Complainant

Respondent

Anonymised Parties

A Post Office Worker

A Post Office

Representatives

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-00021019-001

06/08/2018

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

CA-00021019-002

06/08/2018

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

CA-00021019-003

06/08/2018

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

CA-00021020-001

06/08/2018

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

CA-00021020-002

06/08/2018

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

CA-00021020-003

06/08/2018

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

CA-00021021-001

06/08/2018

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

CA-00021021-002

06/08/2018

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

CA-00021021-003

06/08/2018

The complainant referred complaints against the above respondent on the 6th of August 2018.   She has submitted claims under section 7 of the Terms of Employment (Information) Act, 1994, section 27 of the Organisation of Working Time Act, 1997 & Section 8 of the Unfair Dismissals Act, 1977.

The complainant has submitted that she was subjected to a constructive unfair dismissal by the respondent with her employment terminating on the 26th of March 2018.     I proceeded to a hearing of these complaints on the 1st of February 2019. The complainant submitted her claims on the 6th of August 2018 thus the cognisable 6-month period for the purpose of her complaint’s dates from 7th of February 2018.

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

CA-00021019-001

06/08/2018

The complainant submits that

She did not receive a statement in writing of her terms of employment

The respondent submits that

The complainant was not an employee of the respondent while on a nine-month Job bridge scheme and her employment with the respondent commenced on 8th of May 2017,

The complainant was provided with a contract on the 8th of May 2017 and with two other contracts throughout her employment with them.

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

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

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, ……

Section 5 of the Terms of Employment (Information) act, 1994 obliges the employer to notify the employee of changes to a term or condition within 1 month and states:

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or  

The complainant advised the hearing that she worked for the respondent from August 2016 until March 2018.   The complainant submitted her claim on the 6th of August 2018 thus the cognisable period for her complaint’s dates from 7th of February 2018.

The complainant told the hearing that she was initially employed by the respondent on a job bridge scheme for the first 9 months where the Department of Social Protection paid her, and it is submitted that she had no contract for the first nine months. The complainant stated that following her 9 months working with the respondent on the job bridge scheme the respondent offered her a Part time job but provided her with no Contract.  The respondent advised the hearing that the complainant was not an employee of the respondent while on a nine-month Job bridge scheme and her employment with the respondent commenced on 8th of May 2017.   The complainant told the hearing that she received her first Temporary Contract for a 6-month period beginning 08th of May 2017 and that this was given to her on the 28th of August 2017 which is outside of the two months prescribed in the legislation.   The respondent further advised that the complainant was provided with a contract on the 8th of May 2017 but that she refused to sign that contract until 28th of August 2017, the complainant was provided with two other contracts throughout her employment with the respondent.

The complainant stated that she received a second temporary contract for the period beginning on the 5th of November 2017 and that this was given to her on the 6th of December 2017, it is submitted that her contract in this instance was provided within the required time period. The complainant submitted her claim on the 6th of August 2018 thus the cognisable period for the purpose of her complaint’s dates from 7th of February 2018.

The complainant stated that she received a third contract for the 3-month period beginning on 5th of January 2018 and that this was given to her on the 16th of March 2018 which was outside of the specified two-month period.    A breach under this section is considered a continuing breach where an employer continues to fail to provide an employee with a contract beyond the two-month period within which it is specified a contract is to be provided. In the present case the failure to provide a contract within the specified two-month period commenced on the 4th of March 2018 with the breach starting on that date and continuing thereafter up to the 16th of March 2018 when the complainant states she received her contract from the respondent i.e. 12 days later. The complainant told the hearing that she had been working 1.5 days to 2 days a week during this period thus it would appear that she was without her new contract for 4 days of work.   I note that this was not her first contract with the respondent and that she had previously received two contracts from the respondent in respect of two consecutive periods of employment which directly preceded the current period. The respondent advised the hearing that this contract was essentially identical to the previous contract save for an increase in the specified probationary period from 11 months to 12 and a provision that holidays must not be taken in December.   The respondent further states that the complainant suffered no prejudice or detriment as a result of this 12-day delay.

In considering this matter I am mindful of the Labour Courts decision in Patrick Hall v Irish Water TED161 where the Court held that where mere technical breaches of section 3 of the 1994 Act occur, “the dictates of fairness or equity could not justify an award of compensation”.

Accordingly have regard to all the circumstances and while it is clear that the respondent was 12 days late issuing this contract which is a technical breach of the legislation I am satisfied given the circumstances that this does not warrant an award of compensation. I find that the complaint is well founded but the breach is minor and falls within the De Minimus rule, so no award is made.

I find the complaint is well founded but the breach is minor and falls within the De Minimus rule, so no award is made.

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

CA-00021019-002

06/08/2018

The complainant submits that

She did not receive her holiday pay /annual leave entitlement

The respondent submits that

Any shortfall in the complainant’s pay is due to an unintentional error and the respondent will pay same.

The complainant advised the hearing that he respondent had refused to pay her bank holiday pay in respect of the bank holiday on 18th of March 2018. The complainant stated that the respondent had eventually given in and paid her for this. The complainant stated that the respondent then miscalculated the holiday pay owed to her and the complainant states that she is still owed €18 in this regard.     She stated that she raised this with the respondent and was told it would be lodged to her account but that the lodgement was not made.

The complainant also referred to issues in respect of her p45 and stated that the respondent had combined her payslips for week 11 and week 12 which then brought her into a PRSI bracket which should not have happened if she was issued with two separate payslips for week 11 and week 12. She referred to amounts shown on a p45 and revised p45 which she states meant that incorrect amounts of tax and PRSI were paid.   Those are not covered by this complaint.  

The respondent told the hearing that any shortfall in the complainant’s pay was due to an unintentional error and stated that the respondent would pay the amount owed. The respondent stated that its calculations now show that he complainant is owed €22.50 and the respondent offered to pay the outstanding amount to the complainant.   In relation to the PRSI issue as a result of weeks 11 and 12 being on the same payslip the respondent advised the haring that it would remedy this issue with Revenue. The complainant advised the hearing that she had made contact with the respondent after leaving their employment seeking to have the outstanding amount paid but the respondent even though they agreed to pay the outstanding amount and having assured her that it would be lodged in her account failed to pay the outstanding amount.

I find the complaint well founded and direct the respondent to pay to the complainant the outstanding amount of €22.50 together with compensation of €100 euro.  

I conclude the investigation and find for the complainant.  I find the complaint well founded and direct payment of the €22.50 shortfall together with compensation of €100 euro.    

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

CA-00021019-003

06/08/2018

The complainant submits that the respondent’s behaviour was so unreasonable that she was forced to resign on 19th of March 2018 and that this amounts to an unfair dismissal.

The complainant became an employee on the 6th of May 2017 and resigned on the 19th of March 2018 with an effective termination date of 26th of March 2017 therefore did not have the required 12 months service for an Unfair dismissal claim.

The Complainants claim is one of constructive dismissal pursuant to the Unfair Dismissal Act.

The respondent advised the hearing that the complainant in this case only became an employee on the 6th of May 2017. Prior to this the complainant was employed on a Job bridge scheme and was being paid by the Department of Social Protection. The complainant does not dispute this. The complainant advised the hearing that she had resigned her employment with the respondent on the 19th of March 2018 i.e. ten months after becoming employed by them.

The Unfair dismissals Act provides that a claim in respect of an Unfair Dismissal is subject to an employee being employed for a 12-month period. Given that the complainant was employed by the respondent for less than the required 12-month period this claim fails.

I find that the complainant does not have the required 12 months service for a complaint under the Unfair Dismissals Act and accordingly this claim fails.

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

CA-00021020-001

06/08/2018

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

CA-00021020-002

06/08/2018

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

CA-00021020-003

06/08/2018

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

CA-00021021-001

06/08/2018

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

CA-00021021-002

06/08/2018

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

CA-00021021-003

06/08/2018

The complainant advised the hearing that the above listed claims CA-00021020-001, CA-00021020-002, CA-00021020-003, CA-00021021-001, CA-00021021-002 & CA-00021021-003

are duplicates of the earlier listed claims and are not valid complaints.

I am satisfied that these claims are not well founded and accordingly the claims fail.