that morning she got a text message from Mr. A to say that she was not to come into work. Later that evening she said that she got another message saying that she was to attend a meeting on Thursday morning 8 March 2017. She said that she sent a text back asking if she should come in wearing her uniform but she got no reply. She said she arrived for the meeting wearing her uniform ready for work and was met by Mr. A and his wife. She said that she was presented with a letter on headed paper and told it was her termination notice. The complainant said that she tried to explain again why she had to call the meeting but he did not let her finish. He told her to sign the letter, and she refused. She said she asked him why was he sacking her and was told he did not want her working in the shop any more. She said that Mr. A said “the wayI spoke to you on Monday and the way you spoke to me, I cannot work with you.” The complainant said that she refused to sign the document and when she was leaving Mr. A threatened her by saying “don’t think about going to anyone about this, remember I pay you cash in hand”.

The complainant said that there was no investigation or disciplinary hearing, there was no right to be heard and no appeals process. She said that she was unsure if written grievance procedures were in place at the time, she was told to sign a document at the commencement of her employment but was not given an opportunity to review it or given a copy. She said that when she was made manager she was never given a manager’s contract despite several requests, she said she was told all the contracts were the same. She said she was never given a copy of her original contract either.

CA-00010890-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The complainant claims that she was not given any compensation for working on Sundays. She said that she was never paid a Sunday Premium, nor did she receive any extra holiday pay or annual leave or any other type of benefit for working on a Sunday.

CA-00010890-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The complainant claims that she was not notified in writing of a change to her terms and conditions of employment. She said that on 3 February 2017, she had booked the weekend off weeks in advance for her daughter’s birthday. A member of staff rang her looking for Mr. A’s telephone number, as she was sick and needed to let him know she would not be able to work. Later that day she got a text message from Mr. A stating that as she had told that member of staff that she did not have to go in to work, the complainant was requested to be in the shop at 5:30pm to cover the sick staff member’s duty.

Also, she claims that she was told that as she had passed on Mr. A’s number to a 3rd party, there would be consequences to follow. She claims that the following week she came into work on the following Tuesday and was told to go home that her shift was covered and to think about what she had done. She said, when the roster came out on the following Thursday she only had one shift instead of her usual four. She said that she only had two shifts on the following week. The following week she said that she only had three shifts and Mr A told her not to depend on getting three shifts from that day onwards.

CA-00010890-004 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The complainant claims that she was told she had to sign a document toward the beginning of her employment with the respondent. She said that she was not given an opportunity to review it and she was never given a copy to keep. She said that when she was made manager, she had asked on several occasions for a managers’ contract outlining her new role and responsibilities but she was never given one, she was told all the contracts were the same.

She said that the respondent changed its legal name or legal entity during the course of her employment there. However, she was not informed of the change, no one consulted with her and informed her of the implications nor did she receive a new contract of employment thereafter.

CA-00010890-005 - Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The complainant said that she did not receive an opportunity to finish out her statutory notice period prior to the termination of her employment on 8 March 2017. She said that she was not offered a payment in lieu of the notice period.

CA-00010890-006 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The complainant said that the only compensation she ever received in respect of public holidays was time and a third. She said that she never received a paid day off or additional annual leave for any public holidays worked.

CA-00010890-007 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The complainant said that she was paid less holiday pay than she was entitled to. She said she should be entitled to 8% of the total hours worked up to 4 weeks wages, however she only received €600 in holiday pay for 2016.

She said that she believes that the wage slips received do not correspond with the tax documentation she has in her possession. She said that from the wage slips she believes that she was paid well in excess of the amount contained in her P60 for 2016. She said that her average wage on her pay slips is approximately €860 per month, which is equivalent to €10,300 for the year, whereas her P60 stated that she was only paid €7,682. She said that she worked full time for the year and as such her taxable income should have been much more than what is stated on her P60.

CA-00010890-008 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The complainant said that any cash register shortages were deducted unilaterally from her wages without notice. She said that she would not be aware of a deduction until she saw her wage slips and would not get a chance to raise this with Mr. A or to see any evidence of the shortage. She also said that all food waste over 5 pieces had to be paid for at full price. She claims that any waste had to be put in a bag and she had to write her name on it and put it in the waste bin. Even though she was forced to pay full price for excess food she was not allowed to eat it or take it home.

CA-00010890-009 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The complainant said that on her final pay slip there was a deduction of €30 from her wages for phone calls made on the shop phone. She said that she always had her mobile with her at work at all times and only ever used the shop phone in a case of an emergency and the bill could in no way have been close to €30. She claims that this is an unlawful deduction from her wages.

CA-00010890-010 - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

The complainant said that when there was an issue or a dispute in the shop, the staff were made to sign a document in relation to same. Often, they would have been in respect of issues which she had nothing to do with but she would still be forced to sign the document.

The complainant said that the staff were not given an opportunity to be heard on any issues and if she had refused to sign Mr A would become threatening and abusive toward her forcing her to sign or told there would be consequences.

CA-00010890-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The respondent said that the complainant had worked as a manager in its Takeaway Restaurant. She was given numerous oral and written warnings over an extensive period of time concerning her performance and her misconduct. Many of the warnings related to performance issues but the majority of warnings related to gross misconduct such as would have justified summary dismissal on many occasions, however due to the personal relationship that existed she was continually given ‘another chance’.

The respondent said that each warning was clear, it was signed by her, the employer and by a witness. She was never forced to sign any document and from time to time refused to sign any documents if she did not accept blame or challenged the case against her. On each occasion she was given every opportunity and assistance to improve her performance and to address her misconduct issues. The respondent said that its normal disciplinary procedure is to dismiss an employee after three warnings. However, it indulged the complainant to the extent of allowing her to continue on numerous occasions, giving her further opportunities. It said that the warnings concerning performance and misconduct included (but are not limited to) the following matters: -

·         the closing down of the kitchen and not selling any freshly cooked food after 8.00pm / 9.00pm, the written warning was signed.

·         the food prepared by the complainant for sale and consumption by the public was contrary to the rules, recipes and procedures, FSAI regulations and HACCP standards. Again, the written warnings were signed.

·         the complainant had continuous, unexcused absences from her workstation for the purpose of personal phone calls and unauthorised smoking breaks, leaving the restaurant not properly attended too, thus causing loss of sales.

·         the complainant was, without authority, handing out free food and stock at her discretion to customers.

·         the complainant used indecent, abusive and aggressive behaviour and language towards management and other staff team members on numerous occasions.

The respondent said that the complainant organised a meeting on 6 March 2017 in relation to a rostering issue. This meeting was in the presence of a witness and recorded on CCTV. At this meeting she became very aggressive and abusive. She was shouting and grossly insubordinate to the owners. She called people names and insulted the owners. She made it clear that she would not take instruction from her employers and her behaviour was such that it would have justified summary dismissal for gross misconduct there and then. Notwithstanding it was the complainant that said that she had enough and left. The respondent said it was her that terminated her employment.

A letter of dismissal was prepared following this meeting on the 6 March, “to put things in order” and she was invited in and presented with it on 9 March 2017. She read the letter and was aware of it but refused to sign it. She left the premises on 9 March 2017 and stated that she would not be coming back and was going to sue the owners.

CA-00010890-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The respondent said that the complainant was paid a higher wage per hour to incorporate a Sunday premium rate. He said that he was inspected by an Inspector from the Workplace Relations Commission and that he had passed inspection without problem.

CA-00010890-003/ 004 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The respondent said that the complainant was given her terms and conditions of employment in writing and a contract of employment when she joined the workforce. It claims that on the changes to the respondent, a copy of the statement of terms of employment was also presented to her and she signed for this document. There were no changes to the terms and conditions of her employment.

The respondent said that in addition, the complainant was given a Handbook with the Grievance and Disciplinary Procedures set out within. She was also notified on her payslips when the business changed its name and of her rates of pay.

All her entitlements under Section 7 of the Terms of Employment Information Act 1994 are met. The respondent said that she was not forced to sign any document and she was given every opportunity to consider all the documents furnished to her during her employment.

CA-00010890-005 - Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The respondent said that the complainant was given notice of dismissal. She left the premises peremptorily and refused to work out this notice. She said she was not coming back and was going to sue the respondent.

Alternatively, the respondent also said that the complainant 's gross misconduct was such as would justify summary dismissal so that all relief claimed under the Minimum Notice and Terms of Employment Act 1973 is denied.

CA-00010890-006 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The respondent said that the complainant’s claim under Section 27 of the Organisation of Working Time Act 1997 public holiday entitlements is denied. The complainant was paid her public holiday entitlements and/or given extra holidays in lieu.

CA-00010890-007 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The respondent said that the complainant’s claim under Section 27 of the Organisation of Working Time Act 1997 holiday entitlements is denied. She received her full entitlement for the period under review.

CA-00010890-008 & 009 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The respondent said that the complainant consented, on specific occasions to deductions of till shortages and telephone bills and this is outlined in her Contract of Employment. Accordingly, it claims that no claim lies under Section 6 of the Payment of Wages Act 1991.

The respondent said that it wanted it made clear that these deductions were only made on rare occasions after many repeated warnings as a means of last resort.

The respondent said that the complainant failed to follow the set food handling protocols on many occasions in spite of numerous warnings both written and oral. The respondent said that deductions were made from the complainant’s wages for phone calls she made and for hours not worked by the complainant.

CA-00010890-010 - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

The respondent said that the constructive dismissal Industrial Relations issues claims are denied. The respondent said that it is a small firm with seven employees including the owner, Mr. A and his wife, who work side by side with all of their staff. The respondent said that the complainant was well able to speak for herself and she was always listened to. The workplace was very flexible, she was allowed to change work shifts on many occasions without difficulties. Problems were dealt with in an orderly fashion as they arose. The respondent said that it could not force her to sign any documents and from time to time when she disputed a charge and would decline including her final resignation note, she was not forced. The respondent said it was always her decision.

The respondent said that the complainant has never complained in relation to issues now raised under cover of this complaint, it said on the contrary she admitted her responsibility for many issues concerning food safety matters because of her position as a manager. The complainant was always treated with respect at all times, they had a friendship and were really close until she started to show disrespect. The respondent said that the staff and management were never threatening or abusive towards her, unfortunately it was quite the opposite, she was often threatening and abusive to Mr. A and to other staff members.

CA-00010890-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Relevant Law

Section 1 of the Unfair Dismissals Act 1977 provides that:  

"dismissal", in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(1)   Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

…

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind   which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

…..

(6)  In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

Conclusions

It appears to me there are a number of aspects that I must consider in coming to a decision on this case. Firstly, I must determine whether there was a dismissal or not, and should I find that there was a dismissal, was this unfair in the context of Section 6 the Unfair Dismissals Act 1977.

The fact of the dismissal was very much in dispute between the parties in the present case. It is very clear that a meeting was called, and the complainant and the owners of the restaurant were present. What followed is critical in the case. The complainant claims that she was verbally abused and said she was not taking that abuse and left. The respondent said that it was the complainant that lost control and abused everyone in the room. She was told that the owners were not going to put up with this behaviour anymore and she left.

The complainant claims that in that meeting she asked if she was being dismissed and told she was not, she said she returned to work two days later and was presented with a termination of employment letter and asked to sign, she refused and realised she was being dismissed. The respondent said that it prepared a letter to complete the termination process and invited her in to sign this to tie up the loose ends. The respondent had witnesses to substantiate its version of events and it produced CCTV evidence which it claims identifies that it is the complainant who is the instigator of the events that lead to the outburst on 6 March 2017.

I have carefully examined all the evidence submitted to me in this case and due to the polar position and inconsistencies of both parties have to try and ascertain what really did happen and on the balance of probabilities make a reasonable finding.

The complainant was an employee with the respondent for a number of years. I have heard how the relationship between them all has soured significantly. I have seen the multiple signed warnings in relation to the complainant’s behaviour and performance. I have to question the respondent’s judgement on how these matters were ever managed. There appears to be a cycle of perceived poor performance/attitude which is documented and signed for by the complainant. Then it appears that all is forgotten, and the complainant is accepted back to work after an apology and a promise to improve. It would appear that has become the custom and expectation in this work relationship.

The complainant has made it very clear that she was working extraordinary long hours, much more than she was contracted for or that was disclosed officially, and she was exhausted. A meeting was called to address matters. This meeting was set with the backdrop of a strained relationship. It would appear from the outside that an altercation was inevitable. The altercation is not disputed but the parties’ perspective differs significantly.

From past experiences I would have thought that the complainant would have expected that she would have been served with a warning for her part in this altercation and would have resumed her employment within a few days as was the custom with dealing with problems heretofore. That appears to be her evidence, that she texted the respondent and asked about her next day of work and would she come in for the second meeting “in her uniform”. Looking at that sequence of events, I am reminded that she had multiple warnings and admitted her part in the confrontation with the owners and left the meeting in a rage. However, she expected to return into work to take up duties as normal. As this point I also need to balance some of the complainant’s evidence in relation to her work. She has said that she was overworked for a significant amount of time and had been raising this grievance with her employers for some time. I note she said in her complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act that her shifts and hours were reduced, and she was told that she should not expect the hours she was working before. These facts appear at odds with one another.

I note the respondent’s corroborated evidence for that meeting on 6 March 2017, specifically that the complainant became unruly and abusive to all present. The co-owners said that they were not having her speak to them that way and she said that she had enough of this, she threw the keys on the table and left. They took that as her leaving. Notwithstanding they determine her behaviour as gross misconduct and could have perused that route should she not have left by her own choice. I am satisfied that this time the respondent had enough of her alleged behaviour was not taking her back. There would be no more chances.

I have heard the list of insults that were allegedly said and have viewed the CCTV footage. The body language of all concerned paints a picture of an extremely explosive and fraught meeting. I note the respondent attempted to put a conclusion of sorts to end of their work relationship with the complainant in writing and bring it to a formal end by drafting a termination letter.

The complainant claims that before she left the meeting on the 6 March 2017 she asked was she being dismissed, and she was told she was not. I find that difficult to reconcile the evidence presented and on the balance of probabilities I am satisfied that she therefore left on her own devices and very much left the impression with the respondent that she was not coming back.

The complainant claims that she wished to return to work some days later but was told not to come in via text. The respondent’s evidence is that she was invited in to sign the letter formally ending her work relationship. The complainant claims that she asked, by text, if she should come in in her uniform. I note that all the other many text messages referred to in evidence in this case were made available to me, but this vital text was not.

Finally, I see that she was invited back into work and presented with a termination letter for signature. This has also been captured on the CCTV presented in evidence. It seems a very short abrupt meeting and did not leave the impression that she was ready to return to work but rather the animosity between the parties was still very real and she soon left.

I am satisfied, having heard all of the evidence, that the complainant resigned her position on the 6 March 2017, however irregularly conveyed and the respondent could reasonably interpret it as such. I am satisfied that the second meeting on the 8 March 2017 was instigated by the respondent in an effort to try to bring closure to the matter.

On the balance of probabilities, I prefer the evidence of the respondent on how event unfolded on the day in question. Accordingly, since there was no dismissal, the claims under the Unfair Dismissals Acts, 1977 to 2007, fail.

CA-00010890-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

All the evidence was contested by the parties and therefore I have to determine this matter on the balance of probability and credibility of the witnesses and their evidence.

This complaint is in relation to a contravention of Section 14 of the Organisation of Working Time Act 1997, which relates to compensation for working on a Sunday and provides for a number of ways in which the compensation can be calculated, including the payment of an allowance, an increased rate of pay or paid time in lieu.

The complainant claims that she worked some Sundays and did not get a premium rate for that work. The respondent said that the complainant was paid a higher rate to incorporate a Sunday premium. The respondent admitted that he did not have a specific Sunday rate, he said that the complainant knew that and she was paid at a higher rate. The complainant disagrees with this claim.

I am satisfied that the onus of proof lies on the employer to demonstrate compliance with Section 14 of the Act. The complainant was employed on an hourly rate of €10.25 per hour. The records provided do not specify the breakdown of the rate for Sunday. The complainant says this hourly rate did not provide compensation for Sunday work. The respondent said that the hourly rate did incorporate a Sunday premium. Having regard to the wording of Section 14, I am mindful that the employee “shall be compensated” for Sunday work by “such an amount as is reasonable having regard to all the circumstances”. In order to demonstrate compliance with Section 14 of the Act, it is for the respondent to show that the hourly rate contains an element intended to compensate the complainant for the requirement to work on Sunday. This must be clearly discernible from the contract of employment or the circumstances surrounding the conclusion of the contract of employment as stated by the Labour Court Viking Security Ltd v Valent, DWT1489. The respondent has not demonstrated compliance with Section 14 of the Act and I find the complaint is well founded.

I note that stated in the contract of employment there is a reference to the National Minimum Wage Act, “Your rate of pay will be individually decided in accordance to National Minimum Wage Act” but it makes no reference to the rate of pay beyond that. I do not accept that this is sufficient to infer that the Sunday premium has been provided.

CA-00010890-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

This is a complaint made pursuant to the Terms of Employment (Information) Act. The parties gave conflicting evidence as to whether the respondent provided the complainant with a statement of the terms of his employment.

I note that the complainant was given documents to sign but did not know what they were. The respondent is clear that she was given time to consider and sign. I am satisfied that the contracts set out the terms and conditions in an orderly fashion and comply with the requirements set out under Section 3 of the Act. I note both were signed by the complainant on 17 September 2012 and on 5 May 2016 respectively. The respondent said there was no change to her terms and conditions.

The issue in relation to the reduction to hours appears not to tally with her contract of employment which states her hours as variable and also appear to conflict with her own evidence where she seems to suggest she was over burdened with work.

I prefer the evidence of the respondent in this instance and therefore I declare that the complaint is not well founded.

CA-00010890-004 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The complainant said that there was a change to the respondent’s business and the complainant was not informed nor provided with the new terms and conditions of employment. She also claims that she asked for a manager’s contract when she was made manager.

The respondent said there was no change to the terms and conditions of employment at any time.

The Terms of Employment (Information) Act requires that employees be given certain information and be notified in writing of changes to the terms. The complainant referred to her change of role and the change to the respondent during the course of her employment.

I accept the complainant’s evidence that her role changed but likewise I accept the respondent’s evidence that her terms and conditions did not change. I am satisfied that the contracts set out the terms and conditions in an orderly fashion and I note both were signed by the complainant on 17 September 2012 and on 5 May 2016 respectively. It follows that that complaint is not well founded.

CA-00010890-005 - Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The complainant claims that she was dismissed and not given or allowed to work out her notice as per the Act. The respondent said that the complainant left and was not let go. Although it did prepare a letter of termination after the fact to tie up loose ends.

I note the letter of termination presented by the respondent was prepared based on the meeting on 6 March 2017 and the complainant would not sign it. On the balance of probabilities and as I have already found above I prefer the evidence of the respondent on how events unfolded on the day in question.

Accordingly, I am satisfied that the complainant’s case is not well founded.

CA-00010890-006 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

Entitlement in respect of public holidays – Section 21 States “(1) 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:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.”

The complainant states that she was not paid for Public Holidays in the six-month period immediately preceding the issuing of the Complaint Form herein.

The Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 requires all employers to keep detailed records of start and finishing times, hours worked each day and each week and leave granted to employees. This Regulation is made pursuant to the Organisation of Working Time Act 1997. The employer must keep these records for 3 years.

The respondent has failed to provide such records, and in accordance with Section 25 of the Organisation of Working Time Act, and the 2001 Regulations, the respondent is obliged to maintain such records for a period of three years. Furthermore Section 25 (4) of the Act states the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer. Based on the evidence provided, I am satisfied that on the absence of evidence in the contrary, the complainant is entitled to an additional day’s pay for the bank holidays under section 27 of the Organisation of Working Time Act, 1997.

The cognisable period for the purpose of the alleged contraventions of the Act is the six-month period prior to the referral of the complaint to the Workplace Relations Commission. I note that four public holidays fall within this period. I am satisfied that the complainant was not paid for the four Public Holidays and I award €51.25 (5-hour shift @ €10.25 per hour) in respect of each day totalling €205.00. I also award an additional €200 in compensation for the said breach.

Accordingly, I am satisfied that the complainant’s case is well founded.

CA-00010890-007 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The complainant said that she was paid less holiday pay than she was entitled to. She said she should be entitled to 8% of the total hours worked up to 4 weeks wages, however she only received €600 in holiday pay for 2016. The respondent claims that she was paid what her entitlements were and there is nothing owing.

I note the difference of opinion on the P60 documents presented in evidence. I am satisfied that this is the only document presented in evidence that I can determine the official payments made for year. On that basis I determine that she was paid €7,682, eight percentage of hours worked but not more than four weeks holidays amounts to close to approximately €590. I am therefore satisfied that there is no breach under this section of the Act.

I am satisfied that the complainant’s case is not well founded.

CA-00010890-008 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The complainant said that any cash register shortages were deducted unilaterally from her wages without notice. She said that she would not be aware of a deduction until she saw her wage slips and would not get a chance to raise this with Mr. A or to see any evidence of the shortage. She also said that she was forced to pay full price for excess food and all food waste. The complainant did not give specific details and dates of these deductions.

The respondent said that the complainant consented, on specific occasions to deductions of till shortages and this is outlined in her contract of employment. I was presented with till receipts signed by the complainant supporting that she was informed of the deductions.

The respondent said that these deductions were only made on rare occasions after many repeated warnings as a means of last resort. She was given notice. The primary issue for me in this case is whether the complainant suffered a deduction from her wages which was unlawful having regard to the Act at Section 5(1). The Act at section 5(1) provides as follows;

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

There is no dispute that the deduction was made. The complainant’s contract of employment does authorise the making of such deductions however, it would appear that the deduction was made from the wages on her leaving the employment and no pre-notice was given of this deduction. On the balance of probability, I determined that the respondent made a deduction of €30 from the pay of the complainant which was in breach of the Act at Section 5(1). Accordingly, it follows that that complaint is well founded.

CA-00010890-009 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The complainant said that on her final pay slip there was a deduction of €30 from her wages for phone calls made on the shop phone and this was an unlawful deduction from her wages. The respondent said that the deductions were made from the complainant’s wages for phone calls she made. This bill has been itemised. The respondent said that the complainant consented, on specific occasions to deductions for telephone bills and this is outlined in her contract of employment.

I have noted the Contract of Employment and the specific addendum in relation to a signed authorisation by the complainant for wage deductions of this nature. Accordingly, it follows that that complaint is not well founded.

CA-00010890-010 - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

I am satisfied that after an initial friendship there has been a troubled working relationship between the complainant and the respondent. Both parties point the finger of blame at each other as to the reason for that break down. This has been heightened by a possible erosion of the necessary professionalism and the adoption of a lassie affaire attitude in dealing with real matters as they arose in the workplace.

I note that their relationship is broken beyond repair and therefore, I recommend that in an effort to resolve this dispute, the respondent pay the complainant the compensation owed as outlined in this decision, and the parties move on and learn their respective lessons for the future.

In accordance with provisions of Section 8(10)(a) of the Unfair Dismissal Act a person is precluded from seeking redress in relation to dismissal under both the Unfair Dismissal Act and Industrial Relations Acts. Therefore, I should note that my findings and recommendation under the Industrial Relations Act does not relate to dismissal but rather to the other outstanding Industrial Relations matters raised by the complainant.

CA-00010890-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

I declare that the complaint is not well founded.

CA-00010890-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The complaint in relation to a breach of Section 14 of the Organisation of Working Time Act 1997 is well founded and I order the respondent to pay the complainant €400 [four hundred euro] as compensation for the breach.

CA-00010890-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

I declare that the complaint is not well founded.

CA-00010890-004 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

I declare that the complaint is not well founded.

CA-00010890-005 - Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

I declare that the complaint is not well founded.

CA-00010890-006 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The complaint in relation to a breach of section 27 of the Organisation of Working Time Act 1997 is well founded and I order the respondent to pay the complainant €51.25 in respect of each day totalling €205.00 plus another €200 as compensation for the breach. €405 [four hundred and five euro] in total.

CA-00010890-007 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The complaint in relation to a breach of section 27 of the Organisation of Working Time Act 1997 is not well founded.

CA-00010890-008 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

I find that the complaint made pursuant to the Payment of Wages Act is well founded and the respondent shall pay redress to the complainant of €150 [one hundred and fifty euro] in compensation for a breach of section 6 of the Act.

CA-00010890-009 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

I find that the complaint made pursuant to the Payment of Wages Act is not well founded.

CA-00010890-010 - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

I recommend that in an effort to resolve this dispute, the respondent pay the complainant the compensation owed as outlined above, and the parties learn their respective lessons for their future careers and business.

Obiter dictum

I have received clear oral evidence from the complainant on a number of times during the course of the hearing that she was paid cash in hand from the respondent for additional hours worked, she claims that this was done on a regular if not systematic basis.

I note section 8(12) of the Unfair Dismissals Act 1997 where is states, “where, in proceedings under this Act, it is shown that a term or condition of a contract of employment contravened any such provision as aforesaid, the adjudication officer or the Labour Court, as may be appropriate, shall notify the Revenue Commissioners or for the Department of Social Protection, as may be appropriate, of the matter.” Accordingly, I will now write to both the Revenue Commissioners and the Department of Social Protection and present them with a copy of my decision.

Unfair Dismissals Act, 1977 - Organisation of Working Time Act - Terms of Employment (Information) Act - Minimum Notice & Terms of Employment Act - Organisation of Working Time Act - Payment of Wages Act - Industrial Relations Act.