Complainant

Respondent

Parties

Robert  Blazsik

Dessert First

Representatives

Renata Bencsik

Fiona Egan Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00038894-001

25/07/2020

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

CA-00038894-002

25/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00038894-004

25/07/2020

The Complainant was employed by the Respondent as an Assistant Baker from 30 August 2019 to 2 July 2020.  He was dismissed following an incident in the workplace between him and the owner of the business.  His complaint of unfair dismissal is considered and adjudicated upon in a separate Complaint reference ADJ-00036008.  The complaint under CA-00038894-001 was withdrawn at hearing as the payment was made. 

Terms of Employment (Information) Act 1994.

The Complainant contends that on commencement of his employment on 30th of August 2019 he was given a contract that stated I will be required to work variable hours per week between the days of Monday and Sunday. He contends that the contract fails under the Miscellaneous Provision Act 2018. He submits that he worked various hours, some weeks 8 hours, some weeks 16 or 24 however there were weeks he was not given any hours of work.  He was given a new contract on the 16th of June 2020.  

Protection of Employees (Part-time Work) Act 2001

The Complainant contends that he was penalised for seeking his rights under the Act.  He submits that he was dismissed for seeking his rights. He approached the employer looking for hours of work or compensation for having no hours and the employer dismissed him.

In September 2019, shortly after the Claimant had commenced employment, the Respondent Company of experienced a cancellation of a valuable Client’s contract, which had a detrimental  impact. At this point the Claimant was amongst those with the shortest service length of service with the Respondent, thus, the Respondent made the decision to place the Claimant on lay off from September 24 to October 15, 2019. In early March 2020, when the Covid-19 pandemic was beginning to cause implications for the industry, the Respondent therein had to place the Claimant on lay of as of the March 14, 2020, this was confirmed to the Claimant in a letter dated March 13, 2020. In March 2020, the Claimant had requested an amendment to the contract issued on commencement of employment, outlining the minimum hours he could expect to work per week. The Respondent agreed to honour his request as she acknowledged therein the initial contract issued to the Claimant failed to outline same. However, due to the cancellation of contracts due to school and restaurant closures the Claimant was being placed on temporary layoff. The Respondent committed to amending his contract to state a fixed amount of hours per week when he returned from layoff.   The Claimant returned to work on June 16, 2020. The Claimant was issued with an amended contract of employment outlining that the Claimant would be required to work 24 hours per week. The Claimant was content with this contract and signed same on June 17, 2020.

The Claimant was furnished with copy contract of employment within the first two

months of his employment in accordance with section 3 of the Terms of Employment

Act 1994.

The Claimant has alleged that his contract stated he was required to work variable hours

depending on the needs of the business.

The Respondent explained at the outset to the Claimant that she could not guarantee the

hours per week he would be required to work however this was agreed upon by the

Claimant and resulted in him signing said contract on the 2nd October 2019.

The Claimant was provided with a second contract on the 16th June 2020, the first day he

returned to work post lay off. His new contract stipulated that he would be given 24

hours of work per week. The normal workday at the employment is an 8 hour shift and

The Complainant was never asked to work anything other than an 8 hour day. It might not have

been explicitly stated on the contract, but it was explained that 24 hours per week would

equate to 3 x 8 hour days. In his time in the employment there was no deviation from this 8

hour shift pattern.

The Respondent submits because the Claimant was continually informed of the inability

of the Respondent to guarantee set hours on specific days, this was accepted, and he did

not suffer any detriment as a result and was well aware of his terms and conditions and

what the Respondent was able to offer in terms of hours. This was agreed on the part of

the Claimant.

The Claimant has brought a claim pursuant to The Protection of Employees (Part Time Work) Act 2001 for penalisation. The claim is that the dismissal of the Claimant

was unfair and that the dismissal of the Claimant constituted penalisation.  In the instant case, the Claimant requested a contract which stated his weekly hours and this was honoured In June 2020 wherein the Respondent guaranteed the Claimant 24 hours work per week.

A verbal confirmation was given that this would equate to 3 x 8 hour shifts, an 8 hour shift being

the normal work pattern for all production staff.

The Claimant it is submitted, is attempting to draw a causal link between his request for a contract,

which was honoured and his dismissal.  The Respondents delay in guaranteeing said hours was attributed to the uncertainty which existed  at the time for the Respondents business, due to Covid Restrictions adversely affecting the business, and the Claimant was always aware of this.

The Respondent dismissed the Claimant due to his conduct alone on the 18th June 2020 and his

refusal to follow reasonable management instruction.

CA-00038894-001 Organisation of Working Time Act 1997

The complaint was withdrawn at hearing as payment for the public holidays was paid.

CA-00038894-002  Terms of Employment (Information) Act 1994

Section 3 of the Act provides that an employer shall provide a written statement to the employee not later than two months after the commencement of the employment.  The evidence is that the Respondent in this case complied with the Act.  As I find that the Complainant was furnished with contract of employment within the first two months, I find the complaint to be not well founded.

CA-00038894-004  Protection of Employees (Part time work) Act 2001

Section 15 of the Act provides that an employer shall not penalise an employee for invoking any right of the employee to be treated, in respect of the employee’s conditions of employment, in the manner provided for in the Act.  Section 9 of the Act provides that a part-time employee shall not  be treated in a less favourable manner than a comparable full-time employee.  Penalisation is described in the Act as dismissal or unfavourable change in the employee’s conditions of employment or being subject to any other action prejudicial to his or her employment.  In this instant case, the evidence does not show that the Complainant sought his rights not to be treated in a less favourable manner than a full-time employee, nor does the evidence show that he was penalised for invoking any such rights.  I find his complaint to be not well founded.

Complaints not well founded