Complainant

Respondent

Anonymised Parties

A Bar Manager

A Public House

Representatives

Alastair Purdy & Co. Solicitors

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-00027793-001

16/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00027793-002

16/04/2019

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

CA-00027793-003

16/04/2019

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

CA-00027793-004

16/04/2019

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

CA-00027793-005

16/04/2019

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

CA-00027793-006

16/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00027934-001

24/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00030374-001

13/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00030374-002

13/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00030374-003

13/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00030374-004

13/08/2019

The complainant was employed by the respondent from July 2005 until her summary dismissal on or about 15th April 2019. The complainant worked 40 hours per week and was paid €400 net per week.

The complaints were submitted to the WRC on 16th April 2019 and 24th April 2019 and refer to alleged breaches of the Organisation of Working Time Act, 1997, the Payment of Wages Act, 1991, the Terms of Employment (Information) Act, 1994 and the Unfair Dismissals Act, 1977.

Additional complaints were referred to the Workplace Relations Commission (WRC) on 24th May 2019 and relate to breaches of the Organisation of Working Time Act, 1997 and the Payment of Wages Act, 1991 (ADJ 000-21833 refers).

Complaints submitted on 13th August 2019 in accordance with the European Communities (Protection of Employees) on Transfer of Undertakings Regulations, 2003 were withdrawn in correspondence submitted after the adjudication hearing had concluded.

The complainant outlined that the complaints were submitted to the WRC prior to the respondent entering into Liquidation. In those circumstances the complainant’s representative stated that the complainant is a secured creditor for the purposes of receiving outstanding entitlements from the Social Insurance Fund.  

There was no attendance by or on behalf of the respondent at the adjudication hearing.

CA-00027793-001 - Organisation of Working Time Act, 1997 – Sunday premium

The complainant stated that she never received a Sunday Premium while employed by the respondent. The complainant stated that she worked one Sunday every four to six weeks but was paid only a flat rate hourly of pay. The complainant stated that shifts on Sundays were from 12pm to 7.30pm or from 7.30pm-Finish.

CA-00027793-002 – Payment of Wages Act, 1991 – Unlawful deduction

The complainant stated that the respondent unlawfully deducted €150 from her Salary on or about the 1st Mach 2019 and continued with this deduction on a weekly basis from that point onwards until her dismissal in April 2019. The complainant outlined that the deductions arose as a result of a new payroll system being put in place by the respondent in and around February 2019. The complainant stated that she had an agreement in place with the respondent in relation to receiving a net payment of €80 at the end of each shift. The complainant stated that after the new payroll system was put in place her previous net payment became a gross figure and she was subsequently at a total loss of approximately €900 for the period in question.

CA-00027793-003 - Organisation of Working Time Act, 1997 (Public Holidays – Hours)

The complainant stated that she was not provided with the appropriate Public Holiday entitlements in accordance with Section 21 of the Organisation of Working Time Act, 1997. The complainant is seeking compensation in relation to her complaint.

CA-00027793-004 - Organisation of Working Time Act, 1997 (Public Holidays – Pay)

This complaint relates the complainant not receiving Public Holiday entitlements for the duration of her employment with the respondent. The complainant is seeking compensation in that regard.

CA-00027793-005 - Terms of Employment and (Information) Act, 1994 – Written statement

The complainant stated that she did not receive a written statement of her terms and conditions of employment as is required under Section 3 of the Terms of Employment (Information) Act, 1994.

CA-00027793-006 - Terms of Employment and (Information) Act, 1994 – Notification of changes

The complainant stated that she did not receive written notification of the changes to her terms and conditions of employment when her earnings were unilaterally reduced by the respondent from February 2019 onwards following the introduction of a new payroll system.

The respondent did not attend the adjudication hearing and was not represented.

Cognisable period of the complaints

The complaints relating to alleged breaches of the Organisation of Working Time Act, 1997 and the Payment of Wages Act, 1991 were submitted to the WRC on 16th April 2019. The cognisable period of the complaints is 17th October 2018 – 16th April 2019. Decisions on each complaint are made in accordance with the time limits prescribed under Section 41(6) of the Workplace Relations Act, 2015.

CA-00027793-001 - Organisation of Working Time Act, 1997 – Sunday premium

Having worked one Sunday every 4 – 6 weeks, the complainant would have worked approximately 5 Sundays in the cognisable period of the complaint. The complainant stated that a shift on a Sunday was approximately 7 hours long. Having considered the matter, I find that the complainant should have been paid a premium of time plus one third for Sunday work. On the basis of the complainant’s evidence, she worked approximately 35 hours on Sundays and was paid only at a flat rate of €10 per hour. Accordingly, the outstanding Sunday premium due to the complainant is €115.50.

CA-00027793-002 – Payment of Wages Act, 1991 – Unlawful Deduction

The complainant’s net salary was reduced as a result of a new payroll system that was introduced by the respondent. The complainant stated that she had agreed a net payment of €80 per eight-hour shift and this was established over a number of years. I accept the complainant’s position that she questioned the unilateral reduction in her take home pay and that not accepting the pay reduction ultimately led to her being summarily dismissed from her employment. In all of the circumstances of this complaint, I find that if the respondent agreed a net figure per shift as confirmed in evidence by the complainant, the responsibility for taxation and other deductions rested with the employer. I find that the respondent was not entitled to unilaterally reduce the complainant’s net earnings and in my view the deduction of €150 per week for a period of six weeks amounted to an unlawful deduction of €900.

However, I do not find that the remaining €358 per week for five weeks (€1,790) which the complainant refused to accept was an unlawful deduction within the meaning of the legislation. Accordingly, I find that the complaint is well founded only in part.

CA-00027793-003 - Organisation of Working Time Act, 1997 – (Public Holidays Hours)

Within the cognisable period of the complaint (17th October 2018-16th April 2019) there were five Public Holidays; 29th October 2018, 25th and 26th December 2018, 1st January 2019 and 17th March 2019. Section 25 of the Organisation of Working Time Act, 1997 requires the employer to retain working time records. As the employer did not attend the adjudication hearing it was not possible to obtain the relevant information from the respondent. The complainant was unable to provide any records or payslips in relation to whether she worked the five days in question or not but asserts that either way, she never received any Public Holiday entitlement. From considering the entirety of the complaints and the available evidence, I find that the complainant gave an honest and credible account of her conditions of employment while employed by the respondent. Accordingly, I find, on balance that in relation to Public Holidays the complaint is well founded.

CA-00027793-004 - Organisation of Working Time Act, 1997 – (Public Holidays Pay)

The complainant’s entitlement to Public Holidays for the cognisable period of the complaint has been addressed in complaint application CA-00027793-003 above. This complaint relates to Public Holiday entitlements outside of the six-month time period permitted by the legislation. Accordingly, I find that the complaint is statue barred.

CA-00027793-005 – Terms of Employment and (Information) Act, 1994 – Written statement

I accept the complainant’s evidence that she never received a written statement of her terms and conditions of employment in accordance with Section 3 of the Terms of Employment (Information) Act, 1994.

CA-00027793-006 - Terms of Employment and (Information) Act, 1994 – Notification of changes.

I accept the complainant’s evidence that she did not receive any written notification of the changes to her terms and conditions of employment in accordance with Section 5 of the Terms of Employment Act, 1994 following the changes introduced to the payroll system which occurred in March 2019.

CA-00027793-001 - Organisation of Working Time Act, 1997 – Sunday premium

The complaint is well founded. The respondent is directed to pay the complainant €115.50 in respect of outstanding Sunday premium payments.

CA-00027793-002 – Payment of Wages Act, 1991 – Unlawful deductions

The complaint is well founded. The respondent is directed to pay the complainant €900 in respect of unlawful deductions in contravention of the legislation.

CA-00027793-003 - Organisation of Working Time Act, 1997 (Public Holiday Hours)

The complaint is well founded. The respondent is directed to pay the complainant €500 in respect of the value of outstanding Public Holiday entitlements and a further €500 compensation in respect of the infringement of her employment rights.

CA-00027793-004 - Organisation of Working Time Act, 1997 – (Public Holidays Pay)

I find that this complaint is out of time and is therefore statute barred.

CA-00027793-005 – Terms of Employment and (Information) Act, 1994 – Written statement

The complaint is well founded. The respondent is directed to pay the complainant €1,000 in compensation which I consider to be fair and reasonable in all of the circumstances of the complaint.

CA-00027793-006 - Terms of Employment and (Information) Act, 1994 – Notification of changes

The complaint is well founded. The respondent is directed to pay the complainant €500 in compensation which I consider to be fair and reasonable in all of the circumstances of the complaint.

The complainant outlined that she was summarily dismissed by the respondent on or about 18th April 2019. The circumstances leading the complainant’s dismissal concern the introduction of a new payroll system following the appointment of new Accountants in February 2019. The complainant stated that an agreement existed with the respondent whereby she would receive a net payment of €80 per shift and would be paid at the end of each shift by the respondent.

The complainant stated that from the first week in March 2019 the net payment of €80 per shift became a gross figure and the complainant was subsequently at a loss of approximately €150 per week. The complainant stated that, as a result of the previous agreement with the respondent, she did not accept this reduction in her earnings and was not paid for a number of weeks leading to her dismissal on 18th April 2019.

The complainant stated that on 18th April 2019 she again protested to her employer concerning the unilateral reduction in her earnings. The complainant contends that the respondent dismissed her on this date and screamed at her to “get out.” The complainant stated in evidence that she asked if she was “fired” and the respondent stated “yes”.

The complainant outlined that the dismissal was in fact a smokescreen so the respondent could avoid providing the complainant with the appropriate redundancy entitlements in circumstances where the Bar in which the complaint was working also closed on the 18th April 2019 before reopening under a new legal entity a short number of days later.

The complaint’s representative contends that the respondent did not act reasonably or adhere to the principles of fair procedures or natural justice in its summary dismissal of the complainant. The complainant’s representatives cited the cases of Hennessy v Read and Write Shop Ltd (UD192/1978) and British Leyland UK Ltd v Swift (1981), Glover v BLN Ltd [1973] IR 388 and Khan v HSE [2009] ELR 178 in support of its position in that regard.

The respondent did not attend the adjudication hearing and was not represented.

The respondent’s non-attendance at adjudication

The respondent submitted an unsigned, undated document to the WRC in response to the complainant’s complaints. However, the contents of the document were somewhat unclear and as the respondent did not attend the adjudication hearing, I was not in a position to clarify certain aspects of its document. The respondent also had the benefit of legal advice and a Liquidator had also been appointed on 29th July 2019, yet neither the respondent, its Solicitor nor a representative from the Liquidator attended the adjudication hearing to participate in the process.

Band of reasonable responses.

As to whether there were substantial grounds for the Complainant’s summary dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

 “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

Based on the direct evidence of the complainant, I am satisfied that the respondent did not act reasonably, and that the complainant was dismissed in the most unfair manner without having the principles or fair procedures or natural justice applied to her. I also note the efforts that the complainant has made to mitigate her losses since her dismissal and note that having secured a part time position at a lower rate of pay, the complainant continues to incur a loss of approximately €140 per week. I have taken this into account in assessing the appropriate level of compensation.

Having considered the written and verbal submissions to this complaint, I am satisfied that the complaint of unfair dismissal is well founded. The respondent is directed to pay the complainant €10,000 in compensation.

Unfair Dismissal, Public Holiday entitlements, Annual Leave entitlements, Written terms and conditions of employment, Unlawful deductions,