ADJ-00024900

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00024900

Parties:

	Complainant	Respondent
Anonymised Parties	A Shop Assistant	A Shop

Complaints:

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-00031686-002	20/10/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00031686-004	20/10/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00031686-005	20/10/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00031686-006	20/10/2019

Date of Adjudication Hearing: February 10th 2020

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Act 1977 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).

Background:

The Complainant stated she received no written contract, that her hours of work where being significantly reduced without written notice or agreement and that she was constructively dismissed due to the actions of her Employer. The Complainant withdrew Complaint Reference Number 00031686-002 at the Hearing.

Summary of Complainant’s Case:

The Complainant was employed as a Shop Assistant from September 16th 2017 to October 18th 2019. She worked a 20.5 hour week at a rate of 12 Euros per hour. She stated she regularly did not receive her pay in time. She did not receive written terms and conditions of employment. The Employer was reducing her hours to one and a half day per week without her agreement. He informed her of this by text. She felt she had no option but to close the shop (she had the keys) until she was paid by the Owner the monies due. The Employer told her not the leave the premises and keep it open. She felt she had no alternative but to leave the employment due to the conduct of the Respondent.

Summary of Respondent’s Case:

A Complaint was received by the Director General of the Workplace Relations Commission from the Complainant on October 20th 2019 alleging that her former employer contravened the provisions of the Terms of Employment Information Act 1994 and The Unfair Dismissals Act 1977 in relation to her. The said complaint was referred to me for investigation. A Hearing for that purpose was held on February 10th 2020. There was no appearance by or on behalf of the Respondent at the Hearing. I am satisfied that the said Respondent was informed in writing of the date, time and place at which the Hearing to investigate the complaint would be held and were not present at the Hearing. A Solicitor acting for the Respondent came on record on November 5th 2019 but was not present at the Hearing.

Decision:

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. Section (1b) of the Unfair Dismissals Act 1977 states “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 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”. The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The burden of proof, lays with the Complainant. She must show that her 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 Adjudicator 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 the Adjudicator is not satisfied that the “contract” test has been proven, then it is obliged to consider the “reasonableness” test. In this case, based on the uncontested evidence of the Complainant, I find that the Respondent breached the implied contractual terms by not paying the Complainant the monies due in a timely manner and by reducing her hours almost in half. This was a fundamental breach of the contract between the parties and I find the Complainant had grounds to terminate her employment and that she was unfairly dismissed. The second test is 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”.While there is no need to consider the “reasonableness test” if the “Contract test” has been proven it is not reasonable for an employer to not pay staff on a regular basis and change their hours worked in nearly half without agreement. Again, based on the uncontested evidence of the Complainant her claim would also qualify on the “reasonable test” ground. I award the Complainant 3,000 Euros for breach of the Unfair Dismissals Act 1977 (CA 00031686-006). 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 3 of the Terms of Employment (Information) Act (below) requires an Employer to give a written statement of the terms and conditions of employment no later than two months after the commencement of employment. The Complainant in this case, based on her uncontested evidence, never received any written statement.

“3.— (1) An employer shall, not later than 2 months after the commencement of an employee's employment 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—

(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,

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

(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. I find that the claim for the non-provision of a written contract under Section 3 of the Act to be well founded and award the Complainant 800 Euros for the breach Section 3 of the Act. (CA-00031686-004).

Section 5.1 of the Terms of Employment Information Act 1994 requires an Employer to notify an employee in writing of any change to their terms and Conditions of Employment within one month of the change. Based on the Complainants evidence this did not happen but as she left the employment once she was told about the change in hours this is a moot point. As the issue of written notification of the reduction in hours caused the cessation of the Complainants employment it is unclear if Section 5.1 was breached so I find this claim to be not well founded (CA-00031686-005)

Dated: March 23rd 2020

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Constructive Dismissal