ADJUDICATION OFFICER DECISION and RECOMMENDATION

Adjudication Reference: ADJ-00016422

Parties:

	Complainant	Respondent
Anonymised Parties	A Retail Assistant	A Retail and Service Station

Complaint(s):

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-00021220-001	17/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00021220-002	17/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00021220-003	17/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00021220-004	17/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00021220-005	17/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00021220-006	17/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00021220-007	17/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00021220-008	17/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00021220-009	17/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-010	17/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-011	17/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-012	17/08/2018

Date of Adjudication Hearing: 26/08/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 7 of the Terms of Employment (Information) Act, 1994,Section 45A of the Industrial Relations Act, 1946 ; Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 13 of the Industrial Relations Act, 1969 ; Section 77 of the Employment Equality Act, 1998 ; Section 21 Equal Status Act, 2000and/orSection 11 of the Minimum Notice & Terms of Employment Act, 1973following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The issues in contention concern the alleged Unfair Dismissal of a Service Station/Retail worker by a Service Station. A number of other Complainants were also made concerning Employment Information, Notice Pay rights and Discrimination contrary to the Equal Status Act,2000 and the Employment Equality Act,1998.

1: Summary of Complainant’s Case:


Act	Complaint/Dispute Reference No.	Summary Complaint
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00021220-001	No statement in writing of Terms and Conditions of Employment
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00021220-002	No Statement in writing of a change to T & Cs of Employment.
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00021220-003	Did not receive the Terms and Conditions of an Employment Regulations Order.
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00021220-004	Unfair Dismissal (not having 12 months service.)
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00021220-005	Exemptions claimed to the 12 months Unfair Dismissals rule.
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00021220-006	Not having 12 months service. - Constructive Dismissal under the IR Act
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00021220-007	Subject to Bullying and Harassment by the Respondent Employer.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00021220-008	Suffered Discrimination on Civil Status grounds.
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00021220-009	Suffered Discrimination on Equal Status ground
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-010	Did not receive Minimum Notice payments on ending of employment.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-011	Did not receive all legal rights due during the period of Minimum Notice.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-012	Withdrawn claim. Not pertinent to Employees.

2: Summary of Respondent’s Case:


Act	Complaint/Dispute Reference No.	Summary Arguments in Rebuttal of complaint.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00021220-001 No statement in writing of Terms and Conditions of Employment	Accepted but a purely technical issue not meritorious of any Award.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00021220-002 No Statement in writing of a change to T & Cs of Employment.	Accepted but a purely technical issue not meritorious of any Award. Notwithstanding the above there were no “Changes to T &Cs” during the employment.
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00021220-003 Did not receive the Terms and Conditions of an Employment Regulations Order.	No ERO applies to the Sector in which the Complainant was employed. Claim must be dismissed accordingly.
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00021220-004 Unfair Dismissal (not having 12 months service.)	Unfair dismissal is contested. The Complainant was made aware of the short-term nature of her employment and its relationship to Term Times/Student nos in Carlow IT. She was let go properly in August 2018 as the volume of trade in the business was in a Summer lull. This had been explained to her well in advance. Any procedural issue in relation to the mechanics of the Termination were minor any do not take from the basic facts of the case.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00021220-005 Exemptions claimed to the 12 months Unfair Dismissals rule	Not valid, none of the stated exemptions (for example Pregnancy/Trade Union/ Religious or Sexual orientation etc) apply in this case.
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00021220-006 Not having 12 months service. - Constructive Dismissal under the IR Act	Can not apply. Complainant was Dismissed.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00021220-007 Subject to Bullying and Harassment by the Respondent Employer.	Absolutely denied. No material evidence produced to support any allegations.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00021220-008 Suffered Discrimination on Civil Status grounds.	Denied No evidence produced to support a Discrimination claim on Civil Status Grounds.
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00021220-009 Suffered Discrimination on Equal Status ground	Does not apply. Complainant was an employee. Not cover in this Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-010 Did not receive Minimum Notice payments on ending of employment.	Denied absolutely. Wages records produced to support Respondent position.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-011 Did not receive all legal rights due during the period of Minimum Notice	Absolutely denied No evidence at all produced to support case.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-012	Withdrawn claim. Not pertinent to Employees.

3: Findings and Conclusions:


Act	Complaint/Dispute Reference No.	Adjudication Findings and Conclusions
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00021220-001 No statement in writing of Terms and Conditions of Employment	Well Founded No Statement regarding T &C produced. Admission by Respondent. A largely Technical breach of the Act. An Award of €100 is made to the Complainant in Compensation for a Breach of a Statutory right.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00021220-002 No Statement in writing of a change to T & Cs of Employment.	Not Well Founded No evidence of any material changes to T &Cs during period of employment that would have required a Statement in Writing of any changes.
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00021220-003 Did not receive the Terms and Conditions of an Employment Regulations Order.	Not Well Founded. No ERO applicable to this Sector.
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00021220-004 Unfair Dismissal (not having 12 months service.)	The Complainant was one of three staff whose contracts were ended over the Summer of 2018. The Complainant had been employed on the understanding that the work was reliant on the business through put from the College Students (The College is next door). The Respondent Principal had been on Maternity leave and on returning in late July decided to end the Employment of the Complainant in early August. The continued employment of the Complainant had been facilitated by the principal’s maternity absence. The Principal and her Partner/Business colleague were very happy with the Complainant’s work and would have brought her back in October when the College business resumed. While the actual ending of employment may have been somewhat abrupt for the Complainant there was nothing unfair in letting an employee go when there was no business to support their employment. On Adjudicator questioning as to why it was a Dismissal as opposed to Lay Off until the College came back she advised that this option had not occurred to her. Having heard all the evidence (and mindful of SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures) I came to the view that the ending of the employment was quite abrupt for the Complainant. It was not clear that she had grasped the effective seasonal nature of the position. Her command of English was questioned by the Respondent and this did not help matters. Not having a written contract or statement of T&Cs also did not help the Complainant’s understanding of her actual employment position. However, with the ending of two colleagues’ employments and the obvious downturn in Summer business the ending of her position or at minimum a major reduction in hours, must have been, at the very least, expected. None the less the manner of the ending was abrupt, and I felt fell short of good employment procedures. It is accordingly deemed to be procedurally Unfair. As regard redress I noted that the Complainant remained on Unemployment Benefit “Until it ran out”/ (as sated in oral evidence) for approximately one year after ending work. I did not get the impression that she had been actively seeking other work in her first year post the ending of this position. The Respondents indicated that they would gladly have taken her back in October. This option did not seem to have been explored by the Complainant. Accordingly, an award of €650 is Recommended in respect of the Procedural Shortcomings in the ending of the employment.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00021220-005 Exemptions claimed to the 12 months Unfair Dismissals rule	Complaint is Not Well Founded None of the stated exemptions (for example Pregnancy/Trade Union/ Religious or Sexual orientation etc) apply in this case.
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00021220-006 Not having 12 months service. - Constructive Dismissal under the IR Act	Not Well Founded Constructive Dismissal cannot be claimed. Complainant was actually Dismissed.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00021220-007 Subject to Bullying and Harassment by the Respondent Employer.	Not Well Founded. A Prima facie evidence base is required to support complaints of this nature. No firm evidence was produced to support any allegations.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00021220-008 Suffered Discrimination on Civil Status grounds.	Not Well Founded. No evidence was produced to support a Discrimination claim on Civil Status Grounds. No Prima Facie case established.
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00021220-009 Suffered Discrimination on Equal Status ground	Not Well Founded Equal Status Act, 2000 does not apply. Complainant was an employee. Not covered in this Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-010 Did not receive Minimum Notice payments on ending of employment.	Not Well founded. Pay Slips / Wages records produced to support Respondent position.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-011 Did not receive all legal rights due during the period of Minimum Notice	Not Well Founded No evidence at all produced to support case.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-012	Not Well Founded Withdrawn claim. Section of the Act relied on relevant only to Employers.

4: Decision and Recommendation:

Section 41 of the Workplace Relations Act 2015; Section 7 of the Terms of Employment (Information) Act, 1994,Section 45A of the Industrial Relations Act, 1946 ; Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 13 of the Industrial Relations Act, 1969 ; Section 77 of the Employment Equality Act, 1998 ; Section 21 Equal Status Act, 2000and/orSection 11 of the Minimum Notice & Terms of Employment Act, 1973requires that I make a Decision and or Recommendation in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Act	Complaint/Dispute Reference No.	Adjudication Decision and Or Recommendation. Detailed reasoning in Section Three of this Adjudication decision above.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00021220-001 No statement in writing of Terms and Conditions of Employment	An Award of €100 is made to the Complainant in Compensation for a Breach of a Statutory right.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00021220-002 No Statement in writing of a change to T & Cs of Employment.	Not Well Founded Complaint Set Aside
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00021220-003 Did not receive the Terms and Conditions of an Employment Regulations Order.	Not Well Founded. Complaint Set Aside
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00021220-004 Unfair Dismissal (not having 12 months service.)	Well Founded Dismissal deemed to be procedurally Unfair. An award of €650 is recommended.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00021220-005 Exemptions claimed to the 12 months Unfair Dismissals rule	Complaint is Not Well Founded Complaint Set Aside
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00021220-006 Not having 12 months service. - Constructive Dismissal under the IR Act	Not Well Founded Complaint Set Aside
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00021220-007 Subject to Bullying and Harassment by the Respondent Employer.	Not Well Founded. Complaint Set Aside
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00021220-008 Suffered Discrimination on Civil Status grounds.	Not Well Founded. Complaint Set Aside
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00021220-009 Suffered Discrimination on Equal Status ground	Not Well Founded Complaint Set Aside.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-010 Did not receive Minimum Notice payments on ending of employment.	Not Well Founded. Complaint Set Aside.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-011 Did not receive all legal rights due during the period of Minimum Notice	Not Well Founded Complaint Set Aside
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00021220-012	Not Well Founded Withdrawn claim.

Dated: 11/11/19

Workplace Relations Commission Adjudication Officer: Michael McEntee

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