Complainant

Respondent

Anonymised Parties

Chef

Licensed Premises Owner

Representatives

Self

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-00027040-001

12/03/2019

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

CA-00027040-002

12/03/2019

The complainant commenced employment with the respondent as a full-time chef on 17 July 2018.   The complainant posted a comment on 1 March 2019 on social media in relation to standards of food presentation in the respondent’s premises. The complainant was removed from the roster and requested to hand back keys to the premises. The complainant was not rostered for any more work by the respondent.

The complainant had concerns about a number of aspects regarding standards in the kitchen where he worked.

The complainant posted a comment on 1 March 2019 in this regard in a whatsapp group forum which was used by staff and the owner.

The complainant was never subsequently rostered for work by the respondent. The complainant was requested by text by the respondent to leave the keys of the premises into the local Garda station.

Attempts by the complainant to arrange a meeting with the respondent were unsuccessful.

The complainant did not receive any payment in lieu of notice and is also due holiday pay and payment for Public Holidays

There was no attendance by the respondent at the hearing.

This case was listed for hearing in conjunction with the complaints contained in file ADJ-00021072 which involved the same complainant and respondent. The respondent was not in attendance at the hearing. It is my practice, in situations where a party is not present, to defer the commencement of the hearing for a short period to allow for delays that might occur due to traffic, difficulty in locating the hearing location, etc. In this regard, due to other factors, the commencement of the hearing was delayed and therefore that possibility was not relevant.  No explanation was received as to the respondent’s non-attendance. On examining the file, I note that the complaint was received by the WRC on 12 March 2019. The respondent was notified of the complaint on 26 March 2019 and details of the arrangements for the hearing were sent to the parties on 11 April 2019. On 15 April there is a note of a telephone call being received by the WRC from the respondent in relation to the complaint. On 7 May the respondent applied for and was granted a postponement.   The postponement was granted on the basis that the respondent claimed that the correspondence was delayed in reaching him as the address was incorrect. In this regard I note that the original correspondence was sent to the address provided to the WRC by the complainant. This was stated to be No. 17 on the particular street that the premises were sited. The amended address as provided by the respondent was Nos. 14 / 15 on the same street. The name of the licensed premises was, however, also included in the address on all correspondence. A new date for the hearing (12 September) was notified to the parties on 1 August 2019.   The amended address as supplied by the respondent was on the notice sent to him. No further communication either prior or subsequent to that hearing was received from the respondent. I am satisfied therefore that the respondent was duly informed in writing of the arrangements for the hearing at which the complaints would be investigated.

Complaint No. CA-00027040-001:

This is a complaint under the Organisation of Working Time Act, 1997. In his written submission in respect of this complaint the complainant stated that he often worked in excess of 50 hours per week. In evidence at the hearing the complainant accepted that he had agreed to work extra hours but this was in order to ensure the success of the food business side of the operation. The complainant supplied pay slips as evidence in this regard.

Section 15 of the Act states:

(1)    An employer shall not permit an employee to work, in each period of seven days, more than an average of 48 hours calculated over a period (hereinafter 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 referred to 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 in section 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 engaged in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

I have examined the pay slips provided and whilst I identified 8 weeks in the period 22 July 2018 until 24 February 2019 in which the weekly hours exceeded 48 hours there was also a significant number of weeks when the weekly total was less than 40 hours. In applying the 4-month averaging period I have not identified a breach of this Section whereby the complainant worked more than an average of 48 hours per week.

Complaint No. CA-00027040-002:

This is a complaint under the Minimum Notice and Terms of Employment Act, 1973. The complainant states that his employment was terminated due to the actions of the respondent in removing him from the roster, requesting that the complainant hand in the keys to the premises to the local Garda station and then refusing to meet the complainant to discuss the matter. The catalyst appears to be a message posted by the complainant on a whatsapp site set up for the kitchen staff complaining about the manner in which food was presented and, in particular, about a fellow employee. That message was addressed to the respondent but obviously could be read by all in the group. Evidence was given by the complainant’s partner of a phone conversation that she had with the respondent regarding arrangements for the return of the keys in which the respondent stated that the complainant was not sacked, that he could be put back on the roster in six months’ time and that he would meet the complainant to discuss matters. This meeting never took place even though the respondent was advised of when the complainant was available to meet him. Given the evidence before me I find that the actions of the respondent in unilaterally removing the complainant from the roster, not providing him with work and subsequently refusing to meet with the complainant amounted to a repudiation of the contract of employment.

“If an employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat themselves as discharged from any further performance”. Western Excavating ECC Limited v Sharp.

I therefore find that a termination of employment took place. Section 4 of the Act states:

(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 –

(a)    If the employee has been in the continuous service of his employer for less than two years, one week.

The complainant is therefore entitled to one week’s pay. The average weekly hours of the complainant for the thirteen weeks preceding the termination, based on the payslips provided, amount to 39.19 hours.   The hourly pay of the complainant was €14.00 per hour. The amount due in this regard is therefore €548.66.

Complaint No. CA-00027040-001:

For the reasons set out above I find this complaint under the Organisation of Working Time Act, 1997, not to be well founded and it accordingly fails.

Complaint No. CA-00027040-002:

For the reasons set out above I find this complaint under the Minimum Notice and Terms of Employment Act, 1973, to be well founded and I order the respondent to pay to the complainant the sum of €548.66.