ADJ-00018406

Complainant

Respondent

Anonymised Parties

A Childcare Assistant

A childcare facility

Representatives

Self

Did not attend hearing.

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-00023731-001

29/11/2018

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

CA-00023731-002

29/11/2018

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

CA-00023731-003

29/11/2018

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

CA-00023560-001

27/11/2018

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

CA-00023560-002

27/11/2018

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

CA-00023560-003

27/11/2018

The Complainant commenced employment with the Respondent on 05/06/2018 as a childcare assistant and worked with the Respondent until 24/11/2018. The Complainant worked 40 hours per week and received €12 per hour, a weekly wage of €480.00.

The Complainant lodged her claim with the Workplace Relations Commission on 27th November 2018 and this consisted of three individual complaints:

CA – 00023560 – 001 – referred under section 7 of the Terms of Employment (Information) Act, 1994.

CA – 00023560 – 002 – referred under the Industrial Relations Acts.

CA – 00023560 – 003 – referred under section 11 of the Minimum Notice and Terms of Employment Act, 1973.

CA – 00023560 – 001 – referred under section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant alleges that she was not issued with a statement of the particulars of employment pursuant to section 3 of the Terms of Employment (Information) Act, 1994.

The Complainant asked the Respondent for this on several occasions and was told by the Respondent that she was working on it.

CA – 00023560 – 002 – referred under the Industrial Relations Acts.

The Complainant alleges that she was dismissed from employment.

On 23rd November 2018 while working the Complainant was working with seven children between the ages of 11 months and 2 years old. The only other adult who was present in the room was a college student who was on a work placement, this was the first week of such placement. The Complainant contends that under the Education and Care Services National Regulations 2011 a student or volunteer cannot be counted towards ratio. Therefore, the Complainant was the only qualified worker present in this room on the above date, this left her with a ration of 1 adult to seven children for the day. This left he out of ratio. The Complainant quotes samples of how ratios are calculated. The Complainant admits to being under severe stress on the day in question.

In mid afternoon the Complainant took two children, one aged 11 months and the other 18 months old to the have their nappies changed. Whilst chaging the younger child the Complainant noticed the other child crying and walking around the room. The Complainant placed the younger child standing in a basket that supported the child. The Complainant then saw to the older child.

Whilst she was seeing to the older child a supervisor entered the changing area, the supervisor told the Complainant that she should have called for some help.

At approximately 5.30pm the supervisor informed the Complainant that the owner/manager wanted to speak to her in the office. The owner/manager informed the Complainant that she would not be keeping the Complainant in employment due to the earlier incident.

The Complainant maintains that she became very emotional and started crying. When the owner/manager saw how upset the Complainant had become she approached her and informed her that she was revoking the dismissal and issuing a final warning instead.

At 3.20pm on Saturday 24th November the Complainant received an email from the owner/manager, this email stated that although the dismissal had been revoked the previous day she was now going ahead and dismissing the Complainant.

CA – 00023560 – 003 – referred under section 11 of the Minimum Notice and Terms of Employment Act, 1973.

The Complainant was notified of her dismissal on the day the dismissal took place.

The Respondent did not attend the hearing of the complaints.

Correspondence in relation to the hearing of the complaints was sent to the Respondent some four weeks prior to the hearing.

This correspondence contained information in relation to the hearing i.e. date, time and venue.

From the uncontested evidence adduced at hearing my findings are as follows:

CA – 00023560 – 001 – referred under section 7 of the Terms of Employment (Information) Act, 1994.

Section 3 of the Terms of Employment (Information) Act, 1994 reads as follows:

3. (1) 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 employer and employee

b)      The address of the employer in the state

c)       The place of work

d)      The title of the job or nature of the work

e)      The employee’s date of commencement

f)        In the case of a temporary contract of employment, the expected duration of same etc

g)       The rate or method of calculation of the employee’s remuneration

h)      Pay intervals

i)        Terms or conditions related to the rate of pay

j)        Terms or conditions related to paid leave

k)       Any terms or conditions in relation illness and pension schemes

l)        The notice period by both employer and employee

m)    Reference to any collective agreements that may be in place.

Pursuant to section 7 (2) (d) of the Act I now order the Respondent to pay compensation of four weeks pay to the Complainant for this breach of section 3 of the Act. Four weeks pay equates to €1,920.

CA – 00023560 – 002 – referred under the Industrial Relations Acts.

The Respondent dismissed the Complainant with no process whatsoever. I have no option but to find the Complainant was unfairly dismissed and under the Industrial Relations Act now recommend the payment of two weeks pay as compensation. This amounts to €960.00.

This recommendation takes into consideration that the Complainant commenced work with another employer two weeks after her dismissal by the Respondent.

CA – 00023560 – 003 – referred under section 11 of the Minimum Notice and Terms of Employment Act, 1973.

Under this legislation the Complainant was entitled to one weeks’ notice. I order the Respondent to pay the Complainant one weeks pay, €480.00 in lieu of notice.

All payments should be made to the Complainant within 42 days from the date of this decision.

As outlined above.