Complainant

Respondent

Anonymised Parties

Catering Assistant

 Catering Company

Representatives

Joseph B Mannix Mannix & Company

Muireann McEnery IBEC

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-00022701-001

18/10/2018

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

CA-00022701-002

18/10/2018

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

CA-00022701-003

18/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00022701-004

18/10/2018

The Complainant commenced work on 27th October 2009 until this business was transferred to the Respondent in May 2017. She continued working with the Respondent until she submitted her resignation by email dated 1st September 2018 with effect from 24th September 2018. At the time of her resignation she worked on the Respondent’s business.

The reasons given for her resignation were “I am leaving under protest. There are many issues which are forcing me to leave the Respondent’s company of which you are already aware.”

CA-00022701-001

The Complainant states that she did not receive her two weeks paid holiday/annual leave entitlements.

CA-00022701-002

The Complainant states that after the transfer of undertaking the Respondent changed the terms and conditions of her employment without notification or consultation.

CA-00022701-003

The Complainant states that she was discriminated against due to her age with the date of 18 February 2018 specifically mentioned.  Rosters were given which caused significant difficulty to a number of employees including the Complainant.

CA-00022701-004

The Respondent did not adhere to and continue the terms and conditions enjoyed under the previous employer.

The Respondent outlined their defence to the claims as follows:

1.       The Claim under this Act relates to payment in relation to two weeks annual leave that were allegedly not paid.

Whilst preparing for the hearing, the Respondent acknowledged discrepancies have been identified regarding the Claimant’s annual leave, lieu days and bank holiday payments, as follows;

·         Overpayment of 7.8 hours of a lieu day paid in December 2017. A total of €84.84.

·         Underpayment of 2.85 hours for the August 2018 bank holiday. You should have been paid 7.8 hours and you were only paid 4.57 hours. A total of €31.00.

·         Underpayment of 39 hours annual leave for September 2018. A total of €424.32.

Total owed €370.46 which is to be paid on the 22nd March 2019

2.       The Respondent addressed claim 002 and 004 together namely that the Claimant is alleging that after a Transfer of undertaking between the Respondent and the previous employer the Respondent changed her Terms and Conditions without notification or consultation.  The Claimant is alleging that the Respondent did not adhere to the Terms and Conditions she enjoyed under her previous employer pre transfer.

The company noted that from assertions made in various correspondence issued by the Complainant’s representative that this claim is in relation to;

·         Alleged changes in the Complainant’s rostered hours

·         A reduction in staff numbers on the Respondent business making her work more “arduous and difficult”.

·         Assigning the Complainant to duties other than those for which she was engaged,

·         Altering terms in relation to weather policy and grievance disputes.

·         Rostered on a Sunday more frequently than others and this was difficult and harsh for the Complainant.

It is the Respondent’s case that none of the above come within the ambit of what is protected by the Transfer of Undertakings Regulations.  They however noted the following:

1.       Changes in Rostered Hours

The Complainant’s rate of pay and average hours of work did not change, and she suffered no deterioration in her Terms and Conditions as alleged. A breakdown in her average hours in the 12 months before and after the transfer is set out at pages 10 - 12. There was little or no change in her hours and consequently her pay, post transfer and the Respondent denies that there was any breach of the Regulations in this regard.

2.       Reduction in Staff Numbers

The Respondent submits that this is not a change to the Complainant’s Terms and Conditions of Employment within the meaning of Regulation 5 and further submits that actions taken for business reasons some 8 months post transfer cannot reasonably be said to be transfer related. Furthermore, the Respondent is not prohibited from making decisions based on Economic, Technical or Organisational grounds.

The company provided on analysis of the sales and work involved and staff.

There has been no increased demand in the business since and this is still manned as a 2-man operation.

The reduction in the business was therefore based on the revenue generated by this service in comparison to other services run by the Respondent. A decision was made to reduce the service based solely on these figures.

3.       Assigning The Complainant To Duties Other Than Those For Which She Was Engaged

All employees perform other duties depending on the service they are rostered for. This is and was standard practice both before and after the transfer and is reflected in her Statement of Terms and Conditions. Although her job title is stated as Trainer, a trainer is only required to train when a new employee or an existing employee requires training, the last new employee on the roster which started in September 2017, while trainers are identified and receive the rate of pay of a Trainer, they revert back to other duties as part of their day to day role with no economic disadvantage. It should also be noted that her contract states “we should point out that there are times when, due to fluctuations in business, you may be required to assist in other areas and, should this situations arise, we will expect you to be reasonably co-operative and flexible.”  

4.       Altering terms in relation to weather policy and grievance disputes.

The Complainant has not outlined how the terms of the Respondent’s grievance procedures constitutes a deterioration of the Complainant’s terms and conditions of employment nor how they differ from the Transferor. It should also be noted that the Respondent’s Grievance Policy is in line with SI 146 of 2000 and therefore best practice. 

5.       Rostered on a Sunday more frequently than others and this was difficult and harsh for the Complainant.

Out of 45 weeks of rosters, the Complainant was rostered to work 18 Sundays. There were twelve employees in total on the Roster, one was on Maternity leave and all Employees worked between 14 and 21 Sundays during the 45 week period.

In relation to claim 004 the Complainant is alleging that she was discriminated against on the grounds of Age in relation to her conditions of employment, more specifically that rosters were issued which caused significant difficulty to her.

The Complainant’s representative has gone on to state that the complaint is not specifically related to the complainant’s age but that it is included in the absence of any other categorisation.

The Respondent is at a loss to understand the claim and how it can be alleged that the issuing of rosters can in any way be framed as less favourable treatment on the grounds of age and is not in a position to defend same.

The Respondent submits that the claims as outlined by the Complainant do not properly fall within the ambit of what is protected by the regulations. The Claim under the Employment Equality Acts is unclear and also does not appear to properly fall within the ambit of that Legislation.

The Complainant submitted her complaint to the WRC under Section 27 of the Organisation of Working Time Act, 1997, section 77 of the Employment Equality Act 1998, section 7 of the Terms of Employment (Information) Act 1994 and Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No 131 of 2003)

CA-00022701-001

The Respondent acknowledges that an error was made in reference to holidays, lieu days and bank holiday payments totalling €370.46 including reference to detail in this letter in submission.  The Complainant states that there is one extra week pay in holidays due additional to this.  The Respondent only addressed the error in the month before this hearing however the employee left her employment in October 2018.

Section 19 of the Act states;

19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

There were strike payments over two days 7 and 14 November 2017. They are claims outside the six months permitted in the legislation for the claim to be correctly before me. The Company confirmed they will pay the amount of €370.46.  I find this is what is due to her and this needs to be paid immediately.  I confirm she should receive €740 in compensation for the delay and inaccuracy of this payment.

CA-00022701-002

The Complainant alleges that her terms and conditions changed once her employment transferred from her previous employer to this employer.

The Complainant alleges that she was removed from trainer responsibilities and due to the reduction of the number of staff, removal of the weather policy, change in role and duties, no pay for strike days on 7 and 14 November, holiday request changes and change in rosters.

The Complainant received terms and conditions and there was no change to the term and conditions based on my findings nor were there any changes to her terms and conditions. The Respondent fulfilled its obligations under the regulations. The Respondent acted reasonably and in compliance with the regulations at all times.  In conclusion, some practices and policies may have been updated in line with business requirements which are not relevant to this claim therefore this claim fails.

CA-00022701-003

The claim is referencing age and terms and conditions.  The date of 18/2/18 is specifically mentioned.  The Complainant has family and she was asked to do more Sundays than younger employees which presented issues to her.  She was also asked to carry out certain duties and younger employees were not.  She believed a higher standard was expected of her and she was treated less favourable.

I must consider whether the complainant has established a prima facie case pursuant to Section 85 (a) (1) of the Employment Equality Acts 1998 to 2008.

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

No details of comparators have been presented. 

The burden of proof was not discharged under this legislation so the claim fails.

CA-00022701-004

Complaint pursuant to Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) – that the Respondent did not inform employee representatives of certain details of the transfer.

The Complainant alleged that her terms changed and there is an overlap with the issues outlined in their claim under terms and conditions.

The Respondent has demonstrated that they communicated with the Complainant and informed her of the details of the transfer, both by written correspondence. There is a letter in employee’s booklet confirming that the terms and conditions would remain after TUPE.  The Complainant states that her terms changed after the TUPE occurred for example her role and number of staff.

The Respondent has met this obligation under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003).

I find based on the evidence presented that her terms did not change so this claim fails.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00022701-001

This claim succeeds and I find the employee should be paid €370.46 in unpaid wages if not paid since the hearing and she should receive €740 in compensation for breach of the legislation.

CA-00022701-002

I find that this claim is not well-founded and fails.

CA-00022701-003

The claim before me is that the Complainant was discriminated on based on age and I find that it is not well-founded as the employee has not met the prima facia case required in the legislation.

CA-00022701-004

The claim before me is that the Respondent did not ensure that her terms and conditions were transferred from her previous employer. I find that it is not well-founded and therefore this claim fails.