Complainant

Respondent

Anonymised Parties

A Food Service Employee

A Food Outlet

Representatives

none 

W.R. Joyce & Co Solicitors

Act

Dispute Reference No.

Date of Receipt

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

CA-00039679-001

08/09/2020

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

CA-00039679-002

08/09/2020

The complainant began her employment with the respondent in November 2019 on a short-term contract. She worked four days a week at a rate of €10.10 per hour.

In February, 2021 she was offered an improved contract at €10.50 per hour but this was not accepted.

Difficulties arose following the Covid-19 pandemic, and which resulted in the termination of the complainant’s employment which have given rise to the complaint.

The respondent is a take away food business which has been trading for over fifty years and employs fifteen people.

The owner confirmed that he found the complainant to be a competent worker and this was the reason he offered her a more secure contract and a higher rate of pay in February 2021.

The complainant went on sick leave on March 26th, 2020 and submitted a certificate covering her for two weeks’ absence.

In fact, the business closed due to the pandemic on April 5th and on April 25th the owner advised his employees by telephone that he would re-open the following Wednesday (April 29th).

He could not make contact with the complainant and one other employee but sent them a message to expect a call the following afternoon from him between 14.00 and 15.00. He assumed that she would return to work when her medical cortication expired, and was expecting her on May 4th for which she was rostered.

She did not appear and sent a text on May 5th saying her phone had been broken.

She gave no indication of he whereabouts, her health status or whether she was planning to return to work. The owner also offered to assist her with Covid-19 related social welfare payments.

By May 17th, he had heard nothing further and he sent an email terminating her employment.

She was still on probation and while she appears to rely on the revised contract offered to her in February, that contract was never concluded or agreed, there was no change to her rate of pay, for example, and she continued on the basis of her original contract.

The respondent accepts that a week’s pay is due under the Minimum Notice Act.

The roster for May 4th was sent to the complainant less than twenty-four hours before her scheduled shift and she didn't get the opportunity to get onto her emails till the May 5th and contacted the respondent  immediately.

She tried her best to stay in contact with the respondent While she had been given the opportunity of returning to work later in the year she was unsure of this as there is no guarantee it would be a permanent position.

She was also advised not to accept the offer while the QRC proceedings were in train.

She had spent quite a lot of money on a uniform not long before the pandemic and had been asked to buy a second work shirt which was expensive.

She was told that comfortable shoes she had bought for work and had an excellent grip on them were not allowed.  

She had to buy new ones that were slippy and were very unpleasant to wear just before her contract was terminated.

She has since disposed of the uniform.

Perhaps working backwards in this case, the respondent repeated his offer in the course of the hearing to re-engage the complainant. It was clear that he retained his view that she was a good and competent worker.

Somewhat surprisingly, she told the hearing that she had been advised by a public information service not to accept his offer of a position In December 2020. If this is so, it was very bad advice, if it was based on some mistaken notion that it would adversely affect her case at the WRC.

On the contrary, an important focus in cases under the Industrial Relations Act is the primacy of workplace procedures and the resolution of conflict at that level. 

Such advice also failed to take account of the limited options to provide a remedy under this legislation, all of which, on the facts of this case, would fall well short of the value of an actual job.

I do not fault the respondent for his actions in this case (other than in respect of the payment of notice which he has accepted is outstanding).

The complainant appeared to have no sense of her obligation to be reasonably contactable, and available, or at least if she was not, that her failure to be would not provide much of a defence in a case such as this unless there were exceptional reasons.

There were none in this case.

(Indeed, the complainant’s problems with technology persisted as she ran out of credit on her phone in the course of the hearing. Subsequent contact by the Case Officer confirmed that there were only matters of detail remaining outstanding which have been taken into account and it was not considered necessary to resume the hearing.)

One aspect of the matter which arose on that conversation and gives rise to concern arises from the fact that it appears that employees of the respondent are required to provide a uniform at their own expense.

The complainant (in her conversation with the Case Officer) cited difficulty in purchasing this as a factor in how soon she might be able to return to work.

It should not be, and I recommend that the cost of providing a particular form of dress required by him should be met by the respondent.

My recommendation and decision are below.

Decision;

Complaint CA-00039679-002 under the Minimum Notice and Terms of Employment Act is well founded and I award the complainant one week’s pay.

Recommendation;

I recommend that the complainant accept the respondent’s offer of re-engagement to be effected as soon as the parties can agree a starting date. She should be aware that it is her responsibility to ensure that she is contactable by her employer insofar as this is necessary for the purposes of her employment.

The contractual terms of the re-engagement are a matter for the respondent, but I recommend that following a suitable period for review he consider putting the February 2020 contract on offer again should this be justified by continuing satisfactory performance.

I recommend that any particular uniform or other protective clothing required by the respondent should be supplied at his expense.

Termination, Notice.