Complainant

Respondent

Anonymised Parties

A Porter

A Limited Company.

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-00031534-003

12/10/2019

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

CA-00031534-005

12/10/2019

The complainant commenced working in the respondent entity on Baggot Street on the 06/05/2018. His employment ended on 29/9/2019.

The complainant is an international student persuading a Master’s degree. He started working in order to manage his expenses.

Mr. SC the owner of the respondent company was always extremely rude to the complainant. He shouted at him one day when the complainant was working at the Village Market. This was in front of other staff. He then threw a curry ladle at him, in a fit of anger. The complainant felt humiliated. After that the complainant told Mr SC that he didn’t want to work at the Market location. He said he would continue to work in the restaurant. He took great offence. Following that he started reducing the complainant’s hours in the restaurant. He continued to treat the complainant very badly, especially in front of the other staff. On the days the complainant did work, he was instructed to go home early, meaning the complainant wouldn’t get any of the tips.

The last roster before the complainant left was for just 16 hours. That roster was sent to him via Whatsapp and not by the normal method, e-mail.

The complainant never got a break during an 8 hours shift. He did not get paid for working on Sundays nor did he get any bank holidays. He was not paid for holidays.

He was not given a contract. Furthermore, the complainant was paid only €10.00 per hour but his payslips stated €12.00 per hour.

The complainant is unemployed now. He is finding it very difficult to find another job and is finding it equally difficult paying his bill.

The respondent denies the complainant’s allegation that he shouted at him and that he threw objects at him. He states that the complainant has made it all up.

The complainant was given a contract in May, 2018. In that contract the complainant is described as a part time porter. He was doing well in the respondent entity, so he was promoted and given more hours. The complainant refused to work on the market stating that he would only work in the restaurant. On that basis, his hours had to be reduced. Employees had to be flexible if they wanted to get 40 hours per week. Also, the respondent spoke with the complainant the week before the alleged incident (shouting) because he thought that he was working too hard, so he decided to reduce his hours.

The complainant could take a break when he wanted to. It wasn’t in the roster but it was up to him to take the breaks. Staff are entitled to a 15 minutes break after 4 hours and 30 minutes after 6 hours. This is in the employee handbook which is in the staff room.

The respondent attended at the hearing without witnesses or documentation. He stated that he had received a letter from the WRC which set out that he must come to the hearing alone and wasn’t allowed to bring representation or witnesses. The respondent was asked to produce this letter. After searching for it for some time he was unable to find it. He was asked to forward the letter to the WRC but to date it has not been furnished.

CA 31534-003 (Hours of Work)

The complainant stated that he did not get a break during an eight hour shift. He was not paid a supplement for working on Sundays and was not paid for bank holidays. The claim filed with the WRC on the 12/01/2019 was only in relation to breaks. Accordingly, I can only make a decision in relation to that part of the claim for which the respondent is on notice.

The Respondent did not bring any documentation to the hearing in relation to the complainant’s hours of work.

Section 25.—(1) 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 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.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shalllie on the employer.

Section 25(1) of the Act requires an employer to maintain records, in a prescribed form, showing compliance with the Act. Failure to comply with this requirement, without reasonable cause, amounts to a criminal offence.

The normal rule in civil proceedings is that the person bringing proceedings bears the burden of proving every element of the wrong upon which their claim is founded. It is also the normal rule that the party who bears the legal burden of proof also bears the evidential burden. The effect of s.25(4) of the Act is to shift the burden to the Respondent in cases where records in the statutory form were not maintained. Thus, a form of rebuttable presumption of non-compliance arises in such cases. But the burden of proof must be applied in a way that conforms to the requirements of natural justice and the right of the Respondent to mount a defence. This suggests that, at a minimum, the Respondent must know, with reasonable clarity, what it is expected to rebut.

The complainant produced basic rosters that he was sent on a weekly basis. He did not have access to any other type of roster. The respondent was put on notice that the complainant was alleging that he was not given his statutory breaks. The respondent wrote into the WRC on the 30th October, 2019 setting out that all employees are entitled to a 15 minute break after 4 hours and a 30 minutes break after 6 hours. I note that whilst the respondent sets out what his employees were entitled to, he did not state what breaks they actually got. Despite being put on notice of the allegation, he failed to bring any records with him. I found his evidence that he was informed in writing by the WRC that he could not bring any documentation with him to be utterly disingenuous.

S27(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

The complaint is well founded. I am requiring the respondent to pay to the complainant €5,000.00 compensation.

CA 31534-005 (Unfair Dismissal)

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“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 the 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 of employment without giving prior notice of the termination to the employer”

S7.—(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 rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (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) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The burden of proof, which is a very high one, lies on the complainant. He must show that his resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

If I am not satisfied that the “contract” test has been proven, then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”

The complainant did not invoke any procedure prior to terminating his contract of employment. It would seem that he didn’t even address the issue with the respondent prior to resigning by text message. Whilst I accept the complainant’s evidence of how he was treated by the respondent, I find that he failed to invoke a grievance prior to resigning. No evidence was adduced as to why he failed to raise a grievance. On that basis I find that the complaint fails.

The complaint is well founded. I award the complaint € 5,000.00

The complaint fails.