Complainant

Respondent

Anonymised Parties

Sales Assistant

Retailer

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00023529-002

26/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00023529-003

26/11/2018

The Complainant was employed as a Sales Assistant with the Respondent from 3rd July 2018 to 22nd November 2018 on an hourly rate of €9.50. The Complainant’s hours of work varied from week-to-week.

The Complainant has submitted claims under the Terms of Employment (Information) Act and the Industrial Relations Act in respect of her employment with the Respondent.

The Complaint submits that the contract she was asked to sign did not state her hourly rate or the duration of her probation period and that the hourly rate and the duration of her probation period were only written on the contract after she had signed it.

Furthermore, the Complainant submits that she was not provided with any information in relation to payment for bank holidays, rest periods or sick pay .

The Complainant submits that one of her colleagues told her that the Respondent always gets the contracts signed without all the details being completed so the Complainant thought that this was normal.

The Complainant submits that the Respondent undertook to provide her with a copy of her contract after it been fully completed but that the Respondent failed to do so.

The Respondent submits that she spoke to the Complainant and agreed her terms and conditions with her before asking her to sign a contract.

The Respondent conceded that she wrote the rate of pay and the duration of the probationary period on the contract after it had been signed by the Complainant. She also conceded that the finalised contract was not provided to the Complainant.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 provides:

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

( a) the full names of the employer and the employee,

( b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

( c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

( d) the title of the job or nature of the work for which the employee is employed,

( e) the date of commencement of the employee’s contract of employment,

( f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

( fa ) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,  

(g) the rate or method of calculation of the employee ’ s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

( ga ) that the employee may, under section 23of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,  

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or 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, and

(ii) pensions and pension schemes”

Section 3 (4) of the Act states that: “A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer”.

The Act does not require that the statement of the employee’s conditions is signed by the employee – only by the employer. It is not usual, however, for an employer to ask an employee to sign a contract of employment which includes their statement of conditions.

I note the Respondent’s submission that she discussed the Complainant’s rate of pay with the Complainant before she asked her to sign the Contract of Employment. Regardless of this, I am of the view that the Respondent took advantage of the Complainant’s youth and inexperience when she asked her to sign a contract which did not include the Complainant’s rate of pay. Under no circumstances is it ever acceptable for an employer to require an employee to sign a contract of employment which omits key information such as the rate of pay.

Based on the totality of the evidence submitted at the hearing, I find that the Respondent did not issue the Complainant with a statement of her terms which detailed all the particulars of employment required under Section 3(1) of the Act and which was signed and dated by or on behalf of the employer in accordance with Section 3(4) of the Act.

Section 7(d) of the Terms of Employment (Information) Act provides that, if an Adjudication Officer finds a complaint under Section 7 of the Act to be well-founded, they may “order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977”.

The relevant regulations in this regard are the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977. Regulation 7 provides that where an employee’s rate of pay varies on a week-by-week basis, the weekly rate of pay shall be calculated as follows:

“(a) In the case of an employee who is paid remuneration in respect of the relevant employment wholly or partly at piece rates, or whose remuneration includes commissions (being piece rates or commissions related directly to his output at work) or bonuses, and in the case of any other employee whose remuneration in respect of the relevant employment varies in relation to the amount of work done by him, his weekly remuneration shall be the amount obtained by dividing the amount of the remuneration to be taken into account in accordance with paragraph (b) of this Regulation by the number of hours worked in the period of 26 weeks mentioned in the said paragraph (b) and multiplying the resulting amount by the normal number of hours for which, at the date of the dismissal of the employee, an employee in the relevant employment was required to work in each week.

(b) The remuneration to be taken into account for the purposes of paragraph (a) of this Regulation shall be the total remuneration paid to the employee concerned in respect of the employment concerned for all the hours worked by the employee in the employment in the period of 26 weeks that ended 13 weeks before the date on which the employee was dismissed, adjusted in respect of any variations in the rates of pay which became operative during the period of 13 weeks ending on the date of dismissal of the employee.”

In this case, however, the employee has insufficient service to allow me to use the calculation mechanism provided above to calculate an average weekly wage. I am of the view, therefore, that it is appropriate to average the weekly payments the Complainant received for the totality of her employment with the Respondent in order to calculate the average weekly wage.

Neither side was in a position to provide copies of the Complainant’s payslips at the hearing, I asked them to email copies of the payslips to me as soon as possible after the hearing.

After the hearing, the Respondent and Complainant submitted identical information in relation to the wages paid to the Complainant by the Respondent.

Based on the figures provided by the parties, I have calculated that the average weekly rate of pay for the Complainant during her employment with the Respondent was €228.50.

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened Section 3 of the Act and that the complaint is well founded. I order the Respondent to pay to the Complainant compensation in the amount of €914 being the equivalent of approximately four weeks’ pay in respect of the contravention, the maximum award permitted under the Act.

The Respondent submits that:

She had spoken to the Complainant many times in relation to putting stock back correctly.

A customer returned to the shop on Monday 19th November 2018 with two different size shoes. The customer was very cross and upset that she to come back to the shop. The customer advised the Respondent that the Complainant had sold the shoes to her.

The Respondent had a chat with the Complainant in the storeroom. She said to the Complainant that she seemed to have little interest in her work. The Complainant shrugged her shoulders and grunted at the Respondent.

When the Respondent then asked the Complainant if she still wanted to work for her, she got the same reply – she shrugged her shoulders and grunted at the Respondent.

The Respondent then said “it does not seem like you want to continue work here”. The Complainant did not answer her so she then said it probably best if they parted company.

The Complainant then left to take her lunch break and never came back.

The Complainant submits that:

The Complainant disputes that the Respondent ever came to her regarding a mistake.

The Complainant only met the Respondent four times during the course of her employment and she had never been reprimanded for any mistakes. In fact, after 2 days training she was left to mind the shop on her own. The only comments that she received were from one of her colleagues who told her that the Respondent was very happy with her.

The Complainant believes that she consistently sold more shoes than her colleagues.

On a very regular basis her work colleague failed to show up on time on a Sunday and the Complainant always covered for her even if it meant that she missed her breaks.

There was no proof that she had served the customer who returned with the different size shoes.

The Complainant had a colleague who was of a similar age to her and had the same colour hair. As the Respondent’s staff do not have do not wear name badges, it would not have been possible for the customer to know who served her.

The Complainant alleges that on 22nd November 2018, the Respondent received a call from another retailer looking for a reference for the Complainant and that the Respondent was annoyed that the Complainant was seeking alternative employment. It is the Complainant’s opinion this is why the Respondent called to see her.

In the store room the Complainant was nervous because, in her opinion, the Respondent is a very strong character who can intimidate people. The Respondent said to her that “her heart hasn't been with the Respondent and it hasn't been for a while". The Complainant couldn't respond because she was about to cry, purely as a reaction to the Respondent’s manner.

The Respondent then said "l will give you your week’s notice". Again she was too upset to respond and she couldn't understand what she had done wrong.

The Respondent told her to go for her break. She took her bag and coat and headed out of the shop extremely upset because she did not know why or what she had been fired for. She was too upset to go back to work.

Whilst an employee with less than twelve months of service is not covered by the Unfair Dismissals Acts, the fact that they may be on probation does not negate their entitlement to fair procedures in relation to grievance and disciplinary matters.

In a recent well-publicised Labour Court determination concerning an employee of the Park Hotel Kenmare (LCR21798) who was dismissed while on probation, the Court found that:

“Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.

… The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

It follows, therefore, that before a decision is made to dismiss an employee, an employer should first tell the employee of the respects in which he or she is failing to do the job adequately, warn the employee of the possibility of dismissal on this ground and give the employee an opportunity of improving their performance.

The Respondent submitted that one of the managers had had a number of conversations with the Complainant about her performance. The Respondent was unable to provide any evidence in relation to the substance or the outcome of the conversations.

I find, therefore, that prior to her dismissal, the Complainant was not made aware of any issues concerning her performance and, if such issues existed, she was not given the opportunity to address them.

Given the impact that a dismissal has on an employee in terms of loss of income and reputation, an employer should ensure that the decision to dismiss is not taken lightly even when the employee is on probation.

In the herein case, I am satisfied that the Respondent’s handling of the entire matter clearly breached the Complainant’s right to fair procedures and natural justice.

I recommend that the Respondent pay the Complainant the sum of €500 in compensation for her unfair dismissal.

Terms and Conditions; Unfair Dismissal