Complainant

Respondent

Anonymised Parties

A Barber

A Barbers

Act

Complaint/Dispute 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-00026308-001

15/02/2019

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

CA-00026308-002

15/02/2019

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

CA-00026308-003

15/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8(1) of the European Communities (Working Conditions of Mobile Workers Engaged in Inter- Operable Cross-Border Services in the Railway Sector) Regulations 2009 - S.I. No. 3

CA-00026308-004

15/02/2019

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

CA-00026308-005

15/02/2019

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

CA-00026308-006

15/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00026308-007

15/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00026308-008

15/02/2019

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

CA-00026308-009

15/02/2019

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

CA-00026308-010

15/02/2019

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

CA-00026308-011

15/02/2019

The complainant was employed as a barber in one of the respondent’s shops in a shopping centre in north Dublin.   Payslips submitted in evidence by the respondent show that she was paid €477.48 for working 40 hours, equivalent to €11.93 per hour. She commenced work on November 1st 2006. The shop was sold as a going concern and a document produced in evidence shows that the sale closed on November 12th 2018.

The complainant said that she discovered that the shop had been sold when she arrived for work on Wednesday, November 7th 2018. She said that she phoned the owner and he came to the shop and told her that the shop was sold and that she would be employed by the new owner.   She submitted a letter in evidence from the respondent dated November 8th advising her of the name of the new owner, the date of the transfer and confirmation that the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“the Transfer Regulations”) applied.  

The complainant worked for the respondent on November 7th and 8th and she said that she was extremely stressed out because she didn’t get any notice that her shop was being sold. She went on holidays for two weeks on November 10th and she said that she had to go to her doctor because she was so anxious. She said she didn’t know if she would still have a job when she returned from holidays. On her return, she called to the shop where she worked and she got the telephone number of the new owner. They arranged to meet and, on December 6th 2018, she returned to her job.

It is evident that, in accordance with the Transfer Regulations, the complainant is now employed by the Transferee and that her service is continuous from November 1st 2006.

The complainant submitted 11 separate complaints about how she was treated by the respondent; however, she has not made a complaint under the Transfer Regulations. The complainant was not legally advised about this matter and English is not her first language. At the hearing, it was apparent that she did not fully understand the technicalities of her case and, in respect of many of these complaints, they are not consistent with the fact that her employment transferred from the respondent to the Transferee as a result of the sale of the business on November 12th 2018.

This is a complaint that, for the 12 years of her employment with the respondent, she was not given compensation for working on Sundays. She said that she worked every second Sunday and that the shop opened from 12.00pm until 6.00pm.

For the respondent, Ms Bannerman said that, in any week that she worked on Sundays, the complainant was paid for working 40 hours that week, whereas she only worked for 38 hours. The respondent’s position is that the additional two hours’ pay is for working on Sunday.

The respondent produced 10 sample payslips for 10 weeks in various months in 2018. These indicate that for five of the 10 weeks, the complainant was paid for 32 hours, for three weeks, she was paid for 40 hours and for the remaining two weeks, she was paid for 24 hours and eight hours respectively. There is no indication on the payslips of the weeks in which the complainant worked on Sundays and the respondent indicated that, for this evidence to be shown, the payslips would have to be matched up to the roster. The sample rosters that were produced in evidence were for 22 months in 2016 and 2017 and they do not match the payslips that were submitted in evidence.

At the hearing, the complainant produced all her payslips for the last 12 years. There is no reference to Sunday working on the payslips, although there is a reference to pay for public holidays. The complainant did not get a contract or a statement of her terms and conditions of employment from the respondent, so she was unaware of any provision for the payment of compensation for working on Sundays.

I find that no evidence has been submitted by the respondent that shows that the complainant was paid for working 40 hours each week, and that on every second week, she worked on a Sunday and therefore worked only 38 hours. It appears that the complainant was paid only for the hours that she worked, irrespective of the days on which she worked. As no evidence was produced by the respondent that demonstrates clearly that the complainant was compensated for working on Sundays, I find that her complaint in this regard is well-founded.

In accordance with section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to consider a complaint under this section if it has been presented to the WRC not later than six months from the date of the contravention, in this case, the non-payment of a Sunday premium. I can therefore only consider a breach of this section of the Organisation of Working Time Act that occurred in the six months before the date that this complaint was submitted to the WRC. As the complaint was submitted on February 15th 2019, I can consider any breach from Sunday, August 19th 2018 up to the date that the complainant transferred from the respondent’s employment on November 12th 2018, a period of 13 Sundays. The complainant was on holidays on Sunday, November 12th and she worked every second Sunday. I am concerned therefore with a claim for a claim for compensation for working on six Sundays.

As I have concluded that this complaint is well founded, in accordance with section 27 of the Organisation of Working Time Act 1997, I decide that the respondent is to pay the complainant compensation of €500.

This is a complaint that the complainant did not receive pay in lieu of notice of the termination of her employment with the respondent when she transferred from the employment of the respondent on November 12th 2018.

The respondent argued that, as the complainant was not dismissed, there was no requirement to issue notice of the termination of her employment.

The relevant law in respect of notice of a transfer of employment is Regulation 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. This provides that a transferor and a transferee shall consult with an employee who is “affected by the transfer,” “not later than 30 days before the transfer is carried out and, in any event, in good time before the transfer is carried out.”  

From the evidence submitted at this hearing, it is apparent that the transferor and the transferee are in breach of this Regulation.

As this complaint has been submitted under the Payment of Wages Act, and not the Transfer Regulations, I cannot make any finding in respect of the failure of the transferor and the transferee in the circumstances that have been outlined to me.   I must therefore conclude that, as the complainant was not dismissed, but that she transferred to the transferee, this complaint about the failure of the respondent to pay her in lieu of notice is not well founded.

I have decided that this complaint is not well-founded.

This is a complaint that the complainant did not always get her breaks when she was employed by the respondent. She said that she was often busy and on her feet all day and that it wasn’t always possible to take a break.

For the respondent, Ms Bannerman submitted that the shop where the complainant worked was quiet for a lot of the time and that two people were generally rostered to work.   In his evidence, the respondent said that there was no difficulty for the complainant and her colleague taking breaks and, even on the occasions that she worked alone, the complainant was permitted to close the shop to take a lunch break.

The Legal Framework

Section 12 of the Organisation of Working Time Act places a statutory obligation on employers to ensure that an employee is given breaks as follows:

(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).

This referral is about an allegation that the complainant did not always get her breaks as provided for in this section of the Organisation of Working Time Act. As with the complaint under CA-00026308-001, I can consider a complaint under this Act in the six months from August 16th 2018 up to the date that the complainant transferred to her new employer on November 12th 2018, a period of almost 13 weeks.

When she worked on Mondays to Saturdays, the complainant generally worked from 9.00am until 6.00pm. She worked from 12.00pm until 6.00pm on Sundays.  

To demonstrate that an employee got her breaks, Section 25(1) of the Act requires employers keep records to show compliance with Section 12 as follows:

An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

In the case under consideration, the respondent is relying on the possibility that the employee arranged her own breaks in consultation with her colleague in the shop. No evidence was submitted of records kept in accordance with section 25(1) of the Act which show that the complainant got her breaks.

For the respondent, Ms Bannerman referred to the High Court case of Stasaitas v Noonan Services Group Ltd [2014] ELR 173as an authority for the proposition that the Act does not require breaks to be specified in all circumstances. However, the Complainant in that case was a security guard in an industry which under the Organisation of Working Time (General Exemptions) Regulations, 1998 is exempt from the requirements of Section 12 of the Act. It is my view that the precedent quoted is not relevant to the instant case.

For the Respondent to demonstrate compliance with Section 12, he is required under Section 25(1) to keep appropriate records. It is well settled that appropriate records under Section 25(1) should show the timing and duration of employees’ breaks.

I have reached the conclusion that the Respondent did not keep appropriate records to show that employees are getting the breaks to which they are entitled under Section 12 of the Act.

I note the finding of the Labour Court in the case of Tribune Printing & Publishing Group v Graphical Print & Media Union (DWT 46/2004). Here, the Court determined that:

“The Company is under a duty to ensure that the employee receives his equivalent rest period and breaks. Merely stating that the employee could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives these breaks, thus protecting his health and safety, does not discharge that duty.”

It is my view that the failure of the respondent to show that the complainant got her breaks leaves open the possibility that she did not always get the breaks to which she was entitled and her complaint in this regard is well-founded.

I have concluded that this complaint is well-founded and I decide therefore that the respondent is to pay the complainant compensation of €500.

At the hearing, the complainant agreed that she had no complaint under these regulations.

The respondent argued that these Regulations have no application to the complainant’s employment with the respondent.

I have concluded that, as the complainant was not employed as a mobile worker in the railway sector, this complaint is misconceived.

I have decided that this complaint is not well-founded as it is misconceived.

This is a complaint about the fact that, for the duration of her employment with the respondent, the complainant did not receive a statement of her terms and conditions of employment.

For the respondent, Ms Bannerman referred to section 3(1) of the Terms of Employment (Information) Act which provides that, within two months of the commencement of an employee’s employment, they should receive a written statement setting out their terms and conditions of employment. As the complainant submitted this complaint 12 years after she commenced working for the respondent, Ms Bannerman argued that her complaint is out of time.

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

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

(b) The address of the employer;

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

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

(e) The date that the employee commences in the job;

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

(g) The rate or method of calculation of the employee’s pay;

(h) The frequency of pay;

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

(j) Any conditions relating to paid leave (other than paid sick leave);

(k) Any terms or conditions relating to –

       (i) Incapacity for work due to sickness or injury and paid sick leave;

      (ii)   pensions and pension schemes;

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

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

The complainant’s evidence is that she did not receive a statement of his terms and conditions of employment.  

I reject the argument that this complaint is out of time, as the failure of the respondent to provide the complainant with a statement of her terms and conditions endured for the entirety of her service with him. The legislation would be futile a time limit existed after which an employee was not entitled to exercise their rights to a written statement. Based on the evidence, the respondent was in breach of section 3(1) of the Terms of Employment (Information) Act, and that this breach was never properly remedied while the complainant was an employee of the respondent. I find that this complaint is well-founded.

As I have concluded that this complaint is well-founded, I decide that the respondent is to pay the complainant compensation of €1,910, equivalent to four weeks’ pay.

The complainant alleged that she was dismissed unfairly when her employment with the respondent ended on November 8th 2018. On December 6th 2018, following holidays and a short period of sick leave, she transferred to the employment of the company that took over the respondent’s business.

The respondent’s case is that, at the end of a period of holidays and sick leave, on December 6th 2018, the complainant transferred to the Transferee, the company that purchased the respondent’s business with effect from November 12th 2018.

It is my view that this complaint is not well-founded because the complainant was not dismissed by the respondent. I find that her employment with the respondent ended when she transferred to the employment of the Transferee.

I have decided that this complaint is not well-founded.

Under this heading, the complainant alleges that she was discriminated against because she is a foreigner. She feels that an Irish employee would not have been treated the way she was treated when her employer sold the shop where she worked. Having worked as a trusted employee for 12 years, she said that she felt “like a piece of old furniture” being passed from one owner to the next.

For the respondent, Ms Bannerman argued that the complainant has not set out how she was discriminated against and she has not provided a statement setting out the basic facts that show that discrimination has occurred.

It was apparent at the hearing that the failure of the respondent to communicate adequately with the complainant caused her a great deal of anxiety. She was employed for 12 years and there was no evidence of any issue related to her performance or conduct. By not communicating with her in good time and in writing before the completion of the sale to the Transferee, the respondent showed her no respect. Disrespect is not the same as discrimination however, and, although the complainant was treated disgracefully, I can find no grounds to conclude that she was treated any less favourably than an employee of a different nationality would have been treated in the same circumstances.

I have decided that this complaint is not well-founded.

The complainant claims that, because of the termination of her employment with the respondent, she is entitled to a redundancy payment.

For the respondent, Ms Bannerman argued that the complainant was not dismissed and that she remains in continuous employment with the company that took over the respondent’s business.

I agree with the position put forward by the respondent and I find that the complainant was not made redundant when she transferred to her new employer.

I have decided that this complaint is not well-founded.

The complainant claims that she did not receive notice of the termination of her employment with the respondent.

The respondent’s case is that the complainant’s employment was not terminated but that she transferred to the company that took over the respondent’s business on November 12th 2018.

I have reached a conclusion with regard to the complainant’s claim that she was entitled to pay in lieu of notice under the heading of complaint number CA-00026308-002 above. As she was not dismissed, she was not entitled to notice and her complaint under the Minimum Notice and Terms of Employment Act is not well-founded.

I have decided that this complaint is not well-founded.

This is a complaint that the complainant did not receive her rights during her notice period.

In line with their response to complaint number CA-00026308-009 above, the respondent’s case is that the complainant’s employment was not terminated but that she transferred to the company that took over the respondent’s business on November 12th 2018. The respondent’s position is that the complainant was not entitled to notice.

I have reached a conclusion with regard to the complainant’s complaint under the Minimum Notice and Terms of Employment Act under the heading of complaint number CA-00026308-001 and CA-00026308-010 above. As the complainant was never on notice of the termination of her employment, I find that she cannot succeed in a claim that she did not receive her rights during any purported period of notice.

I have decided that this complaint is not well-founded.

This is the same complaint as the complaint set out at number CA-00026308-009 above.

The respondent’s position in respect of this complaint is the same as the response that is set out at complaint number CA-00026308-009 above.

My findings in respect of this complaint are the same as the conclusion I have reached under complaint number CA-00026308-009 above.

I have decided that this complaint is not well-founded.

CA-00026308-001: €500.00       Reason: Compensation for failure to pay Sunday pay

CA-00026308-004: €500.00       Reason: Failure to ensure that the complainant got her breaks

CA-00026308-005: €1,910.00     Reason:   Failure to issue a statement of terms of employment

Total award:             €2,910

Transfer of undertakings, notice, breaks, statement of terms and conditions of employment