Complainant

Respondent

Anonymised Parties

A Shop Assistant

A Book Company

Act

Complaint Reference No.

Date of Receipt

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

CA-00012025-001

20/06/2017

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

CA-00012025-002

20/06/2017

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

CA-00012025-003

20/06/2017

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

CA-00012025-004

20/06/2017

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

CA-00012025-005

20/06/2017

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

CA-00012025-006

20/06/2017

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

CA-00012025-007

20/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00012025-008

20/06/2017

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

CA-00012025-009

20/06/2017

The Complainant lodged several claims regarding his 6.5-month employment relationship with a book company. He was represented by a Solicitor. The Respondent Representative came off record on 20 April 2018 and the Respondent was represented by the owners of the book company. Both parties made extensive written and oral submissions and both parties relied on copious email threads of communication pertaining to the period of employment.

The Complainant sustained a self-employment relationship with the Respondent concurrent with and postdating his period of direct employment.

The Complainant worked as a Shop Assistant at the Respondent Book shop for a period of 6.5 months during 2016-2017. He was paid €11 per hour. He has submitted 9 claims of breaches in employment legislation arising from this period. The Complainant has sought compensation for these breaches. The Complainant was dismissed from his employment on and lodged his complaints with the WRC on 20 June 2017.

CA -00012025-001 Section 12 of the Organisation of Working Time Act 1997

The Complainant submitted that he worked 11 am to 6 pm daily without any rest interval. The Complainants Solicitor pointed to S.I 57/1998 where a Shop worker is deemed to be entitled to a one-hour rest interval if the span of duty covers 11.30 am to 2.30 pm which happened in the complainant’s case.

The Complainant submitted a record of a workplan where his agreed hours of 11 am to 6pm were detailed but there was no mention of a rest period. The Complainant was never informed that he could take any rest periods and he did not receive a statement of terms of employment to guide him in this regard. He worked virtually alone.

The Complainants Solicitor contended that as the Employer had failed to notify the complainant of his right to rest intervals, the Employer was in breach of the Act.

CA-00012025-002 Hours of Work

The Complainant outlined that he had worked 20 days in a row from 22 September 2016 finishing on 11 October 2016. The Complainant disputed the Respondent assertion that he had received a 24 hr rest period in every seven days.

CA-00012025-003 Sunday Working

The Complainant outlined that the complainant did not receive any additional pay for Sunday working. The Complainant disputed that a one-euro component of the €11 per hour constituted compensation for Sunday working. The Complainant contended that the Respondent had contravened Section 14 of the Act.

CA-00012025-004 Public Holidays

The Complainant outlined that he worked during two public holidays on 1 August 2016 and 2 January 2017 without a visible proof of payment

CA-00012025-005 Payment in advance of annual leave

The Complainant submitted that he had not been paid in advance of his annual leave in November 2016 and this constituted a breach of Section 20 of the Act. This caused the complainant great distress as he was not paid until he returned from this leave.

CA-00012025-006 Penalisation Organisation of Working Time Act, 1997

The Complainants Solicitor submitted that the complainant was penalised for opposing unlawful acts under the Organisation of Working Time Act, by his dismissal from the employment. The Complainant submitted an email thread Friday 14 October to 21 October 2016 which detailed a record of 20 consecutive working days.

The Complainant submitted that the Complainant was penalised on Saturday 28 of January 2017 following his query as to the amount of work he would be scheduled for in the subsequent weeks. The Complainant was seeking an enhanced three-day week in February 2017. He had received an upsetting email from the Respondent to which he did not respond.

He received a further email dated 28 January timed at 16.25 hrs which set out:

“Due to the several different situations in the past months in which you voiced your discomfort, we have the feeling that we cannot accommodate your needs of a pleasant, secure and regular employment situation that suits your personal needs. We hoped to have created an atmosphere in which winter working hours are kept to a regular minimum that suits you and us. During the quiet months, we initially agreed to an average of 2 to 3 days per week, but we have raised this to an average of 4 days per week after a personal meeting with (complainant and his wife) It was clear to us that the 4 days’ pay per week situation was a concession to your needs and it would have again climbed to an average of 5 sometimes 6 days per week from March onwards. We can feel your insecurity about the employment situation even though there is no need since you have always been paid and the season with plenty more hours is just around the corner and additional work was planned with new personnel to be trained by you in X and Mr A in Cork. Therefore, we feel it better if you seek employment with a company that can give you a better feeling of security and steadiness …….”

The Complainant asked for a reconsideration of this decision but this was denied. The Complainant submitted that a Job Advertisement had been placed for “New Team Members “for the Bookshop locally before this email and concluded that the complainant had been involuntarily terminated from his employment which was designed to punish the complainant for exerting his rights under the Act. He sought the remedy of compensation.

CA-00012025-007 Terms of Employment

The Complainant submitted that he had not received a statement in writing of his terms of employment.

CA-00012025-008 Penalisation under Safety Health and Welfare at Work Act 2005

The Complainant submitted that he had been penalised by his dismissal in contravention of Section 27 of the Act. The Complainant relied on the facts which underpinned CA-00012025-006 on the Organisation of Working Time Act claim as applying in this complaint.

The Complainant relied on his raising his concerns following the 20 consecutive days of work as the matter relating to his safety at work. In addition, he attributed his raised concerns of January 27, 2017 as constituting a detriment from which his dismissal followed. He recounted that he had thought it best not to request working hours during January 2017 as he feared further defensiveness. During January 27, he had merely asked a legitimate question about securing certainty in his working hours. He identified financial loss attributed to his dismissal up to June 1, 2018 date as €18,928.14 and prospective loss as €10,020.78.

CA-00012025-009   Hours of Work

The Complainant submitted that the Respondent had not complied with the Terms of Section 17(3) of the Act on

21 January 2017

13 January 2017

7 January 2017

30 December 2016

4 December 2016

27 November 2016 ,11 September 2016,4 September 2016 and 28 August 2016.

In all instances, the Respondent had not honoured the terms of Section 17(3) on prior notification. 

The Respondent was initially represented legally and a written submission was lodged in response to the claims on July 10, 2017 which was followed by a WRC Mediation process. The Respondent Solicitor came off record on 20 April 2018. The Respondent lodged a secondary submission prior to the hearing date and gave an outline on the background of their business. The Respondent expressed a sense of disappointment in the deterioration of the working relationship with the complainant and dismissed him from their employment, paying two weeks’ pay in lieu of notice on 28 January 2017.

The owners of the business opened a bookshop in June 2016 which they initially managed themselves. The bookshop was part of a larger business with branches around the county operating over the past 8 years. The Respondents knew the complainant as a bookseller and poet and had worked with him when he had his own bookshop. The Respondent was keen to employ the complainant as they were in the process of publishing a magazine and saw the potential for the complainant to contribute to that also on a self-employed basis.

The Complainant left his job as a sales assistant in a book store in the city and he commenced work with the Respondent in July 2016. There had been a delay in the start date to facilitate the complainant in receiving a staff bonus in his employment. The Complainant made requests for annual leave at the commencement of employment which he subsequently chose not to avail of.

The Complainant progressed well and he was asked on a weekly basis to confirm his working days as being suitable. He exercised choice and flexibility over his roster. Shortly in the working relationship, the Complainant was requested to work alone as the Respondent was working on the first issue of the Magazine. The Respondent submitted that this should not have placed an onerous burden on the complainant as the Owner of the Building and his secretary had agreed to place a sign on the door to indicate the shop was closed or that one of them was contactable upstairs.

The Respondent submitted that the complainant exercised his autonomy by choosing to work the number of days he worked. An issue had evolved in November 2016 around the impact of the winter season on the complainant and provision was made to relocate the complainant to the City to maintain working hours. A second desk was installed there and it was hoped that the complainant would acquire the skill of cataloguing.

The Respondent permitted the complainant to close the shop on Christmas Eve to travel to the UK. The Respondent outlined that the working relationship had deteriorated due to the complainants attempts to push out the boundaries on his working schedule. He had sought additional working days thus disregarding what had been agreed in November 2017.

The Respondent confirmed that the complainant received the highest wages of the staff employed and received a full day’s wages for a 1.5 hr meeting and a staff night out. The Respondent denied penalisation and confirmed that the complainants work was published in the Magazine after he left.

The Respondent referred to the complainant’s experience as an employee of other businesses which permitted him a certain awareness and knowledge of his rights.

CA -00012025-001Section 12 of the Organisation of Working Time Act 1997

The Respondent submitted that the complainant received a minimum of 1 hour paid break per day. He was permitted autonomy in taking this break. The Complainant brought a tea kettle to work and solved the Times crossword. He also closed the shop to visit the post office to post books. The Respondent confirmed that when the complainant was paired with the staff in Cork he had addressed both on the importance of taking breaks and covering for each other during this time.

The Complainant had agreed with the Respondent to structure his break time against the tourist flow to the shop.

CA-00012025-002 Hours of Work

The Respondent confirmed the continuous nature of the 20-day working stretch which they stated was attributable to parallel pressures associated with the Magazine. The Respondent submitted that the complainant had consented to the work pattern as a “safety net “for the anticipated winter reduction in hours. The Complainant was described as “the co -architect of the very working hours structure” The Respondent to create a precedent on the claim by seeking that the WRC disallow complaints from workers with a peculiar knowledge of workplace regulations and legislation.

The Respondent submitted that the 20-day continuous work should be viewed as an exemption at a tourist location on consent.

CA-00012025-003 Sunday Working

The Respondent submitted that the complainant was the highest paid worker on the staff. The Respondent had not discussed a higher hourly rate with the complainant. The Respondent submitted the case for an Adjudicator decision.

CA-00012025-004 Public Holidays

The Respondent rejected this claim and detailed the payment history made in the case of 5 public holidays

CA-00012025-005 Payment In advance of annual leave

The Respondent disputed the claim. The Respondent made all necessary payments for the November holiday and the complainant was asked if he needed any special treatment regarding his holidays? The Respondent referred to an email of October 24, 2016 where he stated:

“We can always give you a few more paid days off if you need, you have quite a backlog of hours “

The Complainant did not take up this offer

CA-00012025-006 Penalisation Organisation of Working Time Act, 1997

The Respondent denied the claim. They submitted that he complainant had attended a” friendly meeting” in the company of his wife on 9 November 2016. This meeting was to address working hours and the need for a minimum weekday working for the complainant. They submitted that he was paid a full day’s pay for this 90-minute meeting.

The Complainant had indicated that he was prepared to work 2 to 3 days over the winter months but the Respondent picked up on the complainant’s wife’s desire that he work a four-day week during this time and this was viewed as an optimal arrangement not always possible during the winter months.

The Respondent recalled that the complainant had insisted on a 4-day week during his phone call on January 27, 2017. By this stage the respondent had begun to view the complainant as fickle and he had begun to show contempt for one part of the ownership team.

The Respondent contended that it had been wrongly cast by the Complainant “as the employer from hell” and instead insisted that a friendship had permeated the employment relationship. The Respondent disputed penalisation and instead submitted that they were entitled to dismiss the complainant when he wasn’t working out. They submitted that they had paid an enhanced pay in lieu of notice.

The Complainant had indicated that he liked working at the bookshop which was close to his home. However, the Respondent contended that the working relationship had broken down and had ended in the “fairest way “possible. The Respondent submitted that the complainant was using the WRC as “a tool of revenge” rather than righteousness to vilify a former employer. The Complainant had maintained his self-employed interface with the Respondents post his dismissal.

The Respondent disputed managing the complainant out and detailed that another prospective employee had engaged in the shop during November 2016 only to back out die to academic commitments. It was always the intention of the Respondent to supplement the complainant not to replace him. After the complainant’s dismissal, the respondent regularly employed two workers at the bookshop. This demonstrated that they never intended to leave the complainant as a sole employee and they also sought additional staff for their Cork store.

The Respondent submitted that the complainant had been treated fairly as evidenced in the email threads during his employment and arising from his extensive familiarity with workplaces in the past.

CA-00012025-007 Terms of Employment

The Respondent strenuously denied this claim and referred to previous settlement discussions in the case as being outlandish. The Respondent contended that verbal agreements had been made with the complainant on his terms of employment during the employment and the Respondent should not be unfairly penalised by the complainant’s peculiar knowledge of labour law.

CA-00012025-008 Penalisation under Safety Health and Welfare Act, Act, 2005

The Respondent disputed the claim and denied penalisation and submitted that they had simply applied the form of dismissal counselled on by the “common practice of law in Ireland at the time. “The Complainant did not have 12 months service with the respondent and was awarded 2 weeks spay in lieu of notice, higher than statutory notice to accommodate his search for a new position.

CA-00012025-009 Hours of Work

The Respondent rejected the claim. The Complainant was advised of his starting and finishing times in advance by way of weekly calls, texts or emails. This practice was by agreement and incorporated a flexibility clause where either party was permitted to restructure the roster on agreement. The Respondent disputed that the complainant had raised his unease on prior notification of shift change during his employment. They understood that changes when made were accompanied by the complainant’s consent.

I have considered the complaints outlined and I have reviewed all written submissions. I have also had due regard for the evidence adduced at the hearing. I will address the complaints under the Organisation of Working Time Act before I address the complaint under the Safety Health and Welfare at Work Act.

I had to take time to consider the voluminous written submissions in this case and the varied responses contained in both Respondents submissions.

CA -00012025-001 I have heard both parties on this complaint. It is important that I identify that the correct cognisable period for this claim stands at the 6-month period immediately before the submission of the claim. The claim was submitted to the WRC on 20 June 2017. This allows me to consider the period of work from December 21, 2016 to the date of termination of employment 11 February 2018. I have consulted the work schedule submitted for that period and I have considered section 12 of the Act in that regard.

 Rests and intervals at work.

12

12.— (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).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The Labour Court in Tifco ltd and Smietana DWT 11124 emphasised the duty of employers to have systems in place to ensure that breaks are provided to workers.

I have found that the Respondent did not require the complainant to work without a break in the cognisable period. The Respondent assumed that the complainant was sufficiently autonomous in his role to take the breaks while in the first shop and he was paired with another worker in the second shop, where I accept the Respondent did address the complainant on breaks in January 2017. However, I am not satisfied that the Respondent provided the one-hour break to the complainant during the beginning of the cognoscible period when he worked alone.

The matter of rest breaks was deemed to be a verbal agreement by the Respondent. This has not reflected the spirit of section 12 or Section 25 of the Act on records.

The onus of proof on maintenance of records held in compliance with the provisions of the Act rests with the employer. While the Act requires that these records are maintained and retained over a 3-year period, the respondent did not maintain records in the complainant’s case.

While I appreciate that the Respondent considered a gentleman’s oral agreement to be complaint with the obligations of the Act, I cannot agree with this assertion and I have found that the Respondent contravened section 25(1) of the Act by not maintaining records of breaks. I find the complaint to be well founded.

CA-00012025-002 Hours of Work

I have carefully considered both parties responses to this claim. As stated the cognisable period covering this complaint is the six-month period leading up to the furnishing of this complaint on June 20, 2017. The Complaint is worded in the present tense on 20 June 2016, yet the employment ended in February 2016.

Section 13 outlines a clear direction on rest periods

Weekly rest periods.

13

13.— (1) In this section “daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

( b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

I find that the claim is out of time in accordance with Section 41(6) of the Workplace Relations Act 2015.

CA-00012025-003 Sunday Working

I have considered both parties responses to the complaint. I note the absence of a contract of employment. This is a major omission in this case as it would have provided a much-needed road map on the issue. Section 14(1) of the Act provides that in the absence of a Sunday working pattern being considered in pay determination, an employee is entitled to one or more considerations.

In the instant case, I am satisfied that reference to extra pay for working Sundays was not clearly discernible from a contract of employment or from the circumstances surrounding its conclusion, Viking Security and Thomas Valent DWT 1489 applied. I have established that the complainant worked three Sundays (21 hours) in the cognisable period. I find the claim to be well founded and I determine that Sunday working should have attracted a 35% premium for these days.

CA-00012025-004 Public Holidays

I have considered both parties presentations on this claim and I accept the documentary proof of payment of public holidays. I note that this claim is again hampered by the lack of a contract of employment. I also note that the complainant does not appear to have raised this issue during his employment.

I cannot establish a breach of Section 21 of the Act. I find the complaint to be not well founded.

CA-00012025-005 Payment In advance of Annual leave

I have considered both parties presentations on this complaint. I have considered all documentation submitted inclusive of pay slips and email exchanges. I find that this claim is outside the statutory time limit allowed for this complaint.

I note that the matter appears to have resolved between the parties through email commentary at the time without recourse to the grievance procedure.

I have found the complaint to be not well founded.

CA-00012025-006 Penalisation Organisation of Working Time Act 1997

I have carefully considered both parties claim and responses in this case. I have established that a framework of friendship and mutual respect prefaced this employment relationship which was slightly complicated by the dual employment relationship of direct employee and self-employed practiced by the complainant.

However, the main flaw in the process surrounded both parties differing understanding of just what constituted the working week. The Complainant was initially quite satisfied by the summer high level of activity and commensurate attendance and while I appreciate that he raised the 20-day consecutive working period that traversed the month of October. From November onwards, he was ill prepared for the seasonal variation in hours as this was not delineated in any collective agreement or contract of employment. He requested more hours and in the main these were provided over a two-site basis. It is of note that during the complainants last week of employment, he recorded a 4-day attendance. I have reviewed the email commentary in the run up to the decision taken to dismiss the complainant.

Section 26 of the Act deals with penalisation. It is of note that the Complainant had not accrued service which permitted an exploration of the claim under the Unfair Dismissals Act. The Complainant has contended that he had legally opposed breaches of the Organisation of Working Time Act and that this cost him his position with the Respondent.

From my review I noted that the complainant had sought continuity of work from November 2016. Much of the communication by email was interspersed with references to his parallel self-employment status. At the heart of the communication lay a concern expressed by the complainant that he would struggle with a 2-day allocation and needed 3:4 days for financial reasons. I did not decipher that his concerns formed a direct causal connection with the provisions of the Organisation of Working Time Act. The core issue again revolved around a lack of an agreed written document which set down the number of hours to be worked weekly by the complainant and what provision, if any to be applied to the winter months.

I noted that the complainant was actively engaged in recommending a prospective part time worker to the business in mid-January 2017. I was also struck by his unqualified acceptance of the four-day week offered on 21 January, one week before the date of his dismissal.

I found that the Respondent made an extensive and consistent effort to match the complainant with his requested hours of work. There were no live grievances raised during the employment relationship.

I noted the swiftness of the turnaround of the email communication on Saturday January 28, a day on which the complainant was not rostered to work and could not reasonably be expected to be at his employer’s disposal by email.

I note the reasons given for the dismissal by the Respondent stand at “a better feeling of security and steadiness “The Complainant disagreed and was certain that he had been dismissed due to his opposition to the breaches of the Act.

In Paris Bakery & Pastry Ltd v Mrzljak DWT 68/2014, the Labour Court confirmed that “penalisation” included what is generally referred to as “constructive dismissal”. When an employee, who is rostered to work in excess of the 48 hours prescribed by s.15, requests his or her employer not to exceed that limit and is then compulsorily transferred to a different post with fewer hours but with lower pay, the Court of Justice has ruled that this subjected the employee to a “detriment” since the effect of the transfer deprived of all substance the right to a maximum working week of 48 hours: see Case C-243/09, Fuss v Stadt Halle [2010] E.C.R. 1-9849 and Case C-429/09, Fuss v Stadt Halle (No. 2) [2010] E.C.R. 1-12167. The section also provides against the possibility of double relief.

I have not found that the Respondent penalised the complainant for raising breaches of the Act. I accept that there was a certain Respondent defensiveness surrounding these issues but what followed from the Respondent were genuine efforts to accommodate the complainant as he was clearly viewed as “good for the business “.

I was struck by the very poor process of engagement surrounding the complainant’s dismissal. I was taken aback to hear the Respondent express an unshakeable view that the employer held the unilateral right to terminate an employment at any time and that January 28 was that time I must disagree with this interpretation of Natural Law as all terminations of employment should be exercised through fair procedures and natural justice and during a period where both parties have time allocated to communicate with each other. I have found that the Respondent emails of January 28, 2017 to fall a long way short of best practice but in this claim, I have been asked to establish whether the Complainants actions in opposition of the Act caused him to lose his job.

I have found, on the evidence adduced by the Respondent that the complainant has not established the causal connection necessary to ground the burden of proof in this case. I have not established an indented pattern of opposition to breaches of the Act. I have found the complainant to be not well founded

CA-00012025-007 Statement of Terms of Employment

I have considered both parties submissions on this complaint. Section 3 of the Act places a strict liability on the Employer to comply with the extensive list of statutory terms of employment within a finite 8 weeks of employment. I disagree with the Respondent on their contention that a discretionary verbal agreement should be sufficient to comply with the requirements as stated. The Terms of Employment (Information) Act 1994 is a transposition of EU Directive No 91/533/EEC.

I have identified the need to recommend the parties study the provisions of Section 3 of the Act for illustrative purposes and to consider just how influential this document, had it been in existence would have been in the case. It could have provided certainty in a sea of uncertainty and it could have constituted a formal record of a foundation document of employment. It is the sole responsibility of the Employer to furnish this as a signed copy to the complainant and there are no exceptions to this rule covering the facts of this case.

I have found that an extremely serious breach of Section 3 of the Act occurred on a continuous basis in this case. In Merchants Arch Restaurants Co ltd V Felix Guerrero, the Labour Court found in favour of a complaint arising some two years post commencement of employment.

I have found the complaint to be well founded.

CA-00012025-008Penalisation under the Safety Health and Welfare at Work Act, 2005

I have considered the claim of penalisation as advanced by the complainant and responded to by the Respondent. A claim of penalisation warrants serious consideration.

Section 27(3) of the Act sets out the law in relation to this complaint. To succeed in the complaint, the complainant is expected to demonstrate a causal connection between his dismissal and his engagement in a protected Act as per the legislation.

The Complainant has relied on his raising concerns on the 20-consecutive day working pattern in October 2016. While this is outside the statutory time limit, I found that this matter was resolved between the parties by augmentation of a period of annual leave and followed up at the November meeting. It was not repeated. My attention was then drawn to the email exchange during the case and the complainant’s enquiry on January 27 ,2016 on his future working hours. I was seeking to establish whether the complainant had engaged in a protected act in accordance with the criteria set down in Section 27 (3) of the Act.

Both parties accepted that the complainant was dismissed by email dated January 28, 2017 and while I accept that the complainant sought to reverse the decision. He was unsuccessful. The dismissal constituted a detriment, in my view. Had the complainant attained the service necessary to ground a claim for unfair dismissals I would be looking at the facts through an alternative prism. I must however contain my deliberations to the parameters of Section 27 of the Act on Penalisation.

I have considered the email commentary exchanged during the cognisable period and while I found a growing mutual frustration with the circumstances of the seasonal variation in business, I found that the Respondent was forthright in providing a supplementary hour of work in their Cork Shop. I appreciate that the complainant did not have the benefit of a contract of even a “zero hours” variety. I accept that he requested consistency in his working hours during January 27 and was then not available, due to rest time to engage in the subsequent responses from the Respondent prior to the decision taken to dismiss.

In considering the application of Labour Court determination of Stobart Irl Driver Services Ltd V Scott Hazel in HSD 172, to this case, I was struck by the high threshold of proof required by the Court on causal connection to satisfy the test in penalisation.

In that case the Court upheld a Rights Commissioner rejection of a claim for penalisation because the complainant was not found to have engaged in a protected act in accordance with the Act. The Court was not satisfied that the essential criteria established under the Act had been met in relation to a complaint made by the then complainant.

In the instant case, I have not been able to establish that the complainant had made a complaint regarding his safety, health or welfare at work in the cognisable period of the claim. Yes, he requested additional hours to make a living but he had not activated a grievance or complaint to that primary concern. I find that his concerns regarding certainty in his working hours were properly addressable by contractual means and did not come under the stated criteria in Section 27 of the Act.

I have concluded that I am to follow the Labour Court in Scott Hazel and find that the complainant did not engage in a protected act as per the legislation and has not, in my opinion satisfied the essential criteria to maintain his claim. The Complainant certainly asked a question about his working hours but he did not make a complaint in accordance with the terms of Section 27 of the Act.

I would however add an addendum to this conclusion. The employment relationship was clearly overly casual and peppered with casual social gatherings aimed at resolving difficulties which were clearly “of short term effect “. The core issue between the parties was the absence of a contract of employment and given both parties extensive experience of employment settings, I found it remarkable that this was not provided or challenged throughout the employment. Forthcoming legislation on banded hours contracts may also assist in the future against the perpetuation of this set of facts.

I found that the Respondent deviated from any modicum of best practice by moving to a dismissal by email on January 28, 2017, however, I cannot agree that this constituted penalisation as the Act intended. The claim is not well founded.

CA-00012025-009 Section 17 on Notification

I have considered this claim in line with the cognisable period allowed, i.e. 6 months in advance of the lodgement of the claim. I have also considered the workplan dated August 2016-January 2017 which was undisputed. Section 17 provides that an employee shall be entitled to be notified in advance of the hours in which the employee will be required to work, subject to unforeseen circumstances.

In Lucey Transport Ltd v Serena’s DWT 141/2013, the Labour Court said:

“It is directed as making a sensible distinction between situations in which an employee has a fixed starting and finishing times around which he or she can plan their private or family life and those who cannot do so due to the unpredictability of their work commitments. Where an employee has a contractual entitlement to a fixed starting and finishing time he or she cannot be obliged to start or finish work at any other time as any variation from the contractual hours can only be by agreement. Where, however, an employee's starting and finishing time is determinable solely by the employer the law requires that to maintain some degree of work/life balance reasonable notice of starting and finishing times must be furnished by the employer.”

I have noted that the workplan did not detail the 11-6 pm span of working day during the cognisable period. I found some guidance of hours worked from the pay slips provided. I have been hampered in my decision making by the lack of a clear and distinguishable contract of employment and further by the reliance by the Respondent on their perception of an overarching verbal agreement on working hours. I could not establish the presence of a verbal agreement on when the complainant was required to work as it was underpinned by both parties imposed changes. I have established three breaches of Section 17(3) of the Act within the cognisable period. I have found the claim to be well founded. 

Breaks in Shop work, Weekly rest periods, Compensation for Sunday working, Public Holidays, Payment for annual leave, penalisation, Statement of Terms of Employment, Penalisation, Pre- notification of changes to working hours.

Rest Periods, Terms of Employment, Penalisation