Complainant

Respondent

Anonymised Parties

Bar worker

Publican

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00029075-001

15/06/2019

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

CA-00029075-002

15/06/2019

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

CA-00029075-004

15/06/2019

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

CA-00029075-006

15/06/2019

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

CA-00029075-007

15/06/2019

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

CA-00029075-008

15/06/2019

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

CA-00029075-010

15/06/2019

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

CA-00029075-011

15/06/2019

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

CA-00029075-012

15/06/2019

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

CA-00029075-013

15/06/2019

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

CA-00029075-014

15/06/2019

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

CA-00029075-015

15/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00029075-016

15/06/2019

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

CA-00029075-017

15/06/2019

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

CA-00029075-018

15/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015

CA-00029075-019

15/06/2019

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

CA-00029075-022

15/06/2019

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

CA-00029075-023

15/06/2019

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

CA-00029075-024

15/06/2019

The Complainant was employed as a Bar Worker by the Respondent from 23rd August 2017 until 19th April 2019. The Complainant’s agreed rate of pay was €10 per hour.

The following complaints was withdrawn at the hearing: CA-00029075-016 and CA-00029075-019.

The Complainant submits as follows:

The Complainant’s complaint referral form was received by the WRC on 15th June 2019. In accordance with Section 41 (6) of the Workplace Relations Act 2018, the cognisable period for the herein complaint is six months from the date of the referral of the complaint which gives a cognisable period from 16th December 2018 until 15th June 2019.

The Complainant is seeking to extend the cognisable period to twelve months from 16th June 2018 until 15th June 2019 on the grounds that she was vulnerable, there was a failure by the Respondent to provide the required documentation, there was a reasonable apprehension of retaliation should she have sought to enforce her rights given the existence of claims against the Respondent by other employees. In addition, she had no knowledge of the tax treatment of her wages and this only became apparent from an affidavit sworn in High Court proceedings which commenced after her employment with the Respondent had terminated. Furthermore, the behaviour of the Respondent in insisting that the Complainant visit him in his bedroom to receive payment in cash and without payslips militated against the Complainant querying issues with her payments.

The Complainant relies on the following precedents to support her case: Cementation Skanska v Carroll, DWT 38/2003 and Séamus (James) O’Dwyer v Sword Risk Services Limited DWT1410.

The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was properly on notice of the time, date and location of the adjudication hearing.

The first matter I must decide is if reasonable cause has been shown to empower me to extend the cognisable period for this complaint as requested by the Complainant.

In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

The Complainant has submitted that she did not submit a complaint to the WRC until after her employment had terminated due to a number of reasons including, inter alia, her vulnerability, the failure of the Respondent to provide relevant documentation, the fear of retaliation, her lack of knowledge of the tax treatment of her wages and the behaviour of the Respondent.

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Labour Court has set out the test inCementation Skanska v Carroll, DWT 38/2003 as follows; 

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Therefore, in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay and afford an excuse for the delay.

In this regard, I note the Labour Court Determination in Clint Maguire v P J Personnel Ltd AWD201 where the Labour Court held that:

“The test formulated inCementationSkanska (Formerly Kvaerner Cementation) v Carrolldraws heavily on the decision of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

‘The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.’

It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The Complainant attributed the delay in submitting a complaint to the WRC to a number of factors including a fear of reprisal. However, even though the Complainant submitted that she was afraid that she might be penalised by the Respondent if she submitted a complaint to the WRC, no indication as to the basis of this assertion was provided. The Complainant also attributed the delay to the Respondent’s failure to provide relevant documentation and the tax treatment of her wages. However, she did not show that there was any causal connection between these factors and her delay in submitting a complaint to the WRC.

Accordingly, I find that no reasonable cause was shown to empower me to extend the cognisable period in relation to the herein case and, therefore, I find that the cognisable period is the six month period from 16th December 2018 until 15th June 2019. However, as the Complainant’s employment with the Respondent ended on 19th April 2019, the appropriate cognisable period for the herein complaint is the period from 16th December 2018 until 19th April 2019. I find, therefore, that I do not have the jurisdiction to investigate the complaints which fall outside the cognisable period.

CA-00029075-001   Minimum Wage

The Complainant submits that she was paid a fixed sum per shift irrespective of hours worked.

The Complainant submits that she normally worked two 9.5 hour shifts on Saturday and Sunday plus one 7 hour shift on Friday during the cognisable period. The complainant submits that she was paid €230 per week for a 26 hour week.

On 3rd May 2019, the Complainant’s solicitor wrote to the Respondent seeking a statement of the Complainant’s hourly rate of pay and hours worked for the term of her employment in accordance with the Respondent’s statutory obligations.

CA-00029075-002   Compensation for Working on Sunday

The Complainant submits that she worked 16 Sundays during the cognisable period but did not receive compensation for working on Sundays.

The Complainant submits that she usually worked 9.5 hours on a Sunday.

CA-00029075-004   Payment of Wages    

The Complainant submits that she was not paid in full for all hours worked.

The Complainant submits that she was not paid for her last week of work.

The Complainant submits that she worked four long shifts of 16 hours during Rag Week in February 2019 but was only paid €130 for the long shifts.

CA-00029075-006   Annual Leave entitlement

The Complainant submits that she did not receive any paid annual leave during her employment with the Respondent.

CA-00029075-007   Public Holiday entitlements

The Complainant submits that she did not receive her public holiday entitlements. The Complainant submits that she worked on two public holidays during the cognisable period – New Year’s Day and St Patrick’s Day but that she did not work on Christmas Day or St Stephen’s Day.

CA-00029075-008   Payment in lieu of notice

The Complainant submits that she did not receive any notice of the termination of her employment with the Respondent and that she did not receive the appropriate payment in lieu of notice.

CA-00029075-010   Daily rest period

The Complainant submits that she did not receive all of the daily rest periods to which she was entitled during Rag Week in February 2019.

CA-00029075-011   Breaks

The Complainant submits that she did not get breaks when she worked her regular shifts.

CA-00029075-012   Annual Leave entitlement

The Complainant submits that she did not receive any paid annual leave during her employment with the Respondent.

CA-00029075-013   Public Holiday entitlements

The Complainant submits that she did not receive her public holiday entitlements.

CA-00029075-014   Terms and Conditions of Employment – Written Statement

The Complainant submits that she did not receive a statement in writing of her terms and conditions.

CA-00029075-015   Terms and conditions of Employment – Notification of Changes

The Complainant stated that the Respondent unilaterally changed her terms and conditions of employment in or about February 2019 without any notice in writing or otherwise when her earnings were unilaterally reduced by the Respondent following the introduction of a new payroll system.

CA-00029075-017   Unfair Dismissal

The Complainant submits that she was unfairly dismissed by the Respondent when her employment was terminated on 19th April 2019 without any consultation or notice. The Complainant submits that she received an email from the Respondent’s accountant informing her of the termination of her employment even though she was on the roster for the week in question.

The Complainant submitted that, prior to the termination of her employment, the Respondent had not given her any indication that there was an issue with her performance.

The Complainant submits that she has not found alternative employment.

CA-00029075-018   Industrial Relations Issues

The Worker submits that the Employer would not pay her her wages unless she went to his bedroom to collect them. She said that the Employer would be in bed where he would proceed to urinate in a bottle in the presence of the Worker. This caused the Worker a great deal of distress and discomfort.

CA-00029075-022  Minimum Notice

The Complainant submits that she did not receive her statutory minimum period of notice on the termination of her employment or payment in lieu thereof.

CA-00029075-023   Minimum Notice

The Complainant submits that she did not receive all her rights during the period of notice.

CA-00029075-024   Minimum Notice

The Complainant submits that she did not receive minimum notice of termination of the contract of employment from the Respondent.

The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was properly on notice of the time, date and location of the adjudication hearing.

CA-00029075-001   Minimum Wage

The complaint under the Minimum Wage Act, 2000 can only relate to a reference period or reference periods, for the purposes of that Act, in respect of which the Complainant requested a statement or statements pursuant to section 23 of the Act.

I am satisfied that the Complainant’s solicitor sought a statement from the Respondent pursuant to section 23 of the Act and that no such statement was received from the Respondent within the four week time limit provided for under the Act.

The cognisable period for this complaint is 16th December 2018 until 19th April 2019.   From 1st January 2018 until 31st December 2018 the national minimum wage was set at €9.55 per hour. On 1st January 2019, the National Minimum Wage was increased to €9.80 per hour.

In light of the non-participation of the Respondent in the adjudication hearing, and the consequent absence of attendance records, it is not possible for me to ascertain the exact hours worked by the Complainant during the cognisable period. I am of the view that the Complainant was a credible witness and I accept her submission.

In the absence of any records, it is not possible for me to establish if the payment per shift was gross or net.   The Complainant was not fully aware of her tax treatment by the Respondent as she did not receive any payslips or any other relevant documentation for the duration of her employment with the Respondent. For the purposes of my calculations, I am treating the payment per shift as a gross amount. Any tax liabilities arising are to be addressed by the parties.

I find that the Complainant worked for two weeks in 2018 which gives a total of 52 hours for which she was paid €460. This is gives an hourly rate of €8.85 (€460/ 52 hours). In line with the national minimum wage rate in effect at the time, the Complainant was underpaid by €0.70 per hour or €36.40 (€0.70 * 52 hours) for the two weeks in 2018.

I find that the Complainant worked for 16 weeks in 2019 which gives a total of 416 hours @ 8.85 per hour (based on my calculations above for the 2 week period in 2018). In line with the national minimum wage rate in effect at the time, the Complainant was underpaid by €0.95 per hour or €395.20 (€0.95 * 416 hours) for the 16 weeks in 2019.

CA-00029075-002   Compensation for Working on Sunday

Section 14(1) of the Organisation of Working Time Act, 1997 provides that:

“An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

( a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances …”

Section 25(1) of the Act requires employers to keep records to show compliance with Section 12 as follows:

“An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.”

The Complainant asserted that she worked 16 Sundays during the cognisable period. As the Respondent did not attend the adjudication hearing, no records were presented to me to contradict the Complainant’s assertion. I am of the view that the Complainant was a credible witness and I accept her submission.

The Complainant worked 9.5 hours on a Sunday which gives a total of 152 hours @ an agreed rate of €10 per hour.

I find it fair and reasonable that the Complainant should have received a premium of time plus one third for working on Sundays.   Based on 152 hours @ €10 per hour the Sunday premium would be €506 ((152 * €10)/3).

CA-00029075-004   Payment of Wages  

Section 5(1) of the Payment of Wages Act prohibits an employer from making a deduction from the wages of an employee unless certain conditions are fulfilled. Section 5(6) provides that the non-payment of wages which are properly payable to an employee by an employer shall be treated as a deduction unless it was due to a computational error. I have included the relevant sections of the Act below.

Section 5 (1) of the Payment of Wages Act, 1991 provides that –

“An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5(6) of the Act provides that where –

“(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employerfrom the wages of the employee on the occasion.”

The Complainant has submitted a number of complaints under this heading.

The first element of her complaint relates to not being paid in full for her normal hours. The subject matter of this complaint has been addressed under CA-00029075-001 above. Accordingly, I find that this element of the complaint is a duplicate of CA-00029075-001 above and, therefore, is not well founded.

The second element of her complaint is that she was not paid for her last week of work. Based on the uncontested evidence of the Complainant, I find that this complaint is well founded. The Complainant normally worked 26 hours per week and she should have been paid €10 per hour giving a total weekly payment of €260.

The third element of her complaint is that she was not paid for all hours worked during Rag Week 2019.   Based on her uncontested evidence, I find that the Complainant worked 64 hours during Rag Week 2019. She was paid a total of €520 (€130 * 4) whereas she should have been paid a total of €640 (64 hours @ €10 per hour) giving a non-payment of €120.  

CA-00029075-006 Annual Leave entitlement

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

a)      4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

b)      one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

c)       8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

As the Respondent did not attend the adjudication hearing, no records were presented to me to contradict the Complainant’s assertion. I am of the view that the Complainant was a credible witness and I accept her submission.

I find that the Complainant worked a total of 18 weeks during the cognisable period. She worked 26 hours per week which gives a total of 468 hours. She also worked an extra 38 hours during Rag Week 2019 which gives a grand total of 506 hours worked during the cognisable period.

I find that the Complainant worked a total of 506 hours during the cognisable period and that 8% of the hours worked by the Complainant gives a holiday entitlement of 40.48 hours.

CA-00029075-007   Public Holiday entitlements

The Complainant submits that she worked on two public holidays during the cognisable period – New Year’s Day and St Patrick’s Day. The Complainant stated that she did not receive Public Holiday entitlements in line with the provisions of the legislation. Section 25 of the Organisation of Working Time Act requires an employer to keep a record of the working time of its employees. As the Respondent did not attend the adjudication hearing, it was not possible to access the relevant information. I am of the view that the Complainant was a credible witness and I accept her submission.

In the absence of working time records from the Respondent, I find that the Complainant did not receive the appropriate public holiday entitlement for working on two public holidays during the cognisable period.

Section 21 of the Organisation of Working Time Act, 1997 provides that if a part-time employee has worked for their employer for at least 40 hours in the 5 weeks ending on the day before the public holiday and the employee is required to work that day, they are entitled to an additional day's pay for the public holiday.

Where the rate of pay varies in relation to the work done, reg 5(1) of the Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 provides that pay for a public holiday is equivalent to the average daily earnings for normal working hours calculated by reference to the earnings over the 13 week period ending on the day before the public holiday.

In the absence of working time records, I find, based on the Complainant’s uncontested submission, that in any 13 week period during her employment with the Respondent, the Complainant worked 26 hours per week giving a total of 338 hours worked. To calculate the average number of hours worked per day in a 13 week period I have divided the total number of hours worked of 338 by the total number of days worked of 39 (13 weeks * 3 days per week) which gives an average day of 8.66 hours. At an hourly rate of €10 this gives average daily earnings of €86.60 per day.

There were two additional public holiday during the cognisable period on which the Complainant asserted that she did not work – Christmas Day and St Stephen’s Day.

As the Respondent did not attend the adjudication hearing, no records were presented to me to contradict the Complainant’s assertion. I am of the view that the Complainant was a credible witness and I accept her submission.

Pursuant to the Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997, in cases where the employee does not work on the public holiday, they should receive one-fifth of their weekly pay as compensation for the public holiday. Weekly pay is calculated over the period of 13 weeks ending immediately before that public holiday.

From my calculations above, I find that the Complainant worked an average week of 26 hours. At an hourly rate of €10 this gives an average weekly rate of €260.   One fifth of the weekly rate is €52.

CA-00029075-008   Payment in lieu of notice

The subject matter of this complaint has been addressed under CA-00029075-022 below. Accordingly, I find that this complaint is a duplicate of CA-00029075-022 below and, therefore, is not well founded.

CA-00029075-010   Daily rest period

Section 11 of the Organisation of Working Time Act 1997 provides that:

“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”.

As the Respondent did not attend the adjudication hearing, no records were presented to me to contradict the Complainant’s assertion. I am of the view that the Complainant was a credible witness and I accept her submission.

CA-00029075-011   Breaks

Section 12 of the Organisation of Working Time Act places a statutory obligation on employers to ensure that an employee is granted breaks as follows:

(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).

As the Respondent did not attend the adjudication hearing, no records were presented to me to contradict the Complainant’s assertion. I am of the view that the Complainant was a credible witness and I accept her submission.

CA-00029075-012   Annual Leave entitlement

The subject matter of this complaint has been addressed under CA-00029075-006 above. Accordingly, I find that this complaint is a duplicate of CA-00029075-006 above and, therefore, is not well founded.

CA-00029075-013   Public Holiday entitlements

The subject matter of this complaint has been addressed under CA-00029075-007 above. Accordingly, I find that this complaint is a duplicate of CA-00029075-007 above and, therefore, is not well founded.

CA-00029075-014   Terms and Conditions of Employment – Written Statement

Section 3(1) of the Terms of Employment (Information)Act, 1994 stipulates that “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…”

Based on the uncontested evidence of the Complainant, I find that the Complainant was not provided with a written statement of Terms and Conditions of Employment as per Section 3 of the Act. I find that the Respondent has breached Section 3 of the Act.

CA-00029075-015   Terms and conditions of Employment – Notification of Changes

Section 5(1) of the Terms of Employment (Information) Act, 1994 stipulates that “whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4or 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, “

Based on the uncontested evidence of the Complainant, I find that the Complainant did not receive any written notification of the changes to her pay as a result of changes to the payroll system which occurred in February 2019.

CA-00029075-017   Unfair Dismissal

Pursuant to Section 6(1) of the Unfair Dismissals Act 1977, “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

It follows, therefore, that in an unfair dismissal complaint the burden of proof rests with the employer to demonstrate the dismissal was neither substantively nor procedurally unfair.

However, as the Respondent did not attend the hearing, I find there is an onus on the Complainant, as was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland[1963] A.C. 386, to adduce evidence which is sufficient to “suggest a reasonable possibility” that the events complained of occurred.

The Complainant said that she was surprised to receive an email from the Respondent’s accountants informing her that her employment with the Respondent was being terminated as she had never received any indication from the Respondent that there were issues with her performance or that redundancy was being contemplated.

I am of the view that the Complainant is a credible witness and I accept that there is a reasonable possibility that the Complainant was unfairly dismissed by the Respondent.

The Labour Court have consistently found that an employer is required to follow fair procedures before it makes a decision to dismiss an employee. The manner in which the Respondent in this case dealt with the matter left much to be desired. I am satisfied that the Respondent’s handling of the entire matter clearly breached the Complainant’s right to fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000.

I find, therefore, that this complaint is well founded.

Section of the Unfair Dismissals Act 1977 – 2015 stipulates that where a complaint succeeds, redress may be awarded up to a maximum of 104 weeks’ remuneration, based on the financial loss suffered following the termination of employment.

“ (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: …

… (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances.”

In calculating the level of compensation I took into consideration the efforts of the Complainant to mitigate her losses and I find that her efforts do not meet the standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

CA-00029075-018   Industrial Relations Issues

In Industrial Relations cases, the Labour Court has repeatedly emphasised the requirement for workers to exhaust local procedures before referring a dispute to an external body. In this instance, however, there were no local procedures in place and the impugned behaviour was carried out by the Employer. I find, therefore, that it was not possible for the Worker to exhaust local procedures.

Based on the uncontested case put forward by the Worker, I find that the behaviour of the Employer was abhorrent in the extreme and an affront to the Worker’s dignity and wellbeing.

I find that this complaint is well founded.

CA-00029075-022  Minimum Notice

Based on the uncontested evidence of the Complainant, I find that this complainant is well founded. In accordance with section 4(2)(a) of the Minimum Notice and Terms of Employment Act, 1973, I find that the Complainant is entitled to one week’s notice pay.

CA-00029075-023   Minimum Notice

The subject matter of this complaint has been addressed under CA-00029075-022 above. Accordingly, I find that this complaint is a duplicate of CA-00029075-022 above and, therefore, is not well founded.

CA-00029075-024   Minimum Notice

The subject matter of this complaint has been addressed under CA-00029075-022 above. Accordingly, I find that this complaint is a duplicate of CA-00029075-022 above and, therefore, is not well founded.

CA-00029075-001   Minimum Wage

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded and I require the Respondent to pay the Complainant redress of €431.60.

CA-00029075-002   Compensation for Working on Sunday

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded. I direct the Respondent to pay the Complainant €506 in respect of outstanding Sunday premium payments.

CA-00029075-004   Payment of Wages    

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded in part and I direct the Respondent to pay the Complainant redress of €380.

CA-00029075-006   Annual Leave entitlement

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded. I direct the Respondent to pay the Complainant €404.80 for the economic loss in respect of the annual leave entitlement. I also require the Respondent to pay the Complainant an additional €400 in compensation for breach of her rights under Section 19 of the Act.

CA-00029075-007   Public Holiday entitlements

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded.

I direct the Respondent to pay the Complainant redress of €173.20 in respect of the public holiday entitlement for New Year’s Day and St Patrick’s Day 2019. I also direct the Respondent to pay the Complainant redress of €102 in respect of her other public holiday entitlements during the cognisable period.

Furthermore, the Respondent is directed to pay the Complainant an additional €250 in compensation in respect of the infringement of her employment rights.

CA-00029075-008   Payment in lieu of notice

I find that this complaint is not well founded.

CA-00029075-010   Daily rest period

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded and I direct the Respondent to pay the Complainant compensation of €150.

CA-00029075-011   Breaks

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded and I direct the Respondent to pay the Complainant compensation of €300.

CA-00029075-012   Annual Leave entitlement

I find that this complaint is not well founded.

CA-00029075-013   Public Holiday entitlements

I find that this complaint is not well founded.

CA-00029075-014 Terms and Conditions of Employment – Written Statement

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €1,040 in respect of the contravention being the equivalent of approximately four weeks’ pay, the maximum permitted under the Act, which I consider to be fair and reasonable in all the circumstances of the complaint.

CA-00029075-015   Terms and conditions of Employment – Notification of Changes

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €520 which I consider to be fair and reasonable in all the circumstances of the complaint.

CA-00029075-017 Unfair Dismissal

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded and that the Complainant was unfairly dismissed. I direct the Respondent to pay the Complainant redress of €1,000.

CA-00029075-018   Industrial Relations Issues

Based on the uncontested case put forward by the Worker, I find that this complaint is well founded and I recommend that the Employer pays the Worker compensation of €1,000.

CA-00029075-022   Minimum Notice

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded. In accordance with section 4(2)(a) of the Minimum Notice and Terms of Employment Act, 1973, I direct the Respondent to pay the Complainant €260.

CA-00029075-023   Minimum Notice

I find that this complaint is not well founded

CA-00029075-024   Minimum Notice

I find that this complaint is not well founded.

Multiple complaints – Employment Rights, Industrial Relations and Unfair Dismissal