Complainant

Respondent

Anonymised Parties

A bar staff employee

Public House / Restaurant

Representatives

self

Did not attend.

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-00026490-003

23/02/2019

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

CA-00026490-005

23/02/2019

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

CA-00026490-006

23/02/2019

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

CA-00026490-007

23/02/2019

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

CA-00026490-008

23/02/2019

The Complainant was employed as a member of bar staff by the Respondent from 30th November 2018 until 19th January 2019. This comes to a total of 7 weeks employment.

This complaint was received by the WRC on 23/02/2019. There are five specific complaints included in the file referred to as ADJ – 00020004:

CA – 00026490 – 003 – complaint referred under section 27 of the Organisation of Working Time Act, 1997 – paid holiday / annual leave entitlement.

CA -00026490 – 005 – complaint referred under section 27 of the Organisation of Working Tine Act, 1997 – public holiday entitlements.

CA – 00026490 – 006 – complaint referred under section 7 of the Terms of Employment (Information) Act 1994 – no written statement of terms and conditions of employment issued.

CA – 00026490 – 008 – complaint referred under section 11 of the Minimum Notice and Terms of Employment Act, 1973 – no notice issued.

CA – 00026490 – 007 – complaint referred under the Industrial Relations Acts. The Complainant is claiming that she was unfairly dismissed.

The Complainant requested a week off from her employment to travel to Poland for medical reasons. When she returned she did not receive a roster as she would normally, she then texted one of her colleagues to send her a copy of the roster, the colleague obliged and it was at this point the Complainant saw that she had been allocated no working hours.

The Complainant then contacted management and the owner by email regarding her removal from the roster. After many attempts the owner replied to her emails, this email received by the Complainant informed her that the business was not busy enough and she was not required and that they would contact her when things picked up and there were hours available for her.

Since the Complainant’s removal from the roster new staff members have been added and the Respondent organisation appear to be advertising for staff on a fairly regular basis.

During her period of employment, the Complainant worked the following hours:

The total hours worked during her period of employment appear to be 159 hours.

This total of 159 can be used to calculate a working week of 22.7 hours.

The Respondent did not attend the hearing of the complaint and did not contact the Workplace Relations Commission offering any explanation regarding his non-attendance.

Correspondence in relation to the hearing of the complaint i.e. date, time and venue, were sent to the Respondent on 16th April 2019.

From the uncontested evidence adduced at the hearing of this complaint my findings and decisions are as follows:

CA – 00026490 – 003 – complaint referred under section 27 of the Organisation of Working Time Act, 1997 – paid holiday / annual leave entitlement.

Post-employment the Complainant received holiday pay of 12.7 hours. Based on the hours worked this figure appears to be correct (159 x 8% = 12.72).

This complaint is not well founded and therefore fails.

CA -00026490 – 005 – complaint referred under section 27 of the Organisation of Working TimeTine Act, 1997 – public holiday entitlements.

Section 21 (1) and (4) addresses the subject of public holidays. Section 21 reads as follows:

(1)    Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –

(a)    A paid day off on that day

(b)    A paid day off within a month of that date

(c)     An additional day of annual leave

(d)    An additional day’s pay

Subsection (4) reads as follows:

       (4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not       being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before the public holiday.

I am satisfied that the Complainant fulfils the criteria of subsection (4) and therefore should have been paid for the three public holidays during her employment i.e. Christmas Day, St Stephen’s Day and New Year’s Day.

The complainant should now be paid for these three days that I calculate to 13.62 at her hourly rate.

CA – 00026490 – 006 – complaint referred under section 7 of the Terms of Employment (Information) Act 1994 – no written statement of terms and conditions of employment issued.

Section 3 of this legislation reads as follows:

(1)    An employer shall, no 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 - ……………

Section 7 of the legislation at section 7 (2) reads as follows:

(2)    A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:

d)      Order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

From the evidence adduced at hearing I am satisfied that no statement was issued to the Complainant and I now order the Respondent to pay to the Complainant compensation of €500.

CA – 00026490 – 008 – complaint referred under section 11 of the Minimum Notice and Terms of Employment Act, 1973 – no notice issued.

Under this legislation the Complainant was entitled to one weeks’ notice, she received no notice. I now order the Respondent to pay her one week’s wages in lieu of notice.

CA – 00026490 – 007 – complaint referred under the Industrial Relations Acts. The Complainant is claiming that she was unfairly dismissed.

On her return from sick leave the Respondent has failed to schedule the Complainant any work hours. By email the Respondent wrote to her advising that the pub/restaurant was not busy at present and when that changed he would contact her.

At hearing the Complainant advised that new employees had been hired and that the pub/restaurant had advertised for staff on a fairly regular basis. She interprets this that she has been dismissed from her employment. I cannot disagree with her.

Under Section 13 of the Industrial Relations Acts, 1969 I am required to make a recommendation. I now recommend the payment by the Respondent of €2,000 to the Complainant.

All awards should be made within 42 days from the date of this decision / recommendation.

As outlined above.