Complainant

Respondent

Anonymised Parties

Manager

Night Club

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-00027973-001

25/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00027973-002

25/04/2019

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

CA-00027973-003

25/04/2019

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

CA-00027973-004

25/04/2019

There are four claims relevant to this case namely:

CA-00027973-001:           Complaint for adjudication pursuant to section 7 of the Terms of Employment (Information) Act, 1994

CA-00027973-002:           Complaint for adjudication pursuant to section 13 of the Industrial Relations Act, 1969

CA-00027973-003:            Complaint for adjudication pursuant to section 27 of the Organisation of Working Time Act, 1997

CA-00027973-004:           Complaint for adjudication pursuant to section 27 of the Organisation of Working Time Act, 1997

The Respondent carries on business as a Nightclub owner. The Complainant was employed as a Nightclub/bar General Operative by on or about the 20th May, 2010. The Complainant’s was issued a Contract of Employment. His employment was subsequently transferred to the Respondent on the 3 February, 2015 and the Complainant was advised that the terms and conditions were not affected by that transfer. The Complainant was promoted to the position of Assistant Manager in or around 5 April 2015 and according to the Respondent received comprehensive training in respect of additional duties and responsibilities, including cash handling.  By December, 2018 the Complainant had over three and a half years’ experience in the role of Assistant Manager role. The Complainant earned an hourly rate of €11 when he was initially promoted in April 2015 and this increased to €12 from 25 July 2017, and was paid weekly. On or about the 23 December 2018 the Complainant was suspended, with full pay pending an investigation which took place during December 2018 and January 2019, and a subsequent disciplinary process which concluded on the 15 February, 2019, concerning missing revenue and the Complainant’s performance of his duties, following which the Complainant was demoted to his former position of General Operative. This decision was upheld on appeal. The Complainant has not presented for work due to stress since the 15 February, 2019.

CA-00027973-001

The Complainant states that there was a breach of Section 7 of the Terms of Employment (Information) Act, 1994 in that he was not notified in writing to a change to his terms and conditions of employment after he was given additional duties by the management and the procedures to follow in order to perform those additional duties. The Complainant states that this led to an unfair demotion and reduction of pay for allegedly not fulfilling his responsibilities as an Assistant Manager after some of the businesses money went missing.

CA-00027973-002

The Complainant has a complaint in relation to an industrial dispute under Section 13 of the Industrial Relations Act, 1969.

The Complainant alleges that the investigation and disciplinary procedures did not involve fair procedures. He stated that during the course of his employment he was shown the procedures to follow in order to perform additional duties given to him by the management and he followed these procedures since.  When recently some money went missing the company did not directly accuse anybody of theft and did not report the matter to the Gardai.  The management have instead chosen to indirectly accuse him of theft during a serious of investigations and disciplinary meetings, some of which did not involve a fair procedure.  Eventually the company decided to demote him from his role back to his previous role, for allegedly not fulfilling his responsibilities as an “Assistant Manager”.  The Complainant appealed this decision and together with his trade union representative informed the company that he was never given neither a written change or amendment to his terms and conditions of employment nor any job description or scope of duties and responsibilities.  The Complainant informed them that he was unaware that if any money ever went missing that he would be immediately demoted because nobody every informed him of this.  The Complainant was also informed of the company’s own investigation report which concluded that the lack of cash tills at the night club’s entrance is of serious concern when it comes to cash handling safety.  The company heard the Complainant’s appeal but nevertheless upheld the demotion.  The Complainant believes the company demoted him unfairly and the decision was not based on lawful grounds.

CA-00027973-003

The Complainant states that in breach of Section 27 of the Organisation of Working Time Act, 1997 in that he did not get a daily rest period. The Complainant stated that he frequently and regularly did not get a rest period. 

The Complainant representative stated the Complainant had a pattern of work and this was the same during the reference period and he outlined how and when he did not get his break as per the Complainant submission.  The Complainant did not get daily or weekly breaks. 

CA-00027973-004

The Complainant states that in breach of Section 27 of the Organisation of Working Time Act, 1997 in that he did not get breaks. The Complainant stated that he did not get breaks in accordance with the Act. The Complainant outlined evidence himself outlining how he could not take breaks during his working time and requirements of the role.  The Respondent acknowledges that email sent by the company referencing taking breaks but not relevant to the Manager.  The Complaint was never asked to sign off or do anything referencing showing he took breaks and often worked alone therefore could not take breaks.

CA-00027973-001

The Complainant was provided with a written Contract of Employment in respect of his position as General Operative. It is accepted that his terms and conditions were not updated in writing following his promotion to Assistant Manager in or around April 2015. However, the Respondent states that the Complainant was at all material times aware that he was fulfilling the role of Assistant Manager, and was remunerated accordingly. The Complainant’s assertion that the absence of updated terms of employment is in some way connected to his demotion is uncorroborated and is entirely disputed by the Respondent. While the Complainant’s duties and responsibilities evolved following his promotion, it is submitted that Section 3 of the 1994 Act does not require the particularisation of same in an employee’s terms of employment. The Complainant has not demonstrated any material detriment suffered by reason of the absence of an updated written statement of his terms of employment. It is further submitted that, by reason of the Complainant’s demotion to General Operative, this complaint is moot. The changes to the Complainant’s terms of employment, following his promotion to Assistant Manager, were to his job title, and his rate of pay.  In the case of A Nurse Officer v. A Public Body (ADJ-00005696), the Adjudication Officer held that the respondent employer had not provided a written statement in accordance with Section 3 of the 1994 Act, and was in continuing breach of that section. However, rather than making a financial award, the respondent was directed to provide the Complainant the required statement within 4 weeks of the decision.

CA-00027973-002

A copy of the Respondent’s Disciplinary Procedure is submitted.  Following internal enquiries by and on behalf of the Respondent, it came to light that over a period of 5 nights, namely the 13.10.18, 20.10.18, 28.10.18; 24.11.18 and 01.12.18, revenue of approximately €3,370.00 was unaccounted for.  The fact that this money is unaccounted for is not in dispute, and the Complainant does not dispute that, by reason of his duties and responsibilities as an Assistant Manager, he was responsible for the cash handling systems the subject matter of the investigation, disciplinary and appeal processes that he now complains of.

An investigation into the matter was conducted by and on behalf of the Respondent, which involved the following:

(a)    a comprehensive review of CCTV footage by the General Manager, and Head of Security, confirming that revenue was unaccounted for;

(b)    Appointment of a third party, Kate O’ Shea Solutions, to conduct the investigation process into the alleged missing revenue.

(c)     Terms of Reference were agreed with the Complainant, and Ms O’ Shea conducted interviews with all relevant parties, including the Complainant who was accompanied by a friend;

(d)    an Investigation Report was compiled and furnished to the Complainant which recommended that the Respondent proceed to the disciplinary process in relation to the Complainant’s under performance of and/or not carrying out his duties as Assistant Manager.

The Respondent invoked the internal disciplinary process, which involved the following:

(a)    The Complainant was invited to and attended a disciplinary hearing on the 15 February, 2019. He was accompanied by a representative from the Independent Workers Union.

(b)    The Complainant was unable to explain the substantial loss of revenue that had been recorded over a period of 5 nights during which was responsible for cash handling

(c)     the Complainant was advised in writing, on the 19 February, 2019, of the decision to demote him, and was advised of the appeal procedure

(d)    the Complainant appealed the aforementioned decision

(e)    an independent party, Head Start HR, who was unconnected to the investigation and disciplinary processes was appointed to conduct the appeal

(f)      an appeal hearing was held on the 8 March, 2019 and the Complainant was again accompanied by a representative from the Independent Workers Union;

(g)    The Complainant was advised in writing, on the 15 March, 2019, that his appeal was unsuccessful.

CA-00027973-003 & CA-00027973-004

The Complainant’s Complaint Form was complete on the 25th April 2019. Insofar as the Complainant’s complaints pursuant to the Organisation of Working Time Act, 1997 are concerned, section 41 (6) of the Workplace Relations Act, 2015 provides that an Adjudication Officer shall not entertain any complaint referred under the section if it has been presented after the expiration of 6 months from the date of contravention.  It is therefore submitted that the relevant complaint period is between the 26 October 2018 and the 25 April 2019. However, as the Complainant has not worked since on or about the 23 December 2018, and is currently on sick leave, the actual period during which alleged breaches, which are not admitted, could have occurred is confined to the period between the 26 October and the 23 December 2018.

The Complainant has failed, refused and/or neglected to either:  particularise the dates on which he claims alleged breaches of the 1997 Act, or file submissions in support of his complaints, and the Respondent is thereby prejudiced in its defence of these complaints.  

Without prejudice to anything hereinbefore or hereinafter submitted, the Respondent asserts that the 1997 Act does not apply to the Complainant in circumstances where he was responsible for determining his own working hours (section 3). As an Assistant Manager, the Complainant was in charge of drawing up and supervising the roster. As such he was in a position to and responsible for (i) the allocation of breaks, including his own, and (ii) the allocation of hours. It is the Respondent’s contention that that Complainant was under a duty, as an Assistant Manager, to ensure that (i) the hours he rostered himself to work, and actually worked, were in compliance with the 1997 Act, and (ii) he took breaks in accordance with the 1997 Act in the course of his work day;

The Respondent had procedures in place to ensure that employees received proper rest periods. As an Assistant Manager, the Complainant was expected to adhere to and ensure compliance with the Respondent’s policy in respect of breaks. For instance: employees, including the Complainant, were advised of their statutory entitlements regarding breaks by e-mail dated the 27 July, 2018 and were also reminded of their duty to clock out during breaks. The Complainant was at all material times aware that the Respondent operated a system whereby staff could inform a supervisor of a missed break by filling out a Missed Break Form, following which an alternative break would be assigned. The Respondent was never advised by the Complainant that he was unable to or prevented from take breaks, and accordingly the Respondent was unaware of any difficulty in this regard.

The Respondent is prejudiced in its defence of these complaints, as the Complainant has failed, refused and/or neglected to provide particulars of the alleged breaches, and the Respondent has therefore been denied a reasonable opportunity to investigate these complaints.

Insofar as there may have been a technical breach/ breaches of the 1997 Act, which are not admitted, it is submitted that same were occasioned as a result of the Complainant’s own failure, refusal and/or neglect to take breaks.

Alternatively, the Complainant availed of breaks during the working day for which he did not clock out. It is further submitted that, if there were technical breaches of the 1997 Act, which are not admitted, the Complainant did not sustain any financial loss as he was paid an hourly rate and was therefore paid for every hour actually worked.  In the case of Petrogas Group Ltd v. Paulauskas DWT 1676 the Court had regard to the fact that the complainant was responsible for scheduling breaks and was responsible and in a position to schedule his own breaks as and when appropriate. The Court held that the respondent did not ‘require’ the complainant to work in a manner that infringed section 12 of the Act, as he was at all times free to allocate break times to himself and chose not to do so.  In the case of P&J Security Services Ltd v. Marin Chitii DWT 1556 the Court, in dismissing the complainant’s appeal, had regard to inter alia the fact that the complainant had worked for the respondent for 4 years during which he raised no issues regarding access to breaks.

I have considered all information and evidence presented to me in conjunction with legislation and case law reaching the finding. 

CA-00027973-001 Terms and Conditions

Section 3 (1) of The Terms of Employment (Information) Acts 1994–2014 states,

"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 following particulars of the terms of the employee's employment."

Section 3 (4) of The Terms of Employment (Information) Acts 1994–2014 states,

“A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer”.

Section 5 (1) of the act states that

"…..whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6 the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than- (a) 1 month after the change takes effect".

While the general background will be clear from the submissions above, the only question for decision is whether a change in the complainant’s terms of employment was made and not notified to him contrary to Section 7 of the Act. The Complainant confirmed there were changes to his Terms and Conditions of employment and he was aware of them at the time. The Complainant was promoted in late 2014 to an Assistant Manager and he received no updated contract, no clear job specification or procedures referencing cash handlings etc.  The Complainant had a contract for the position of General Operative. The Respondent stated that cash handling procedures are not required to be attached to a contract, however accept his job title and pay did change and he did not get new contract but he did get the role.  The Respondent states that the Complainant suffered no detriment as a result.

I find the fact he already had a contract he was not negatively effected and it is not a requirement to attach a detailed job specification/cash handling procedures to contract.

CA-00027973-002 Industrial Relations

The Complainant alleged that he was demoted unfairly. The Complainant agrees that the investigation, outcome and appeal was all fair. The Complainant states his demotion was unfair and the fact that he was interrogated by the Owner and three Managers was unfair. The Complainants representative stated the Company’s own process was flawed i.e. the click system and CCTV was reviewed to see if more money should have come in and as a result €3,370 that the Company deem to be at a loss as a result.  The Complainant was demoted as a result of this finding, however, the Complainants representative say that he followed the Respondents own process.   The Complainant states he was brought in by the Guards last week reference this incident of missing money and was detained for 5 hours, however, he was only made aware of this last week before the hearing and feels this was a coincidence. The Complainant stated he did nothing wrong and new procedures should be put in place to prevent issue occurring. There is no evidence the Complainant did anything wrong.  The Respondent stated there was no previous system in place that was different to the current one.  They state this was not raised during the investigation process.  This therefore could not be considered by them during the process. The Complainant stated that the process was fair referencing the investigation, outcome and appeal, therefore the Respondent states the decision should stand.  The Respondent states the Complainant never raised issue with system/process prior to this incident occurring and acknowledge that Procedure and Systems have since improved, however, it was the Complainant’s job to improve them.  The Respondent stated that over €3,000+ over 5 nights is not a small amount of money.  It is a significant loss.  It equates to approximately nearly 700 people’s admission fee.  The Respondent stated that the Complainant was demoted but is still employed by the Company but has been absent since February 2109.

The Complainant does have an obligation to exhaust the internal process before taking the matter to an external source.  The Labour Court in Rec INT 1014 stated, “The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”. In relation to the Complaint’s demotion under Section 13 of the Industrial Relations Act, 1969, I find that the complainant’s demotion was appealed internally.  The Complainant has fulfilled that obligation and therefore the Complainant is entitled to have the claim under the Industrial Relations Acts heard and a recommendation issued.  

I find the investigation, outcome and appeal was fair. The issue referencing to the interrogation on 23 December 2018 was unfair. The Investigation, outcome and appeal was fair and it is not for me to decide if the sanction is correct but to consider if that sanction is considered reasonable by any other Respondent. I find given the evidence and oral submission that the sanction was considered reasonable, therefore I make no further recommendation only to uphold the current position.

CA-00027973-003 Daily Rest Breaks

Section 27 of the organisation of working time act, 1997

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

(a) Declare that the complaint was or, as the case may be, was not well founded,

(b) Require the employer to comply with the relevant provision,

(c) require 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 2 years remuneration in respect of the employee's employment,

The Complainant confirmed he was denied daily rest breaks. Records were provided which show start and finish times. Section 41 (6) of the Workplace Relations Act, 2015 provides that an Adjudication Officer shall not entertain any complaint referred under the section if it has been presented after the expiration of 6 months from the date of contravention.  It is therefore submitted that the relevant complaint period is between the 26 October 2018 and the 25 April 2019. The Complainant has not worked since on or about the 23 December 2018 and is currently on sick leave, therefore the actual period during which alleged breaches could have occurred is confined to the period between the 26 October and the 23 December 2018. 

Section 11 of the Act in relevant part states:

• 11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

The Complainant submits that he did not receive an 11 hour break between shifts on several dates during the statutory reference period.

The Adjudicator finds that the Complainant’s evidence was consistent with the weekly timesheets that were presented to it. From the timesheet of 24 October 2018 there is one breach of Monday 29 October, 3 breaches 1, 2 and 4 November, 3 breaches timesheets of 7 November 2018, 3 breaches weekly timesheet of 14 November 2018 etc. No evidence of such compensatory rest was provided, nor did the employee raise any issue regarding same.

CA-00027973-004 Rest Breaks

The Complainant confirmed he was denied daily rest breaks.

The Respondent confirmed the Complainant was not clocking for breaks himself but was very strict with other employees to ensure they took breaks.  They did nothing referring to the fact the Complainant did not clock himself. The Complainant stated he was not relevant to him as part of Management and did not flag this issue to Management.  The Complainant stated he had never seen a missed break form in his entire employment with the company.  This is however referred to in the Complainants contract of employment. The Complainant himself was responsible for assigning his own hours and ensuring breaks were taken as the Assistant Manager.  There was no more senior people over him to take breaks.  The Respondent states he did take breaks. The Complainant provided a roster of his hours worked during that period and it showed he did not get daily breaks. The Respondent stated they had a number of witnesses confirming the Complainant did takes breaks and they also state they have records to confirm his start and finish time but he was not required to clock for breaks.

Section 41 (6) of the Workplace Relations Act, 2015 provides that an Adjudication Officer shall not entertain any complaint referred under the section if it has been presented after the expiration of 6 months from the date of contravention.  It is therefore submitted that the relevant complaint period is between the 26 October 2018 and the 25 April 2019. The Complainant has not worked since on or about the 23 December 2018 and is currently on sick leave, therefore the actual period during which alleged breaches could have occurred is confined to the period between the 26 October and the 23 December 2018. 

Section 12 of the Act states

12.—(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2

The Complainant submits that he was not scheduled breaks as set out in sections 12(1) and (2) above. He submits that he did not receive such breaks.

The Respondent states that he was responsible for scheduling others for their breaks and for scheduling his own during the working day. He was therefore was in a position to take his breaks at his discretion. I accept the evidence of the Respondent which supported this.

The Adjudicator finds that the Respondent is required by Section 25 of the Act to keep records of the Complainant’s hours of work. It has not done so. Accordingly it carries the statutory burden of proving compliance with the Act. At no time did the Complainant raise a complaint that he was not in a position to take breaks and accordingly the Respondent was unaware of any difficulty. Indeed the evidence of the Respondent was that the Complainant regularly took breaks from work and also took other breaks as and when required. The Adjudicator, on the balance of probabilities, finds that the Complainant was responsible for scheduling breaks and was in a position to schedule his own breaks as and when appropriate. Therefore the Adjudicator finds that the Respondent did not “require” the Complainant to work in a manner that infringed section 12(1) or 12(2) of the Act as he was at all times free to allocate break times to himself and I believe did so based on the evidence presented.

Decision:

CA-00027973-001 Terms and Conditions

The claim is not well founded based on the evidence provided.  Section 5 (1) of the act states that an employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than 1 month after the change takes effect. The only change that occurred was a promotion in job title and hourly rate which in no way negatively impacted the employee by not having this in writing as he already had Terms and Conditions in place prior to this. In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded

CA-00027973-002 Industrial Relations

Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below.

13.—(1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

Section 13 (1) and (2) of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute. In accordance with Section 13 of the Act I declare this complaint is not founded based on the evidence presented. I recommend that the Complainant should engage with the Respondent in relation to their offer to facilitate the return to work to a demoted role.

CA-00027973-003 Daily Rest Breaks

In relation to the Complaint not receiving daily rest breaks under Section 27 of the Organisation of Working Time Act, 1997, I make the following decision; the complaint is well founded.  The Adjudicator orders the respondent to pay the complainant compensation in the sum of €400.00 due taking into account the number of breached and frequency of same over the period.

CA-00027973-004 Rest Breaks

In relation to the Complaint not receiving daily rest breaks under section 27 of the Organisation of Working Time Act, 1997, I make the following decision; the complaint is not well founded.