ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016423
Parties:
| Complainant | Respondent |
Anonymised Parties | Officer Worker | A Ferry Company |
Representatives |
| Peninsula Group Limited |
Complaints:
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-00019867-001 | 19/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00019867-002 | 19/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00019867-003 | 19/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00019867-004 | 19/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00019867-005 | 19/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00019867-006 | 19/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00019867-007 | 19/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00019867-008 | 19/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00019867-009 | 19/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00019867-010 | 19/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00019867-011 | 19/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00019867-012 | 19/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00019867-013 | 19/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00019867-014 | 19/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 | CA-00019867-015 | 19/06/2018 |
Date of Adjudication Hearing: 01/03/2019
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant worked with the respondent since 14th June 2005 from approximately March till October each year due to the seasonal nature of the work. He submitted a number of complaints and CA-00019867-002 and CA-00019867-014 were withdrawn |
Summary of Complainant’s Case: CA-00019867-001
The complainant detailed that he was not given compensation for Sunday working. |
Summary of Respondent’s Case: CA-00019867-001
The respondent detailed that the claim was out of time and that in the cognisable period the complainant had received all his entitlements. |
Findings and Conclusions: CA-00019867-001
Preliminary Issue: By application of the time limit provided, the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 20th December 2017 to 19th June 2018.
Even if this was extended by a further six months the complainant confirmed that he received his entitlements throughout 2017.
I find, therefore, that this complaint is not well founded as there is no evidence of a contravention within the cognisable period. |
Summary of Complainant’s Case: CA-00019867-002
The complainant withdrew this complaint. |
Summary of Complainant’s Case: CA-00019867-003
The complainant detailed that he was not given daily rest periods. |
Summary of Respondent’s Case: CA-00019867-003
The respondent detailed that the claim was out of time and that in the cognisable period the complainant had received all his entitlements. |
Findings and Conclusions: CA-00019867-003
Preliminary Issue: By application of the time limit provided, the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 20th December 2017 to 19th June 2018.
Even if this was extended by a further six months the complainant confirmed that he received his entitlements throughout 2017.
I find, therefore, that this complaint is not well founded as there is no evidence of a contravention within the cognisable period. |
Summary of Complainant’s Case: CA-00019867-004
The complainant detailed that he was not given breaks. |
Summary of Respondent’s Case: CA-00019867-004
The respondent detailed that the claim was out of time and that in the cognisable period the complainant had received all his entitlements. |
Findings and Conclusions: CA-00019867-004
Preliminary Issue: By application of the time limit provided, the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 20th December 2017 to 19th June 2018.
Even if this was extended by a further six months the complainant confirmed that he received his entitlements throughout 2017.
I find, therefore, that this complaint is not well founded as there is no evidence of a contravention within the cognisable period. |
Summary of Complainant’s Case: CA-00019867-005
The complainant detailed that he worked in excess of the maximum number of hours provided for in the Act. |
Summary of Respondent’s Case: CA-00019867-005
The respondent detailed that the nature of the work was seasonal and that there was no breach of the legislation. |
Findings and Conclusions: CA-00019867-005
Preliminary Issue: By application of the time limit provided the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 20th December 2017 to 19th June 2018 which can be extended by a further six months.
Section 15 details that “An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed— (a) 4 months, or ( b) 6 months— (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or (ii) where due to any matter referred to insection 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or ( c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection. (2) Subsection (1) shall have effect subject to the Fifth Schedule(which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule). (3) The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.
(5) Where an employee is employed in an activity (including an activity referred to in subsection (1) (b) (i))— ( a) the weekly working hours of which vary on a seasonal basis, or ( b) as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature, then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24may specify, for the purposes of subsection (1) (c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).
No sufficient reason to extend the six-month period was provided. Having reviewed the record of the working hours for the Complainant I do not find that his working week, averaged over a six-month period, exceeded a 48-hour working week on average during the cognisable period.
I find, therefore, that this complaint is not well founded as there is no evidence of a contravention within the cognisable period. |
Summary of Complainant’s Case: CA-00019867-006
The complainant detailed that he was not paid annual leave entitlements prior to 2016. |
Summary of Respondent’s Case: CA-00019867-006
The respondent detailed that the claim was out of time and that in the cognisable period the complainant had received all his entitlements. |
Findings and Conclusions: CA-00019867-006
Preliminary Issue: By application of the time limit provided, the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 20th December 2017 to 19th June 2018.
Even if this was extended by a further six months the complainant confirmed that he received his entitlements throughout 2017.
I find, therefore, that this complaint is not well founded as there is no evidence of a contravention within the cognisable period. |
Summary of Complainant’s Case: CA-00019867-007
The complainant detailed that he was not paid public holiday entitlements prior to 2016. |
Summary of Respondent’s Case: CA-00019867-007
The respondent detailed that the claim was out of time and that in the cognisable period the complainant had received all his entitlements. |
Findings and Conclusions: CA-00019867-007
Preliminary Issue: By application of the time limit provided, the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 20th December 2017 to 19th June 2018.
Even if this was extended by a further six months the complainant confirmed that he received his entitlements throughout 2017.
I find, therefore , that this complaint is not well founded as there is no evidence of a contravention within the cognisable period. |
Summary of Complainant’s Case: CA-00019867-008
The complainant detailed that he was not paid his annual leave entitlements when his employment terminated, in relation to a period before 2016. He detailed that a 15-month time limit may apply. |
Summary of Respondent’s Case: CA-00019867-008
The respondent detailed that the claim was out of time and that in the cognisable period the complainant had received all his entitlements. |
Findings and Conclusions: CA-00019867-008
The complainant made reference to a 15-month period that he suggested might apply in his case but was not clear how it might apply. If the complainant is referring to Section 20 of the Act, this refers to where employees are ill “due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and (II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year.” and does not apply in this instant case. Preliminary Issue: By application of the time limit provided the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 20th December 2017 to 19th June 2018.
Even if this was extended by a further six months the complainant confirmed that he received his entitlements throughout 2017.
I find, therefore, that this complaint is not well founded as there is no evidence of a contravention within the cognisable period. |
Summary of Complainant’s Case: CA-00019867-009
The complainant detailed that he was not paid public holiday entitlements when his employment terminated in relation to a period before 2016. He detailed that a 15-month time limit may apply. |
Summary of Respondent’s Case: CA-00019867-009
The respondent detailed that the claim was out of time and that in the cognisable period the complainant had received all his entitlements. |
Findings and Conclusions: CA-00019867-009
The complainant made reference to a 15-month period that he suggested might apply in his case but was not clear how it might apply. If the complainant is referring to Section 20 of the Act, this refers to where employees are ill “due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and (II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year.” and does not apply in this instant case. Preliminary Issue: By application of the time limit provided the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 20th December 2017 to 19th June 2018.
Even if this was extended by a further six months the complainant confirmed that he received his entitlements throughout 2017.
I find, therefore, that this complaint is not well founded as there is no evidence of a contravention within the cognisable period. |
Summary of Complainant’s Case: CA-00019867-010
The complainant detailed that he did not receive terms and conditions of employment. |
Summary of Respondent’s Case: CA-00019867-010
The respondent advised that the complainant had not received written terms and conditions. |
Findings and Conclusions: CA-00019867-010
Section 3 (1) of the Terms of Employment (Information) Act, 1994 states that 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 … terms of the employee's employment.”
I find that the respondent has not met their obligations in providing the complainant with his terms and conditions of employment. I uphold the complaint.
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Summary of Complainant’s Case: CA-00019867-011
The fact of dismissal was in dispute so the complainant presented his complaint in the first instance. The complainant detailed that he had been working with the respondent since 2005 and the nature of the industry was seasonal, and he would work from approximately March till October each year. In March 2017, he was awaiting a call from the respondent regarding when he would resume working. The weather was particularly cold that month, so he was not unduly concerned that no call was forthcoming.
He eventually received a call from one of the owners Mr A who asked him if he had heard anything from one of the other directors, Mr B. The complainant advised that he did not. Around April 17th, 2017, Mr A asked to call over to the complainant’s house for a chat and told him that Mr B did not want the complainant to return to work at the same place as he had previously worked as there had been some disagreements between the complainant and Mr B the previous year. He was told that Mr B wanted the complainant to work at a different location approximately the same distance from his house.
The complainant was unhappy with this as he said the nature of the industry is that you have to get the relevant permits to set up a mobile office like the one that the respondent was suggesting and he could not envisage that the permits would be sorted on time.
On May 2nd he still was not called back to work and the complainant sent in the RP77 to the respondent. He received a reply to his email confirming that redundancy would be paid and received a cheque for €14,556 on 29 May 2018. As he reflected on the circumstances of his employment finishing, he realised that he should not have been made redundant as there was work available for him and he was also surprised that the respondent detailed that his date of cessation was 31 October 2017 as nothing had been said to him at that time that there was no work for him.
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Summary of Respondent’s Case: CA-00019867-011
The respondent detailed that redundancy had been paid to the complainant by mistake and that the complainant had in fact resigned his position.
It was confirmed that the complainant was a seasonal worker and that there had been difficulties between the complainant and Mr B. The meeting in April 2018 took place with Mr A and the complainant when the complainant was offered work at a different location but did not want to go to this new location.
The complainant sent in the RP77 and the respondent paid the redundancy =. However, this was paid in error as the complainant had in fact resigned his position and there was work available for the complainant but the complainant unreasonably refused this work. |
Findings and Conclusions: CA-00019867-011
Preliminary Issue: With dismissal disputed in this case it is thus a matter for the Complainant to establish that he has been dismissed by the Respondent. Section 1 of the Unfair Dismissals Act 1997 provides that: "dismissal", in relation to an employee, means— (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee. (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose; The respondent gave evidence that the complainant did not want to work at the other location and that they paid him redundancy by error when he issued an RP77. The complainant, on the other hand, gave evidence that he believed from the conversation at his home on 17 April 2017 that Mr B did not want him back, that there was no role for him as he knew that it would take a while to get the second office set up. He sent in the RP77 as there was no contact from the respondent and when it was paid and upon reflection, he felt that he had been unfair selected for redundancy and thus unfairly dismissed.
Taking into consideration the evidence I note that both Mr A and the complainant had a good relationship and it seemed accepted that the relationship between Mr B and the complainant was not as good. I find it noteworthy that upon receipt of the complainant’s email about the RP77, the Mr A responded very quickly, and albeit expressed surprise at receiving the RP77, he processed it and paid the redundancy payment.
It is unfortunate, considering the good relationship between Mr A and the complainant that Mr A did not make some efforts to resolve the issues. It also would have been expected that if there was no dismissal, which Mr A details, that he would have met with the complainant to discuss this. I also note that no selection criteria was produced for the ‘redundancy’ and that the location that the complainant was to be moved to has not been set up todate.
The complainant had been with the respondent since 2004 and yet there was very little consideration given to the complainant and if, as the respondent details that it was a resignation, there was no request for the complainant to reconsider his position, which would have been expected. Having considered the totality of evidence in this case, I am satisfied that the complainant's employment was brought to an end by the respondent.
Having established that there was a dismissal, I will next look to establish whether such a dismissal was fair.
Section 6 of the Unfair Dismissals Act, 1977 provides: “(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.… (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. (6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.
The complainant had a good working relationship with the respondent and returned to work each year when the season started. I also note that he attended the previous Christmas party. The respondent denied that that it was a redundancy and I would agree with the respondent on this point; a redundancy situation did not appear to exist. However, having already established that it was in fact a dismissal, the burden of proof shifts to the respondent. It would appear that the respondent decided to terminate the complainant’s employment without affording him any due process with regard to dismissal and depriving him of the principles of natural justice. If there were difficulties between the complainant and Mr B, then discussions could have and should have taken place.
Therefore, having considered the written and oral submissions of the parties, and for the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Acts 1977-2015 and conclude that the Complainant was unfairly dismissed by the Respondent.
Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded and relevant to the instant case where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…” Section 7(2) sets out the factors to be considered when determining the level of compensation and of most relevance to this case are the measures adopted to mitigate losses
Taking all the circumstances into consideration, I find that compensation more appropriate and with regards to efforts to mitigate his loss, the complainant has detailed that he is fit for work but provided no details of efforts to seek any work. He detailed at the hearing that he will not take a role of a lesser value and outlined that his age and his location can restrict his efforts to secure his alternative employment. I find that his efforts to mitigate his losses do not meet the standard set out by the Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) in that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss." Where a complainant has failed to mitigate his loss and thus where no loss occurred, I find the maximum compensation payable in circumstances is four weeks remuneration.
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Summary of Complainant’s Case: CA-00019867-012
The complainant detailed that he did not receive his statutory minimum notice entitlement. |
Summary of Respondent’s Case: CA-00019867-012
The respondent detailed that the complainant resigned his position and therefore, was not entitled to minimum notice. |
Findings and Conclusions: CA-00019867-012
I have already found that the complainant was unfairly dismissed, and it was accepted that no minimum notice had been paid.
Section 4 of the legislation details .— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— ( d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,
I find that the complaint is well-founded. |
Summary of Complainant’s Case: CA-00019867-013
The complainant detailed that he did not receive all his rights in relation to his entitlement to minimum notice. |
Summary of Respondent’s Case: CA-00019867-013
The respondent detailed that the complainant had resigned his position. |
Findings and Conclusions: CA-00019867-013
Section 5 details the rights of employee during period of notice. “5.— (1) The provisions of the Second Schedule to this Act shall have effect in relation to the liability of an employer during the period of notice required by this Act to be given— ( a) by an employer to terminate the contract of employment of an employee who has been in his continuous service for thirteen weeks or more, and ( b) by an employee who has been in such continuous service to terminate his contract of employment with that employer. (2) This section shall not apply in any case where an employee gives notice to terminate his contract of employment in response to a notice of lay-off or short-time given by his employer. (3) Any provision in a contract which purports to exclude or limit the obligation imposed on an employer by this section shall be void.
No evidence was advanced by the complainant as to any other impact on his rights and I find, therefore , that this complaint is not well founded. |
Summary of Complainant’s Case: CA-00019867-014
The complainant withdrew this complaint. |
Summary of Complainant’s Case: CA-00019867-015
The complainant detailed that he was not treated the same as other full-time employees. |
Summary of Respondent’s Case: CA-00019867-015
The respondent detailed that the claim was out of time and that in the cognisable period the complainant had received all his entitlements. |
Findings and Conclusions: CA-00019867-015
Preliminary Issue: By application of the time limit provided the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 20th December 2017 to 19th June 2018.
Even if this was extended by a further six months the complainant confirmed that he received his entitlements throughout 2017.
I find, therefore, that this complaint is not well founded as there is no evidence of a contravention within the cognisable period. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00019867-001 I find, that this complaint is not well founded. CA-00019867-003 I find, that this complaint is not well founded. CA-00019867-004 I find, that this complaint is not well founded. CA-00019867-005 I find, that this complaint is not well founded. CA-00019867-006 I find, that this complaint is not well founded. CA-00019867-007 I find, that this complaint is not well founded. CA-00019867-008 I find, that this complaint is not well founded. CA-00019867-009 I find, that this complaint is not well founded. CA-00019867-010 I find that this complaint is well founded and order the employer to pay compensation of €2,805. CA-00019867-011 I find that the complainant was unfairly dismissed, and the complaint succeeds. I order the Respondent to pay the Complainant the sum of €3,740. CA-00019867-012 I find that this complaint is well founded and order the respondent to pay to the complainant €5,610.CA-00019867-013 I find, that this complaint is not well founded. CA-00019867-015 I find that this complaint is not well founded. |
Dated: 1st May 2019
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Sunday premium, minimum notice, rest periods, breaks, excessive hours, annual leave, public holidays, terms and conditions, unfair dismissal, part-time employees |