Complainant

Respondent

Anonymised Parties

Café worker

Café

Representatives

Self 

 No attendance

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-00033784-001

14/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033784-002

14/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033784-003

14/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00033784-005

14/01/2020

The Complainant was in the employment from the 18th of September 2019 to the 18th of December 2019. She had a mixture of duties including serving tables, washing dishes etc. The rate of pay was €9.80 per hour and the hours of work varied from 16 to 37 which she gave as an average of 30 hours per week. It would appear that the Respondent is in liquidation. On the 12th of February 2020, the Respondent provided to the WRC what was described a contract of employment and employee handbook. On the 16th of February 2021, the Respondent informed the WRC that another named person was no longer in employment and the named employment had ceased trading. On the 22nd of February 2021, the WRC responded and asked for a name to address letters from that point on and stated that the hearing of the case would proceed on the 11th of March 2021. There was no further contact from the Respondent to the WRC despite correspondence issuing up until the 5th of March 2021. I am satisfied that the Respondent was properly notified of the hearing and the Workplace Relations Commission made every reasonable effort to provide the Respondent with an opportunity to attend the hearing and the hearing proceeded to hear the evidence of the Complainant on this basis.

Terms of Employment (Information) Act 1994

The Complainant stated that she never signed any statement of terms of employment and that she had never seen the document provided by a representative of the Respondent when working there. The complaint is for compensation for failure to provide a statement of terms of employment.

Payment of Wages Act 1991

The events which gave rise to these complaints occurred prior to Christmas of 2019. When asked at the hearing, the Complainant stated that there were no regular rostered hours within the employment. A named person could provide the rosters on the day when he attended at the premises and he would draw them out on a page for staff. The Complainant had hoped to travel home for Christmas of that year and was informed by a manager that the business was closed for the 25th, 26th and 27th of December. She had learned this when she had asked could she come back to the work on the 28th which would allow her to spend some time with her family. At that stage she was told she could leave at 1.00pm on the 24th of December which would allow her to catch her train home. The rota for that week was later published and she found that she was working on the 27th which she had understood was a closed day. She contacted a named person and said that she would not be working on the 27th as she understood that the business would be closed. The roster was then changed so that she was obliged to work until 4.30pm on the 24th of December which meant that she would not be able to get home to her family for Christmas. She stated that she believed that this was punishment for her refusal to work on the 27th. She was then blamed by the named manager and other staff for the business being closed on the 27th because she was not available. The complaint was for €102 in unpaid wages for one shift worked in the week of the 16th to the 20th of December which she believes was either the 16th or the 18th of December. She had contacted the Respondent and their head office but did not receive the wages which were due to her and which she says she would have been paid on the 27th of December 2019.

Organisation of Working Time Act

The complaint was for holiday pay due on termination of the employment. The statement of terms of employment provided by the Respondent to the WRC under holidays stated in bold: “Should you leave your position without giving the required notice you will forfeit all holidays earned when employed”. It would seem that the refusal to pay the accrued holiday pay is because when the Complainant found that she was rostered until 4.30 on the 24th of December she decided to leave the employment at that stage and without further notice. The amount of holiday pay claimed is €235.20.

Industrial Relations Act 1969

This dispute is concerned with the manner in which the Complainant was treated while in the employment where she referred to being bullied and humiliated repeatedly by a named person in front of others while at work. She spoke about the unprofessional manner in the way in which she was treated in relation to her leave at Christmas, the changing of her Christmas roster as a punishment and then being blamed and described as childish for refusing to work on December 27th, 2019.

As the Respondent did not attend the hearing and was not represented, there is no evidence on their behalf to consider. The document provided by the Respondent  to the WRC was nonetheless discussed with the Complainant and the contents together with her evidence were considered where relevant to the Decision to be taken, in the Findings and Conclusions below.

Terms of Employment (Information) Act 1994

There is no evidence to show that the Complainant received a copy of the statement of terms of employment provided to the WRC. A statement signed only by a person acting on behalf of the Respondent which is also undated could not be accepted as evidence in this case of providing that document to the Complainant.

Payment of Wages Act 1991

Based on the available evidence the complaint regarding payment of wages is regarded as credible especially when combined with the actions of the Respondent in respect of unpaid holiday pay would appear to represent some class of punishment to the Complainant for not accepting the rostered hours which were given to her in around Christmas of 2019. The circumstances of that situation as described by the Complainant were not reasonable and there is no basis for the deduction either by way of the entitlement to withhold the wages or the circumstances. Repayment of the wages is due in full.

Organisation of Working Time Act 1997

There is no legal basis on which the Complainant or the Respondent could contract out her statutory right to holiday pay in general or holiday pay on termination as a term of employment. The statement contained in the terms of employment submitted by the Respondent to the effect that a failure to give the required notice would result in a forfeiture of holidays earned while employed is therefore unlawful and the Complainant remains entitled to the appropriate calculation of her holiday pay on termination.

Industrial Relations Act 1969

The description of her workplace and the manner in which she was treated personally both during her employment and the complete disregard for her situation at Christmas 2019 together with the retributive nature of the decisions to withhold  payments due to her, are best described as Dickensian. The Industrial Relations Act is a voluntary mechanism for resolving a dispute and as such has no standing as an enforceable element of employment rights legislation. Nonetheless I will make a recommendation on the basis that the situation described by the former employee is one which should not be repeated.

Terms of Employment Information At 1994 CA -00033784-001

This complaint is well founded. The Respondent is to pay the Complainant €1176 in compensation.

Payment of Wages Act 1991 CA-00033784-002

The complaint is well founded. The Respondent is to pay the Complainant €102.00 nett in compensation.

Organisation of Working Time Act 1997 CA-00033784-003

The complaint is well founded. The Respondent is to pay the complainant €235.20 compensation

Industrial Relations Act 1969 CA-00033784-005

I recommend that the Employer in this case, including their directors and line managers, should familiarise themselves with the basics of employment legislation including the rights of employees and their right to a place of work free from personalised harassment and their right to be treated with dignity in their workplace.

Statement of terms ; holiday pay and wages withheld on termination; mistreatment generally.