ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021192
Parties:
| Complainant | Respondent |
Anonymised Parties | Retail employee | Retail Store |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00027812-001 | 16/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00027812-003 | 16/04/2019 |
Date of Adjudication Hearing: 01/08/2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 - 2015,and Section 27 of the Organisation of Working Time Act 1997, following 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 contends that he was unfairly dismissed from his employment. He further contends that he did not receive his statutory entitlement to breaks. |
Summary of Complainant’s Case:
CA-00027812-001 Unfair Dismissals Act 1977 The Complainant was employed by the Respondent from 4th June 2018 until 16th October 2018 when he was dismissed due to alleged underperformance. He submits that this was a disingenuous reason. He had a number of complaints against the employer. He was on minimum wage of €9.55 per hour. However, due to the fact that the employer required him to clock in 10 minutes before every shift and stay as long as it took to finish work before leaving the shop, he contends that this meant in fact that he was working for less than the minimum wage. He stated that he brought this to the attention of his employer, and that he was dismissed shortly thereafter. CA-00027812-003 Organisation of Working Time Act 1997 The Complainant stated that he did not receive his statutory entitlement to breaks as provided for in the regulations governing breaks at work for shop employees. |
Summary of Respondent’s Case:
Preliminary Point The Respondent argues that the complaints are out of time. The Complainant’s employment ended on 16th October 2018. The complaints were submitted on 16th April 2019. They are therefore one day later than the 6 month time limit provided for in the Acts. CA-00027812-001 Unfair Dismissals Act 1977 The Complainant was working for the Respondent for in or around 4 months. He was in the probationary period of his contract. He had sales targets to meet as part of his role. He had less than one year’s service and the Unfair Dismissals Act does not apply. He was dismissed on grounds of performance. CA-00027812-003 Organisation of Working Time Act 1997 The Complainant’s claims under the Act are denied. Furthermore, this matter has already been addressed with the Complainant by way of an ex-gratia payment. |
Findings and Conclusions:
The Respondent raised a preliminary point that the complaints were out of time. The complaint was received on 16th April 2019. The date of termination of the Complainant’s employment as cited in his complaint form was 16th October 2018 and this appears to have been the last day of his working period with the Respondent. However, the definition of the date of dismissal in the Act provides inter alia that
“date of dismissal” means –
(b) where either prior notice of the termination of the contract of employment is not given or the notice given does not comply with the provisions of the contract of employment or the provisions of the Minimum Notice and Terms of Employment Act 1973 to 2005, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates –
(i) the earliest date that would be in compliance with the provisions of the contract of employment,
(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act 1973 to 2005”.
I have decided, that in accordance with the definition as provided for in the Act, that the date of dismissal in this instant case was 23rd October 2018. The complaint is therefore in time.
In relation to the claim that the Complainant is entitled to bring his complaint under the Unfair Dismissals Act 1977, having less than one year’s continuous service, the Complainant relies on Section 36 (2) of the Minimum Wage Act 2000. That Section of that Act provides that the dismissal of an employee for exercising his or her rights under the Act shall be deemed to be an unfair dismissal with the added phrase “except that it is not necessary for the employee to have at least one year’s continuous service with the employer”.
In order to succeed in his claim that he was dismissed for exercising his rights under the Minimum Wage Act, the onus is on the Complainant to prove that the employer acted in a retaliatory manner for an action or actions carried out by him to exercise his rights under the Minimum Wage Act. I accept the Complainant’s evidence that he complained about the extra time he was required to work and he brought to the attention of the Respondent that he believed this to mean in effect a breach of the Act. I also note the Respondent’s evidence that the Complainant’s performance was deemed to be deficient and he was given feedback on it at the review meeting on 2nd October 2018. Albeit in the context of the Health and Safety legislation, in considering the concept of retaliatory action for having exercised an employee’s rights, the Labour Court found in Toni and Guy v Paul O’Neill HSD095 that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment for which he or she complains was imposed “for” having committed one of the acts protected by the Act. This in effect, means that “but for” the fact that the employee exercised his rights, he would not have been dismissed. In this instant case, I find that the Complainant was not dismissed for having exercised his rights under the Minimum Wage Act and I find his complaint to be not well founded.
CA-00027812-003 Organisation of Working Time Act 1997 The Complainant relies on S.I. No. 57/1998 – Organisation of Working Time (Breaks at work for shop employees Regulations 1998) in support of his complaint that he did not receive a break of one hour during the requisite hours. The regulations provide that “shop employees whose hours of work include the period 11.30am to 2.30pm shall, after 6 hours work, be allowed a break of one hour which must commence between those hours (provided such commencement would not result in the break occurring at the end of the working day). |
The Complainant’s main complaints were the fact that he had to come in 10 minutes earlier than his start time and stay later than his finish time. I was provided with no evidence that he was denied the break times as provided for in the Act and The Regulations. I find the complaint to be not well founded.
Decision:
For the reasons cited above, the complaints are not well founded.
Dated: 8/10/19
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Unfair Dismissal. Minimum Wage. Breaks. |