ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031033
Parties:
| Complainant | Respondent |
Parties | Jennifer Mackey | Skycrest Ltd T/A Alex Findlater & The George Hotel |
Complaint:
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-00041462-001 | 07/12/2020 |
Date of Adjudication Hearing: 09/09/2021
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant’s complaint is that she was penalised for asserting her rights under the Organisation of Working Time Act 1997 in respect to working hours. |
Summary of Complainant’s Case:
The Complainant stated that she worked as a Pastry Chef for 3 years on a 40 hour week from 8th January 2018. She generally worked five days on and two days off. Following a period of layoff due to Covid, she returned to work in late November 2020. Three days after she returned, she received her roster for the following week which had the usual hours on it. She then received a phone call from the Head Chef in which she told the Complainant that they needed someone reliable to work 7 days a week in December 2020. The Complainant then told the Head Chef that she was willing to work an extra day here and there but 7 days would be ‘a bit much’. The Complainant stated that she then received a text from the Head Chef saying “will let you know as soon as something comes up”. When the Complainant replied “Do you still want me in December?”, the reply was “No, take it off”. The complainant was given no hours the following two weeks. She contends that because she would not agree to work a 7 day week, she was penalised by the Respondent. |
Summary of Respondent’s Case:
A statement was submitted by the Respondent and evidence given by the HR and Group Payroll Manager that on 30 November 2020 the Head Chef gave the Complainant her work roster for the following week and felt that the Complainant did not want to return to work having been on the P.U.P. during Covid. The Respondent made many attempts to meet with the Complainant to try and resolve matters but the Complainant refused saying she would not return to work pending her WRC case. The Complainant eventually resigned in July 2021. Evidence was given by the Head Chef that when the business opened up in late November after Covid closure, December was going to be a busy period. She gave the complainant her roster with the usual 5 over 7 days on 30 November 2020. She rang the complainant just after to have a general chat about how busy it would be in the coming weeks. She denies that she requested the Complainant to work 7 days a week. She stated that she would never expect any employee to work 7 days a week.
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Findings and Conclusions:
The applicable law Section 26 of the Act provides: “26. –(1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act”. Section 13 (2) of the Organisation of Working Time Act 1997 provides: “13-(2) Subject to subsection (3) an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.”
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There was a conflict of evidence in this case where the witness for the Respondent stated that she did not ask the Complainant to work for 7 days each week in December 2020. The Complainant, on the other hand stated that she did require her to so work. The Complainant submitted text messages in evidence to show that after she objected to working 6 or 7 days a week in December she was told to take December off. I note that the Complainant was given no work for the first two weeks in December 2020. On 13th December, after she submitted her complaint to the WRC on 7th December 2020, she was contacted by the Respondent to come back to work. I conclude that by telling the Complainant to take December off, thereby depriving her of her livelihood immediately after she objected to working excessive hours, the Respondent did penalise the Complainant.
I find the complaint to be well founded.
Decision:
Under Section 27 (3) of the Act, I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the compensatory sum of €1,096 equivalent to two weeks pay.
Dated: 26th October 2021
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Organisation of Working Time Act 1997, penalisation. |