ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | Hotel Employee | Accommodation & Food Service Provider |
Representatives | Katherine McVeigh & |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00021139-001 | ||
CA-00021139-002 | ||
CA-00021139-003 | ||
CA-00021139-004 | ||
CA-00021139-005 | ||
CA-00021139-006 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The complainant commenced employment with the accommodation and food service provider in November 2009 at €10 per hour gross pay. On July 15th 2018 he was (allegedly) sent a letter serving to terminate his employment. On August 14th 2018 the complainant lodged complaints with the W.R.C. in respect of Sunday work, daily rest periods, public holidays, rest breaks, redundancy pay and minimum notice entitlements. |
Summary of Complainant’s Case:
CA-00021139-001 – On Tues. Dec. 17th, 2019 the complainant formally withdrew this complaint on the appropriate W.R.C. form. CA-00021139-002 – According to the complainant, his shift normally commenced at 7 a.m. and the relevant 24 hour cycle ended at 7 a.m. the following morning. In this 24-hour cycle, the complainant only had a break of eight hours (from 3 P.M. to 11 P.M.), whereas he was entitled (under the relevant statute) to a break of at least 11 hours. These are described by the complainant as ‘serious breaches which took place weekly on at least two occasions per week’, precluding scope for the requisite recuperation. It is alleged that these frequent breaches constituted a major health and safety risk to the complainant.
CA-00021139-003 – According to the complainant, he was remunerated for working public holidays by being given an additional €50 (i.e. equivalent to 5 hours pay). However, a shift is eight hours. The standard compensation of €50 was not adequate.
CA-00021139-004 – According to the complainant, he was required to manage the reception at the respondent's premises, but was not assigned any rest breaks whilst in the course of his employment, constituting a health and safety risk to him.
CA-00021139-005 – The respondent issued the complainant with a letter communicating notice of redundancy, dated 13/07/18, specifying that the redundancy was to take effect from 05/08/18. However, the respondent subsequently sought to withdraw the dismissal notice, and asserted that the complainant was not redundant. According to the complainant, one cannot withdraw a dismissal or redundancy notice unilaterally. Hence, the complainant sought the appropriate statutory redundancy payment.
CA-00021139-006 – The complainant is entitled under statute to 4 weeks’ notice of termination. However, he only received three weeks’ notice. Accordingly, one week's pay was sought, reflecting the difference between the three weeks’ notice received and the four weeks’ notice he was entitled to receive. |
Summary of Respondent’s Case:
CA-00021139-001 - On Tues. Dec. 17th, 2019 the complainant formally withdrew this complaint on the appropriate W.R.C. form. CA-00021139-002 – According to the respondent, theOrganisation of Working Time (General Exemptions) Regulations 1998 ‘recognises that it may not be possible to guarantee uninterrupted rest breaks for workers engaged in certain activities such as those that concern services relating to the reception…’. That is, that the complainant - as a receptionist - is not entitled to relief under this heading of claim, as he is an exempt worker via s.11 of the 1997 Act.
CA-00021139-003 – According to the the respondent, any potential claim under this heading is limited to the two public holiday dates actually worked by the complainant (i.e. 2 April 2018 and 7 May 2018) and it is also limited by the amount already paid to the complainant by the respondent, (as accepted by the complainant), namely €50 (per day). Hence, any compensation awarded to the complainant should be limited to €60.
CA-00021139-004 – According to the respondent, theOrganisation of Working Time (General Exemptions) Regulations 1998 ‘recognises that it may not be possible to guarantee uninterrupted rest breaks for workers engaged in certain activities such as those that concern services relating to the reception…’. That is, that the complainant is not entitled to relief under this heading of claim, as he is an exempt worker via s.11 of the 1997 Act.
CA-00021139-005 – According to the respondent, as per s.9(2) of the relevant 1967 Act, an employee is not considered to be dismissed if he is re-engaged by the same employer under a new contract of employment and that offer of new employment was made before the end of the previous contract and takes effect immediately on the ending of that employment. On 26 July 2018, the respondent informed the complainant that it had found alternative employment for the complainant, which was to commence immediately following the end of the original contract on 5 August 2018. The provisions of the complainant’s role - as to the capacity, place, terms and conditions of his employment - did not differ from the initial position immediately before termination (5 August 2018). Furthermore, the terms of the new contract merely changed the title from ‘Receptionist’ to ‘Security Guard’. There were no other differences in the offer of alternative employment. Accordingly, no (statutory) redundancy payment is due.
CA-00021139-006 – As the complainant voluntarily terminated his employment, notice payment is not due.
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Findings and Conclusions:
CA-00021139-001 – On Tues. Dec. 17th, 2019 the complainant formally withdrew this complaint on the appropriate W.R.C. form. CA-00021139-002 – Based upon the dataset furnished to the complainant’s representative, there were ~27 breaches of the relevant provision between Nov. 1st 2017 and July 24th 2018 (of which ~18 occurred in the relevant 6 month period pertaining to the claim (i.e. from Feb. 14th to Aug. 14th, 2018)). According to the respondent, theOrganisation of Working Time (General Exemptions) Regulations 1998 ‘recognises that it may not be possible to guarantee uninterrupted rest breaks for workers engaged in certain activities such as those that concern services relating to the reception…’. However, the relevant quotation fails to close off the provision in the regulation, which exempts those involved in: ‘the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment’.Notably, the complainant was a ‘hotel employee’ in the accommodation and food services sector.
CA-00021139-003 – According to the the respondent, any potential claim under this heading is limited to the two public holiday dates actually worked by the complainant, namely 2 April 2018 and 7 May 2018 and is also limited by the amount already provided to the complainant by the respondent, as accepted by the complainant, namely €50. Hence, any compensation awarded to the complainant should be limited to €60. However, it should be noted that the level of compensation awarded should address the criteria set out by the European Court of Justice in the case of Sabine Von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen (1984 ECR 1891).
CA-00021139-004 – According to the respondent, theOrganisation of Working Time (General Exemptions) Regulations 1998 ‘recognises that it may not be possible to guarantee uninterrupted rest breaks for workers engaged in certain activities such as those that concern services relating to the reception…’. However, the relevant quotation fails to close off the provision in the regulation, which exempts those involved in: ‘the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment’. Notably, the complainant was a ‘hotel employee/receptionist’ in the accommodation and food services sector. CA-00021139-005 – The respondent’s correspondence to the claimant dated July 13th, 2018 clearly provides for ‘Termination of your position with Redundancy’, with an enclosed ‘copy of your redundancy calculation’. The respondent’s correspondence to the claimant dated July 26th, 2018 refers to the aforementioned ‘redundancy letter’ but offers to ‘accommodate you for two shifts during the week in lieu of your weekend shifts’. In such (significantly altered contractual) circumstances, it was not unreasonable for the claimant to refuse the offer. CA-00021139-006 – As the complainant did not voluntarily terminate his employment – see the respondent’s correspondence to the claimant dated July 13th, 2018 - notice payment is due. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
CA-00021139-001 – On Tues. Dec. 17th, 2019 the complainant formally withdrew this complaint on the appropriate W.R.C. form. CA-00021139-002 – For the reasons set out above, I find that the complaint is well founded and the respondent shall pay to the complainant redress of €5,000. CA-00021139-003 – For the reasons set out above, I find that the complaint is well founded and the respondent shall pay to the complainant redress of €300. CA-00021139-004 – For the reasons set out above, I find that the complaint is well founded and the respondent shall pay to the complainant redress of €5,000. CA-00021139-005 – For the reasons set out above, I find that the complaint is well founded and the respondent shall pay to the complainant redress in the form of the agreed statutory redundancy sum of €6,792.70. CA-00021139-006 – For the reasons set out above, I find that the complaint is well founded and the respondent shall pay to the complainant redress of €370. |
Workplace Relations Commission Adjudication Officer:
Key Words:
Rest Breaks Public Holidays Redundancy Notice |