Complainant

Respondent

Anonymised Parties

Bar worker

Bar owner

Representatives

Self

Self

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-00029672-001

14/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00029672-002

14/07/2019

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

CA-00030159-001

11/08/2019

The hearing was concerned with claims made by the bar worker, a former employee, that he did not receive a statement of his terms and conditions of employment; that he was unlawfully employed on a zero hours contract; that he was treated less favourably than a comparable full-time employee. The complainant lodged a second complaint for underpayment of holiday pay.

The complainant was employed in the respondent’s employment from October 2018 working two days per week. He gave as his hours of work averaging 12-14 per week on one part of the complaint form and 11 on another part. The variation appears to relate to the time of the year with hours increasing on the shifts in the summer months. He was employed to provide cover for the full-time employee. On 29th and 30th of May and again on 5th and 6th of June he says he noticed that he was not on the roster. When he asked why-he was informed by the respondent that another person was employed for training for those days-to be able to provide cover for the full-time employee during August. As a result, he was forced to request holiday pay, or he would have no wages and he pointed this out to the respondent in a text. He resumed work and again in July, for 15th and 16th he saw that his hours were zeroed down again. As far as he was concerned he was being laid off and given no minimum hours because he was part time and the full-time employee was not treated the same. On June 17th he sent a text to the respondent ‘ Can I get some sort of minimum hour contract to ensure me ofsome hours every week.’ On his first complaint form, the complainant stated that he had not received a statement of terms of employment, when he requested one he was ignored, and his hours were still cut to zero out of the blue. On 14 July 2019,a complaint form was submitted to the WRC. He made the complaint as he had contacted the Citizens advice centre who informed him that he had certain rights and that employment on a zero hours contract was no longer allowed. At the hearing he stated that following the making of that complaint on July 14th, 2019 he was not rostered again and was not contacted about future hours. The second complaint submitted on August 11th, 2019 contained a complaint of underpayment of holiday pay. On both complaints he referred to having to take holiday pay to compensate for not receiving any hours of work.

Terms of Employment-Statement. The respondent provided a typed copy of a statement which she had provided to the complainant and which he did not sign. She kept a record in a diary of the dates on which she gave or spoke to all employees about their written statements. In the case of the complainant-the relevant dates were given as 23 October 2018;21 November 2018; 09.01.2019;11.03.2019. On each of these occasions the complainant either received the statement, or the respondent reminded him of the need to sign it and on each occasion, he had a reason why he had not signed and returned the statement. The complaint that the complainant did not receive a statement of his terms of employment and in writing was rejected.

Related to the complaints about hours of work, treatment as a part-time employee and not being rostered while training was provided to another person, the statement of terms described the employee as being in casual employment and he knew that he was employed as and when required to provide cover for the full-time employee. When he asked about not being rostered in June, he was told the reason and paid holiday pay at his request. The complainant had no set days of work and had himself booked holidays in advance for a weekend in early June.

Regarding the roster from July 15th the complainant did not turn up for work and then dropped in to the employment and told another employee that he had started in another place, so he could not work more hours and after that he just disappeared.

Regarding the claim for holiday pay, the respondent presented details of the holiday paid to the complainant to cover 2018 and 2019 and these showed that he had received all holiday pay due to him as follows:

2018: 18.00 hours paid in week 31 2019 so no payment due.

2019: week ending 01.06.2019-Week 22 15 hours paid

2019: week ending 06.06.2019-Week 23 15 hours paid

2019: week ending 22.07.2019-Week 30   2 Hours paid

Total holiday pay for 2019 32 hours therefore no holiday pay due.

Texts were provided showing the exchanges between the two parties regarding hours and holiday pay in June and July.

The Respondent asked that all claims be dismissed ,that all statutory obligations were met; that the complainant was trying to show the respondent in a bad light but there was no case to answer and the evidence before the hearing proves that this is the case.

The issues to be determined in this case flow, in the main, from the terms of employment of the complainant as they relate to his hours of work.

Terms of Employment Information Act 1994-1 September -4 March 2019.

Section 3(1) of the Act requires that a statement of terms of employment be given to an employee within two months of the commencement of employment. Based on the evidence at the hearing, I find that of the respondent the more credible and am satisfied that the complainant did receive a statement of his terms of employment and there is no valid complaint in respect of a failure to comply with section 3(1).

With effect from March 2019, Section 3 1(A) of the Act provides the following obligation on an employer:

‘Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer 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, that is to say:

Subsection (e) of the same subsection requires that the statement shall contain the following information:

the number of hours which the employer reasonably expects the employee to work-

(i)                  per normal day and

(ii)                per normal working week’

Accepting that the respondent did provided a statement of terms and conditions to comply with Section 3(1) of the Act, the following clause in that statement in respect of hours of work does not comply with the requirements of Section 3(1)(A)(e) where it states:

‘Hours of Work

Your working hours are variable. You will be notified in advance. ‘

The terms of the statement issued to the complainant did not comply with the terms of Section 3(1)(A) (e)of the Act as revised. Recognising that the requirement to provide such information, to prevent the use of zero hours contracts such as that given to the complainant was not introduced until March 2019,the complainant did seek a commitment to minimum hours in the text on June 17th     2019 and, the Respondent was notified of his complaint about the absence of such minimum hours by the WRC on 24 July 2019 and did nothing to rectify the matter at either stage. The complainant has a valid complaint of a breach of section 3(1)(A) (e) of the Act as revised in March 2019.

Protection of Employees(Part-Time Work) Act,2001.

Accepting that the respondent gave a statement of terms of employment to the complainant, the following is the term of the statement which defines the status of the complainant for the purposes of this Act:

‘The Company is not obliged to provide work to you and you are not obliged to accept any work offered by the Company. However, the Company will offer you work as and when required. You will be offered work on a ‘casual as required basis’ basis(sic) when the Company’s needs arise.’ All aspects of this contract must be interpreted in the light of that.’

Aside from the observation that the wording of this section of the statement reinforces the status of the contract as one of zero hours in terms of the commitment of the respondent, relating this term to the provision of the Part Time Work Act(shorthand title), the designation of the complainant as a ‘casual employee’ is not inconformity with the provisions of Section 11 (4) which defines a causal employee for the purposes of the Act.

‘For the purposes of this section, a part time-employee shall, at a particular time, be regarded as working on a casual basis if-

(a)    at that time

-(i) he or she has been in the continuous employment of the employer for a period of less than 13 weeks, and

(ii) that period of service and any previous service by him or her with the employer are not of such a nature as could reasonably be regarded as regular or seasonal employment,…

The employment of the complainant was regular, on a rostered two-day week, for in excess of thirteen weeks. The minimum hours of work of the complainant from October 2018 was not seasonal in nature. That his hours of work increased during the summer months does not render the employment relationship seasonal in nature. His designation as a casual employee by the employer in the statement of terms of employment was not as defined by the Part Time Work Act.

The complainant was a regular part time worker for the purposes of the Act.

Following on from his designation as a part time worker for the purposes of the Act ,the complainant was treated less favourably than the regular full-time worker whose work he was required to cover each week. Directly as a consequence of his incorrect and unlawful designation by the respondent, she felt entitled not to roster the part time employee according to her needs and to lay him off from work as she deemed necessary and without notice and to take holiday pay to cover his unpaid lay off and finally to leave the respondents employment partially or wholly because of the treatment he received and the failure of the respondent to respond to his reasonable request for minimum hours. These are terms which describe what happened to the complainant in June and July 2019 and the same terms did not apply to the full-time employee. In respect of his terms of employment, the complainant was treated less favourably than the comparable full-time employee as defined by section 9 (1) of the Act of 2001 where it states:

Subject to subsection(2) and (4) and section 11(2),if treating a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee, …

Section 9(2) provides:

‘Without prejudice to section 11 (2),if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then the employee, may ,not withstanding subsection(1) be so treated.’

Section 11(2) is a reference to the treatment of casual employees, a designation which does not apply to the complainant.

Objective Grounds for the purposes of this legislation are set out in Section 12(1) of the Act of 2001,referring to the treatment of part time employees,

‘A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on any considerations other than the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate an necessary for that purpose.’

I find that there is no objective reason which could have justified a failure to recognise the complainant as a part time and not a casual employee and then based on that incorrect designation, to fail give the complainant rostered hours each week, or which justified his being laid off to allow another person to be trained, or which justified him being laid off without notice, or which justified his having to go without pay while laid off without notice or which justified him having to take holiday pay to supplement his earnings-none of which applied to the comparable full-time employee.

Organisation of Working Time Act 1997

The complainant received holiday pay for June 12th and 13th for holidays requested by text on May 24th.

On week commencing May 27th he was removed from the roster to allow for the training of a named person and this was confirmed to him by text on that date. The complainant sought and received holiday pay for the two days in that week.

On June 5th the complainant asked if he was rostered for hours that week. There was no reply to that text.

On June 17th the complainant received a text saying he had not turned up for work-to which he replied he did not know he was supposed to turn up and the nett effect was he received no hours in that week. The text from the respondent says that the complainant worked on June 15th and 16th.

The complainant on June 17th says that he had to take two weeks off without notice, that he was only in covering for a named employee and that he had thought he would be informed of his return to rostered hours. It was after these exchanges that he asked for ‘some sort of minimum hours.

In late July early August there were texts from the complainant asking for his outstanding holiday pay. In one text on August 7th, he states that he had only received four days holiday pay.

When all of the records provided by the parties are examined, I find:

that the respondent applied an annual leave year of January to December in contravention of the Organisation of Working Time Act which defines the term ‘leave year’ as meaning a year beginning on any 1 April;

that the respondent failed to provide the complainant with any paid leave during the leave year 2018/2019(paying the leave at the end the employment relationship in August 2019);

that there is no evidence of the respondent paying the complainant an amount for Public Holidays calculated in accordance with the Act 0f 1997;

that the respondent allowed annual leave to be used to cover period of lay off and not as a measure to meet the need for the employee to reconcile work and any family responsibilities and or as an opportunity for rest and recreation;

that when paying for annual leave, that payment was not made in advance.

Based on these contraventions of the Organisation of Working Time Act,1997,as amended, the complainant is entitled to compensation for breaches of the Act at sections 19, 20,21 and 22 of the Act.

In respect of the calculation of annual leave based on hours worked, I find that the actual amount calculated by the respondent based on 8% of hours worked, which is the correct calculation in this case, was correct and that there was no outstanding liability in respect of annual leave in August 2019.

Terms of Employment Information Act,1994-2019

I find the complaint that a statement of terms of employment was not given to the complainant in contravention of Section 3(1) of this Act to be not well-founded.

I find the complaint that the respondent failed to comply with Section 3(1)(A) (e) of this Act to be well-founded. The Respondent is to pay the Complainant four weeks pay in compensation for the contravention, calculated as €460.60

Protection of Employees (Part-Time Work Act), 2001-2017

I find the complaint that the complainant was treated less favourably than the comparable full-time worker in respect of his conditions of employment based on his incorrect designation as a casual worker and then in the related conditions regarding minimum hours of work, rosters and lay-off which were not justified on objective grounds. Given that the failure to provide minimum hours of work is addressed under the Terms of Employment information Act,1994-2019 the Respondent is to pay the complainant €500 in compensation for the contraventions of the Part-Time Work Act.

Organisation of Working Time Act 1997

I find that the respondent contravened the provisions of Sections 19, 20,21 and 22 of the Organisation of Working Time Act 1997-2015.

The respondent is to pay the complainant €500 compensation in respect of the contraventions of the Act during his employment.

Provision of a written statement/zero hours contract/less favourable treatment of part-time employee/contraventions of OWT-sections 19-22