Complainant

Respondent

Anonymised Parties

Licensed Premises Duty Manager

Licensed Premises Company

Representatives

Sean Cullinane Conflict Solutions & Consultancy Services

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00033876-001

20/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033876-002

20/01/2020

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

CA-00033877-001

20/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033877-002

20/01/2020

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

CA-00033878-001

20/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033878-002

20/01/2020

The Complainant commenced her employment as duty manager with the Respondent on May 1st, 2019. Her gross pay per week was €673.00, net €533.00 and she worked 44 hours per week. The Complainant’s employment was terminated by the Respondent on the 18th December 2019. The Complainant is claiming she was unfairly dismissed but she does not have the requisite 12 months service. The claim is instead brought under the Industrial Relations Acts. The Complainant also submits   that she did not receive a statement of her terms and conditions of employment within the statutory time frame. The Respondent denies both complaints.

CA-00033878-001 Unfair Dismissal claim under the Industrial Relations Act.

The Employee submits that she was summarily dismissed without reason and without any recourse to proper procedures by the Employer’s Human Resources (HR) manager on the 18th December 2019. The Employee submits that the HR manager brought her to a private room whereupon she asked him what the purpose of the meeting was. She submits that he informed her that she was to be dismissed with immediate effect. She was given a letter to this effect and further submits that when she asked for a reason for her dismissal the HR manager responded “zero”. Her time keeping and attendance were excellent and she submits that she thought herself to be doing a very good job.

The Employee submits that the denial to her of fair procedures and the manner in which she was dismissed was unfair and unjust. The Employee relies upon the Labour Court recommendation in Beechside Company Limited T/A Park Hotel Kenmare v A Worker LCR21798   where a General Manager of a hotel had been employed for two weeks and was dismissed without warning when he was called to a meeting with the Managing Director of the hotel who told him “things were not working out”.  The Labour Court held that the employee was denied natural justice in his dismissal and that the procedures adopted in the termination of his employment were seriously flawed.

The Employee submits that the Code of Practice on Fair procedures was totally ignored. The Employee submits that the dismissal had a devastating effect on her, especially as it was Christmas week, and it also had a damaging effect on her family as she had no other income.

The Employee submits that she took up employment in another licensed premises on the 15th February 2020 but was laid off due to Covid 19 and is now in receipt of €300 per week Covid payment.

CA-00033878-002 – Non-Receipt of Core Terms in writing under the Terms of Employment (Information) Act, 1994, as amended.

The Complainant submits that she did not receive her core terms of employment within the first five days of her starting employment. The Complainant submits that she commenced employment of 1st May 2019 and was not given her core terms within the two months. She was not issued with a copy of her full contract of terms until the 7th September 2019.

CA-00033878-001 Unfair Dismissal claim under the Industrial Relations Act.

The Employer submits that it had no contrary version of events to rebut the submission of the Employee on the manner of her dismissal other than to state that there was an issue with the presentation of glasses and general cleanliness of the bar in question and that this had been brought to the attention of the Employee on one occasion.

CA-00033878-002 – Non-Receipt of Core Terms in writing under the Terms of Employment (Information) Act, 1994, as amended.

The Respondent rejects this complaint on the basis that the contract of employment was sent by the software package DocuSign eSignature to the Complainant on the 5th July 2019 and that it was signed on the 9th July. (The relevant signed document was exhibited by the Respondent). The Respondent submits that that the date format in DocuSign is set in the US date format which is MM/DD/YY instead of the European date format of DD/MM/YY. The Respondent submits that this shows that the Complainant’s version of events on this issue is incorrect.

CA-00033878-001 Unfair Dismissal claim under the Industrial Relations Act.

In this case the Employer gave no evidence in rebuttal of the Employee’s version of the manner of her dismissal. Therefore, there is no reason to doubt that the manner of her dismissal was unreasonable and devoid of any fairness. The Employer submitted that performance issues of general cleanliness and presentation in the bar had been brought to the Employee’s attention at one stage, but the Employee contended that this was an issue that was brought to the attention of all the staff, and not just the Employee. The Employer could not refute this assertion therefore I conclude that the Employee was faultless regarding any purported performance issue that could justify a dismissal.

In Beechside Company Limited T/A Park Hotel Kenmare v A Worker LCR21798 , which was opened by the Employee,   The Labour Court stated:  “The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

I am satisfied that the Employee was not provided with any specific performance issues in relation to her own work. Furthermore, it is not disputed that that she was not offered representation nor was a reason given for her dismissal. I find that the Employee was denied natural justice regarding the manner of her dismissal. I recommend that the Employer should compensate the Employee by way of payment of €12,000 to the Employee and that the Employee should accept this sum as a full and final settlement of the unfair dismissal claim.

CA-00033878-002 – Non-Receipt of Core Terms in writing under the Terms of Employment (Information) Act, 1994, as amended.

The Law applicable:

The relevant law is found at section 3 of the Terms of Employment (Information) Act, 1994, as amended, (The Act) where the pertinent sections provide as follows:

 (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 …

(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,

(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 of such agreement or order…

… (1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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 2014);

(c) 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;

(d) the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week…

There was a conflict of evidence concerning the receipt of contract in this case. The Complainant states that she signed the contract on 7th September 2019 whereas the Respondent asserts that the Complainant has mistakenly read the date in European notation, whereas the DocuSign software uses the American notation which puts the day before the month and that the date of signature was 9th July; not 7th September.  After checking the time of day in emails and other documentary evidence exhibited on the day, I am satisfied that the Respondent’s position on this is correct and that the Complainant did receive her contract on 5th July 2019, which she duly signed on 7th July 2019. However, the date of receipt of terms is still outside the two-month timeframe which the Act stipulates for receipt of terms.

Furthermore, no rebutting evidence was submitted to show that the Complainant received her core terms of employment as stipulated at section 1A of the Act.  I therefore find that the Complainant was not given a written statement in line with section 3 of the Act.

Redress in the Act is described as follows at Section 7(2):

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

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

(b) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6or 6C, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under change section 3 , 4 , 5 , or 6 , and without prejudice to any order made under paragraph (e)  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 of 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.

 (e) in relation to a complaint of a contravention under section 6C , and without prejudice to any order made under paragraph (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 of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977.

 I find that the Respondent has breached its obligation to the Complainant on two counts under section 3 of the Act. In  On the issue of redress I am directed by the Labour Court in its decision in  Morehampton Foods Ltd v Gibbons TED 18/2017,  where the Court  confirmed that a failure to comply with s.3 “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied.  

I find that the complaint well founded, and I order the Respondent to pay the Complainant the sum of €1346.00, the equivalent of two weeks wages.

CA-00033878-001 Unfair Dismissal claim under the Industrial Relations Act.

I find that the Employee was denied natural justice regarding the manner of her dismissal and I recommend that the Employer should compensate the Employee by the payment of €12,000 and that the Employee should accept this sum as a full and final settlement of the unfair dismissal claim.

CA-00033878-002 – Non-Receipt of Core Terms in writing under the Terms of Employment (Information) Act, 1994, as amended.

I find that under section 7(2) of the Terms of Employment (information) Act 1994, as amended, that the complaint is well founded, and I order the Respondent to pay the Complainant the sum of €1346.00 in compensation.

Industrial Relations Acts, Unfair Dismissal, Terms of Employment (Information) Act 1994,