ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00023035
Parties:
| Complainant | Respondent |
Anonymised Parties | A Shop Assistant | A Supermarket |
Representatives | The claimant represented herself | Director |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00029697-002 | 15/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029697-003 | 15/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029697-004 | 15/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00029697-005 | 15/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00029697-006 | 15/07/2019 |
Date of Adjudication Hearing: 30/10/2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 6 of the Payment of Wages Act 1991 and/or Section 27 of the Organisation of Working Time Act 1997 and/or Section 7 of the Terms of Employment (Information) Act , 1994 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant was employed as a Shop Assistant with the respondent from the 4th.April 2018 to the 15th.June 2019 .The claimant submitted the respondent was in breach of the Payment of Wages Act 1991 for deducting €68 from her wages for breaks she was unable to take because of lack of cover when she was the only staff member in attendance in the shop. The claimant in her direct evidence recounted working from 1.00p.m. – 9.00p.m. and asserted that there was nowhere in the shop to avail of breaks. The claimant asserted that she made complaints about the lack of breaks to Ms. V.W. The claimant submitted the respondent was in breach of the Organisation of Working Time Act 1997 for failing to pay her compensation for working on Public Holidays and for failing to pay the claimant any Sunday Premium. The claimant submitted that the respondent was in breach of the Terms of Employment (Information) Act,1994 for failing to furnish her with written terms and conditions of employment in accordance with the Act. The claimant gave a chronological account of events leading up to her alleged constructive dismissal on the 15th.June 2019.She stated that a row broke out between her and the respondent when he referred to the contents of an email from another staff member who had resigned .The claimant had told the staff member that the respondent had said that one of the children of the other staff member had been smoking. The claimant asserted that the respondent was shouting and roaring at her and said if you don’t want to be here, put the key on the counter and get out of this place. The claimant asserted that she had received enough abuse from the respondent, and she did as he asked and left distressed and in tears. The claimant asserted that se was advised by Ms. VW that the only way she would receive her outstanding wages was if she sent in a letter of resignation |
Summary of Respondent’s Case:
The respondent acknowledged that no additional payment was made for working a Public Holiday and accepted that no Sunday premium was paid. He asserted in his direct evidence that no one said I want extra money for working on Sundays or on a Public Holiday. He stated that he might not have done everything above board, but he did give the claimant €50 on Mother’s Day. The respondent disputed that the claimant was unable to avail of breaks and said you can’t go for 9 hours without eating. He asserted that every staff member was to take breaks and that 3 people could be working in the shop on a Thursday. The respondent said the shop was not busy all of the time and accepted that there was no cover – he asserted the staff could have a cup of tea. The respondent asserted that he was obliged by law to make deductions for work breaks and subsequently repaid the break deductions as a bonus scheme. The respondent accepted that the claimant was not furnished with written terms and conditions of employment. The respondent was unclear on his recall of events leading up to the termination of the claimant’s employment – he had a stroke in May, and this had affected his memory. The respondent stated that he did say he was being ignored in the shop but he never said, “get the hell out”. The respondent recalled saying to the claimant if our shop is not good enough for you, you can get another job. The respondent asserted that the claimant said, “I am outa here”. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
On the basis of the evidence presented I have concluded that the claimant did not give her prior consent in writing to the deduction for breaks and accordingly I am upholding the complaint. I require the respondent to pay the claimant €68.00 compensation for being in breach of the Act.
Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under the Act. I have reviewed the evidence presented at the hearing and noted the respective position of the parties.
The matter of the non-payment of Sunday premium was not disputed and accordingly I uphold this element of the complaint. I require the respondent to pay the claimant €400 compensation for this breach of the Act.
There was no dispute between the parties with respect to non-payment for public holidays worked by the claimant and accordingly I am upholding this element of the complaint. I require the respondent to pay the claimant €325 compensation for this breach of the Act.
On the basis of the evidence presented at the hearing and in light of the respondent’s failure to keep records of work breaks, I have concluded that the respondent was in breach of Section 12 of the Act and accordingly I am upholding this element of the complaint. I require the respondent to pay the claimant €500 compensation for this breach of the Act.
Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaints in accordance with the relevant provisions under the Act.
As there was no dispute between the parties in relation to the non-provision of written terms and conditions of employment in accordance with Section 3 , I am upholding this complaint and I require the respondent to pay the claimant €1,554.56 compensation for this breach of the Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have reviewed the evidence presented at the hearing and noted the respective position of the parties. While there is some disagreement between the claimant and the respondent in relation to the exchanges that took place on the 15th.June 2019, the respondent has conceded that his recollections are somewhat unclear owing to his health issues. I found the claimant’s direct evidence to be credible and compelling and find that the respondent’s failure to diffuse the row with the claimant on the day in question was unreasonable. I further find that there was an abject failure on the part of the respondent in complying with the basic provisions of the Organisation of Working Time Act, 1997, the Payment of Wages Act 1991 and the Terms of Employment (Information) Act 1994. Additionally, the respondent was unable to present any working time records and in the absence of any written terms and conditions of employment, the claimant had no mechanism to pursue her grievances regarding working conditions in the shop. Given this backdrop, I am obliged to conclude that the respondent conducted itself in a manner which was destructive of a relationship of mutual trust and confidence and that this conduct was so unreasonable that the claimant was justified in concluding that she was constructively dismissed.
Accordingly I am upholding the complaint of constructive dismissal and require the respondent to pay the claimant €4,500 compensation.
Dated: 24th March 2020
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Key Words:
Constructive dismissal |