Complainant

Respondent

Anonymised Parties

A chef

A restaurant

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-00030507-003

23/08/2019

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

CA-00030507-004

23/08/2019

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

CA-00030507-005

23/08/2019

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

CA-00030507-006

23/08/2019

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

CA-00030507-007

23/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00030507-008

23/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030507-009

23/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030507-010

23/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030507-011

23/08/2019

The Complainant is a chef who worked for the Respondent from 11th August 2018 until 17th April 2019, a period of 8 months. The Complainant worked between 40 and 50 hours per week and was paid a rate of €10.25 per hour.

The Complainant’s complaint form contained 9 complaints for adjudication. On closer examination and following some discussion at the start of the hearing into these complaints six complaints were closed. The closed complaints were as follows:

CA – 00030507 – 005 / CA – 00030507 – 006 / CA – 00030507 – 007 – these three complaints were closed due to the Complainant not having the required 12 months service to pursue a complaint under section 8 of the Unfair Dismissals Act, 1977.

CA – 00030507 – 008 – this complaint was closed due to the Complainant not having the required 104 weeks service required to pursue a complaint under section 39 of the Redundancy Payments Act, 1967.

CA – 00030507 – 010 / CA – 00030507 – 011 – these two complaints appear to be duplicates of CA – 00030507 – 009.

The hearing proceeded into the hearing of three complaints:

CA – 00030507 – 004 – a complaint that the Complainant’s dismissal was unfair, to be heard under the Industrial Relations Acts.

CA – 00030507 – 003 – a complaint to be heard under section 7 of the Terms of Employment (Information) Act, 1994.

CA – 00030507 – 009 – a complaint to be heard under section 12 of the Minimum Notice and Terms of Employment Act, 1973.

CA – 00030507 – 003 – a complaint to be heard under section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant contends that the contract he was issued with is incomplete, there are missing pages in the contract the Respondent sent to the WRC, namely the pages regarding his any health issues.

CA – 00030507 – 009 – a complaint to be heard under section 12 of the Minimum Notice and Terms of Employment Act, 1973.

The Complainant contends that what it says in the law is that he is obliged to give and receive one week’s notice. He further contends that the Respondent’s attempt to back track four weeks the day he allegedly resigned does not make sense.

CA – 00030507 – 004 – a complaint that the Complainant’s dismissal was unfair, to be heard under the Industrial Relations Acts.

The Complainant firmly denies that he resigned from his job. If he was going to resign he states that he would have done so in writing to ensure there was no misunderstanding and he could not be accused of neglecting his duties to his employer.

CA – 00030507 – 003 – a complaint to be heard under section 7 of the Terms of Employment (Information) Act, 1994.

The Respondent contends that he issued a written contact to the Complainant and that the Complainant signed same. A copy of a contract was produced at hearing.

CA – 00030507 – 009 – a complaint to be heard under section 11 of the Minimum Notice and Terms of Employment Act, 1973.

The Respondent states that the Complainant resigned from his position on 25th March 2019. The contract requires 4 weeks’ notice from the employee. The Complainant informed the Respondent he would be flexible on this point.

CA – 00030507 – 004 – a complaint that the Complainant’s dismissal was unfair, to be heard under the Industrial Relations Acts.

The Respondent denies that the Complainant was dismissed from employment.

On 25th March 2019 the Complainant, of his own volition, advised the Respondent Managing Director verbally and wholly unexpectedly and without any adverse background leading up to it. The Complainant advised the Managing Director that he was resigning for a number of personal reasons including that he felt he was not performing well in his role and also said that he had been sick frequently and felt that a working kitchen environment was not good for his rhinitis condition. He informed the Managing Director that he would stay until such time that a replacement was found, and he would seek employment in his area of qualification, graphic design.

This conversation between the Managing Director and the Complainant was cordial and the Managing Director informed the Complainant that he would start the search for a new member of staff and that he (the MD) expected that the Complainant could finish within the four weeks set out in the contract.

CA – 00030507 – 003 – a complaint to be heard under section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant has an entitlement under law to be provided with a written statement of the main terms of his employment within two months of commencement of the employment. The statement under section 3 (1) of the said Act must include the following:

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

c)       the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee's contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

fa) a reference to any registered employment agreement or employment regulation            order which applies to the employee and confirmation of where the employee may obtain a copy

g)      the rate or method of calculation of the employee's remuneration,

ga) that the employee may, under section 23 of the National Minimum Wage Act,2000

     requests from the Employer, a written statement of the employee’s average hourly

     rate of pay for any pay reference period, as provided in that section.

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to—

(i)                  incapacity for work due to sickness or injury and paid sick leave, and

(ii)                pensions and pension schemes,

l)        the period of notice which the employee is required to give and entitled to receive

(whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

m)    a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The statement issued by the Respondent does not contain the specified information:

1.       The Complainant’s job title is missing. (point d above)

2.       The start date is missing from the statement. (point e above)

3.       The rate of the employee’s remuneration. (point g above)

4.       The date the contract will end on. (point f above)

Section 3 (4) of the Act reads as follows:

3(4) A statement furnished by an employer under subsection (1) shall be signed and dated on behalf of the employer.

The statement produced at hearing is neither signed nor dated. This complaint is well founded.

CA – 00030507 – 004 – a complaint that the Complainant’s dismissal was unfair, to be heard under the Industrial Relations Acts.

During the hearing of this complaint evidence was provided by three individuals, the first being the lady who looks after HR matters, the second being the head chef and the third was the bakery manager. All three had heard that it was the Complainant’s intention to resign from his position in the Respondent organisation.

In evidence the head chef informed the hearing that he had discussed finding a replacement with the Complainant and he was aware that the Complainant was leaving just prior to his holidays due to commence on 18th April.

The lady from HR had heard that the Complainant was leaving to return to Portugal for tax reasons, he had to regulate his taxes.

A meeting took place between the Complainant and the Respondent Managing Director, during this meeting the Complainant’s performance was discussed, it is contended that the Complainant told the Respondent Managing Director “If you think I am not doing a good job just let me go”.

From the evidence adduced at the hearing the Respondent Managing Director left this hearing believing that the Complainant had resigned.

The Complainant contends that he was informed on 17th April 2019 that he was dismissed, this was never the subject of any appeal requested by the Complainant and is denied by the Respondent Managing Director.

On the balance of probabilities, I decide that a dismissal did not take place. The complaint as presented under the Industrial Relations Act is not well founded.

CA – 00030507 – 009 – a complaint to be heard under section 12 of the Minimum Notice and Terms of Employment Act, 1973.

The Respondent states that the Complainant resigned from his position on 25th March 2019. The contract requires 4 weeks’ notice from the employee. The Complainant informed the Respondent he would be flexible on this point.

The complaint as presented under the Minimum Notice and Terms of Employment Act, 1973 is not well founded.

CA – 00030507 – 003

The Terms of Employment (Information) Act, 1994 - Section 7(2) of the Act states:

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of contravention of section 3,4, 5 or 6 shall do one or more of the following, namely –

(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

I now order the Respondent to pay compensation of €922.50 (two weeks remuneration i.e. 2 x 10.25 x 45) to the Complainant for this breach of legislation.

CA – 00030507 – 004 - complaint is not well founded.

CA – 00030507 – 009 - complaint is not well founded.

Payment of compensation should be paid within 42 days from the date of this decision.