Complainant

Respondent

Anonymised Parties

A Former Worker

A Business

Representatives

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-00028029-001

29/04/2019

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

CA-00028029-002

29/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00028029-003

29/04/2019

The complaint was received by the WRC on the 29th April, 2019. The case was listed for hearing on two previous dates – 19th December, 2019 and 10th February, 2020. A postponement was sought and granted by the WRC on both occasions – at the request of the Respondent in respect of the first scheduled hearing and the Complainant in respect of the second.

The Respondent corresponded with the WRC on the 17th February 2020 in relation to the matter of who correspondence should be addressed to. In its letter the Respondent stated that “Ltd” or “Limited” should be added after the title of the Respondent and also stated that – “Until you correct the title of this matter we are unable to advance it further”. In this regard, I note the Complainant had confirmed on the Complaint Form that the Respondent was a limited company and that the WRC sent the Complaint Form to the Respondent by letter of the 3rd May, 2019.

The parties were notified by letter from the WRC of the 6th February, 2020 of the reconvened adjudication hearing scheduled for the 2nd March, 2020. I waited for ten minutes at the commencement of the re-convened hearing to see if the Respondent would attend. I then proceeded with the hearing as scheduled and the Respondent did not attend.

The Complainant has brought three complaints against his former employer/the Respondent pursuant to the Terms of Employment (Information) Act [1994-2019], the Organisation of Working Time Act [1997-2019] and the Industrial Relations Act [1969-2015]. The Respondent’s business consisted of a coffee shop. The Complainant also referred to the conduct of the Respondent’s partner who was the Complainant’s landlord and according to the Complainant, owned or managed an adjacent B&B.

CA-00028029-001

The Complainant stated that he commenced employment with the Respondent on the 2nd August 2018. He stated that despite asking “at least 3-4 times”, he never received a written statement of his terms and conditions of employment from the Respondent or any written contract. The Complainant stated that initially he verbally requested copy of his contract. Thereafter, he sent an email to the Respondent on the 26th March 2019 stating – “May I get contract please? I’ll need it very soon, thanks….”. He sent a text message to the Respondent on the 11th April, 2019 stating that he had asked for the contract three months previously. Copy of the email and text message were furnished at the adjudication hearing. The Complainant outlined that the lack of clarity around his rosters and duties was an on-going difficulty for him and that whilst his work was in the coffee shop, he was also assigned various tasks in the B&B.

CA-00028029-002

The Complainant stated that he worked 20 – 30 hours/week. He stated that he was hoping to eventually get full time hours. The Complainant stated that he had no roster and was only texted on the day before about his hours of work on any particular day.

The Complainant stated that Sunday was the best day for business in the coffee shop. He stated that he worked at least eight hours on Sundays, that he would start @9am and finish between 5 – 6pm and that he got no extra pay or recognition for this work. At the adjudication hearing, the Complainant clarified that he was claiming compensation for 15 Sundays which he said he had worked in the previous six months.

The Complainant stated that he was paid the minimum wage, that his gross pay per week was €290 and that his net pay was €250/week. In this regard, the Complainant furnished copy of page 11 of a Working Family Payment Application Form dated 4/2/2019 which was signed by the Respondent. According to this form the Complainant was paid €9.80/hour and worked a minimum of 30 hours/week.

CA-00028029-003

The Complainant stated that he had to leave his job due to the conduct of his employer and others at work and that he was claiming constructive dismissal. In this regard, the Complainant outlined difficulties he had encountered with the Respondent’s partner who was also his landlord. He stated that the Respondent’s partner was coming into his workplace, was interfering with his work, that he shouted at him, humiliated him in front of customers and called him names such as “worthless”, “not able to do anything”, “gutless scum” and “not a man”. The Complainant stated that this caused him to be miserable at work, that he was stressed and that his health and personal life were impacted upon. The Complainant stated that he feared for his safety and that of his family. The Complainant stated that when he saw the Respondent’s partner coming into the coffee shop he started to shake and that his head would be bursting.

At the adjudication hearing the Complainant stated that just before Christmas 2018, whilst in the coffee shop with the Respondent present, the daughter of the Respondent’s partner came in and shouted at him that his rent was due and that he had three days to pay or move out. He stated that the Respondent encouraged him to go out and talk to the daughter. The Complainant stated that a similar incident happened at the end of January, 2019 and that on the 8th March, 2019 his wages were withheld because his rent was due.

The Complainant stated that the Respondent was “disgusted” with him when he said on the 11th April, 2019 that he did not want to work in the Respondent’s partner’s B&B business.

The Complainant stated that at approximately 4.30pm on the 18th April 2019, the Respondent’s partner walked into the coffee shop and that he shouted and threatened the Complainant that he was going to send a man around to his house to put his wife and child on the street and that these were not “nice men”.

It is the Complainant’s position that he was being bullied and intimidated at work, that the Respondent was aware as incidents happened whilst she was there and that he raised his concerns on an-going basis with the Respondent, but to no avail. The Complainant furnished a number of text messages exchanged between him and the Respondent most of which related to routine work matters but one which stated: “Well [Respondent] you should protect me against this bullying at work for the last month or even two…..And one more thing we have to talk about my work situation”.

The Complainant stated that he gave himself to the workplace but that he felt like a slave. He stated that on the 29th April, 2019 when he saw the Respondent’s partner in front of the coffee shop, he quit his job that day because he “couldn’t take it anymore”.

The Complainant also outlined his upset as a result of an incident at his home on the 26th April, 2019 which he stated he reported to An Garda Siochána.

The Respondent did not furnish any written submission in response to the complaints and did not attend the adjudication hearing.

CA-00028029-001

Section 3(1) of the Terms of Employment (Information) Acts [1994-2019] states 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..…particulars of the terms of the employee’s employment”. Section 3(4) of the Terms of Employment (Information) Acts [1994-2019] states that “A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer”.

As the Complainant commenced his employment with the Respondent on the 2nd August 2018, this statement should have been furnished to him on or before the 1st October, 2018. Therefore, the date of contravention arose as and from the 1st October, 2018. In this regard, Section 41(6) of the Workplace Relations Act [2015-2019] states that: “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates”.

The time limitation for pursuing a complaint in respect of Section 3 of the Terms of Employment (Information) Act [1994-2019] was considered in ADJ-00009820. I agree with the reasoning of the Adjudication Officer in the case, that a breach of Section 3 is a subsisting breach and that “If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, ie the last day of their employment”.

On the basis of the foregoing, I decide that this complaint is within time.

In relation to the substantial matter, I have considered the uncontested account of the Complainant that he was not furnished with a statement setting out his terms of employment together with his verbal and documented requests for this - as per his email to the Respondent of the 26th March 2019 and his text message on the 11th April, 2019. I have also considered that Section 3 of the Terms of Employment (Information) Act [1994-2019] places the onus on the Respondent to provide such a statement. Having considered the uncontested evidence in relation to this matter and the account of the Complainant, I decide this complaint is well founded.

CA-00028029-002

Section 14 of the Organisation of Working Time Act [1997-2019] 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 ….”. Sections 14(a) – (d) outline the means by which the employee shall be compensated –

a)      “by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

b)      by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

c)       by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

d)      by a combination of two or more of the means referred to in the preceding paragraphs”

Section 41(6) of the Workplace Relations Act, 2015 provides that an Adjudication Officer shall not entertain a complaint referred under the section if it has been presented after the expiration of 6 months from the date of contravention. Accordingly, the reckonable period for the purpose of this complaint was between the 30th October 2018 and the 29th April, 2019 being the date the complaint was received by the WRC. The Complainant is claiming compensation for 15 Sundays which he claimed he worked during this six month period. Having considered the uncontested evidence in relation to this matter and the account of the Complainant, I decide this complaint is well founded.

CA-00028029-003

Section 13 of the Industrial Relations Act [1969-2015] states as follows:

“(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 an [Adjudication Officer].

(3) (a) Subject to the provisions of this section, an [Adjudication Officer] 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….”

The Complainant was employed on the 2nd August, 2018 and has outlined that he couldn’t take it anymore and therefore quit his job on the 29th April, 2019. In cases of constructive dismissal the behaviour of the employer is central to the Complainant’s case. With that mind and notwithstanding that this complaint is for decision under the Industrial Relations Act [1969-2015], I consider that the definition of constructive dismissal set out at Section 1 of the Unfair Dismissals Act [1977-2017] is useful. It states:

“dismissal, in relation to an employee means –

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract without giving prior notice of the termination to the employer…”

It is clear from this definition that the focus is on whether it was reasonable or not for the Complainant to terminate his employment because of the conduct of the employer. Based on the uncontested oral and written submissions, I am of the view that the Complainant was experiencing a difficult working environment. In my opinion, the Complainant gave a detailed and persuasive account of the difficulties he encountered due to the lack of work rosters and due to the fact that he was on occasions required to work outside the workplace in the adjacent B&B. I am also satisfied that it was not acceptable that the Complainant’s wages were withheld on one occasion due to rent owing to his landlord as this matter was entirely separate to his employment. For the same reason, it was not acceptable that the Complainant was confronted in the workplace about his rent payments.

The Complainant also stated that he was subjected to bullying, humiliation and being undermined in the workplace. In this regard, the Complainant outlined that the Respondent’s partner frequently came into his workplace, shouted at him, called him names, threatened him and interfered with his work. The Complainant’s uncontested evidence is that the Respondent did not address his on-going concerns and he furnished a text message (previously quoted) which he had sent to the Respondent seeking her protection against the workplace bullying. No evidence has been presented to me of any response or of any attempts to address the matter by the Respondent employer.

The Statutory Instrument (SI) No. 17/2002 sets out the Code of Practice Detailing Procedures for Addressing Bullying in the Workplace. The Code defines workplace bullying as:

“…..repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work…”

SI 17/2002 sets out guidance for employers as to how to address allegations of workplace bullying ranging from informal to formal procedures. Consequently, employers should address complaints of bullying and take appropriate steps to deal with such situations.

The Supreme Court considered the matter of workplace bullying in the case of Una Ruffley V The Board of Management of Saint Anne’s School [2017] IESC 33. Although this was a personal injury action, in their judgements Charleton J. and O’Donnell J. provided some useful clarification on the characteristics of bullying and inappropriate conduct in the workplace.   In this regard, Charleton J. stated that:

“With regard to forming the elements of a tort of wrongful conduct that embraces workplace bullying, the common law in Ireland has not developed through judicial decision according to necessity and justice but instead has been subject to an intervention in the shape of section 5 of the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (SI No 17 of 2002)…….bullying is by its nature a repeated activity…. behaviour completely beyond the tolerable, that undermines dignity at work, and which is repeated so that it forms a pattern which genuinely undermines a person’s ability to come to work and serve in his or her position”

In distinguishing conduct which could amount to bullying or inappropriate behaviour from a workplace disciplinary matter, O’Donnell   J. set out the following:

“Inappropriate behaviour does not necessarily need to be unlawful, erroneous or a procedure liable to be quashed or otherwise wrong in law: it is instead behaviour which is inappropriate at a human level. The test looks to the question of propriety in human relations, rather than legality. Again, the more familiar examples of bullying illustrate this. Purposely undermining an individual, targeting them for special negative treatment, the manipulation of their reputation, social exclusion or isolation, intimidation, aggressive or obscene behaviour, jokes which are obviously offensive to one person, intrusion by pestering, spying and stalking—these examples all share the feature that they are unacceptable at the level of human interaction. That in turn is consistent with the concept of human dignity being protected”

Having regard to all of the foregoing and the uncontested evidence of the Complainant, I am satisfied that he was subjected to unreasonable and inappropriate conduct in the workplace including being shouted at, name-called and challenged on a repeated basis about a non-workplace matter, namely his rent and that his wages were also withheld because of rent. I am also of the view   that the Respondent employer did not take steps to address and resolve the Complainant’s concerns. I therefore conclude this complaint has merit.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00028029-001

I find that the complaint made pursuant to the Terms of Employment (Information) Act [1994-2019] is well founded and therefore the Respondent shall pay the Complainant redress of €1,160 based on four weeks gross remuneration subject to tax and any necessary statutory deductions.

CA-00028029-002

I find that the complaint made pursuant to the Organisation of Working Time Act [1997-2019] is well founded and therefore the Respondent shall pay the Complainant redress of €750 which I consider reasonable having regard to all the circumstances.

Section 13 of the Industrial Relations Act [1969-2015] requires that I make a recommendation in relation to the dispute.

CA-00028029-003

Based on the considerations outlined above, I recommend that the Respondent pay the Complainant €2,900 based on ten weeks gross remuneration subject to tax and any necessary statutory deductions.

Statement of Terms of Employment, Sunday Premium, Constructive Dismissal