ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Bar Tender | A Public House |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00027335-001 | 27/03/2019 | |
CA-00027335-002 | 27/03/2019 | |
CA-00027335-003 | 27/03/2019 | |
CA-00027335-005 | 27/03/2019 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints/dispute to me by the Director General, I inquired into the complaints/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/dispute.
Summary of Complainant’s Case:
The complainant worked for the respondent from November 27th, 2018 until March 27th 2019 as a part time bar tender. She mainly worked on Friday and Saturday nights and was paid €11 per hour. On February 13th she sustained an injury that resulted in her being off work for two weeks. When she returned her hours were cut and she was working only on Saturday, except for the weekend of the St Patrick’s Day public holiday. Her complaints relate to not being paid a Sunday premium, not getting public holiday entitlements, not getting a statutory statement of her Terms of Employment and that she was unfairly dismissed. She only worked two or three Sundays and worked on December 26th and March 17th. Regarding the complaint of constructive unfair dismissal, the complainant left her job as the hours had been cut without good reason and she ended up working only seven hours per weekend, down from approximately fourteen. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. No explanation was received for the failure to do so. |
Findings and Conclusions:
Turning first to the complaint of constructive unfair dismissal, (which is submitted under the Industrial Relations Act) there was little evidence that the complainant sought to raise and have this matter resolved with her employer. The cut in her hours was, of course significant, but there is a strong obligation on an employee claiming constructive unfair dismissal to exhaust whatever internal arrangements may exist for raising her complaint before resigning. She did not do so, only sending one email (to which admittedly she did not get a reply) and therefore this complaint fails. However, her other complaints succeed. She is entitled to a premium for the Sundays that she worked. She was not given the statement in compliance with the Terms of Employment (Information) Act, 1995 within the required period. Likewise, I find that she was not compensated for the public holidays on which she worked. In the case of the latter, there is a requirement that she have worked forty hours in the previous five weeks leading up to the public holiday. I think it unlikely that she met this requirement in respect of the St Patrick’s Day holiday. For the purposes of my awards below I assess her wages at €11 per hour and her daily shift at seven hours, and her weekly pay on the basis of double that. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints/dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I uphold complaint CA-00027335-001 (Sunday working) and award her €75.00 I uphold complaint CA-00027335-002 (Public Holiday entitlement) and award her €77.00 I uphold complaint CA-00027335-003 (Terms of Employment) and award her €300.00 I do not uphold complaint CA-00027335-005 (constructive dismissal) and it is dismissed. |
Dated: 29/07/2019
Workplace Relations Commission Adjudication Officer:
Key Words:
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