Complainant

Respondent

Parties

Ciara  O'Connor

Moylurg Rockingham DAC Ltd. t/a Lough Kee Forest Park

Complainant

Respondent

Anonymised Parties

Representatives

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-00035596-001

06/04/2020

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

CA-00035596-002

06/04/2020

The claimant was employed as a waitress with the respondent company commencing on the 24.06.2019. She submitted the respondent was in breach of the Act for failing to furnish her with a written statement in writing of her terms of employment and for failing to notify of changes to  her terms of employment in the context of continuity of employment. The respondent denied the complaint and submitted there was no breach of the Act and that the complaint was out of time as the claimant had not worked with the respondent since the 30thAugust 2019.

The claimant made the following submissions:

I started work with Moylurg Rockingham DAC Ltd t/a Lough Key Forest and Activity Park on 24th June 2019 and did not receive a fixed term contract. I was told by Ms F that they hoped to see me through college with summer and part-time work through the year, at that stage I was just after completing my 1st year in college with three more to go. I worked hard, carried out all duties as requested and was flexible about working extra shifts when asked as I was delighted to have a job that was local to me and would allow me to earn money during holidays from college and on occasions during the college term. At times during my employment Ms. F approached me about how I was getting on and I found her pleasant and approachable so on one occasion I made her aware that one of my colleagues was not carrying her weight and that I was finding it difficult to do all the carrying and clearing of tables while some of my colleagues stood around chatting and laughing. I became upset and she assured me that I would see that it was the good workers that would be getting the work in the future and at weekends and, for the remainder of that day the supervisor did try to get the other worker to do some work to share the burden so I felt confident that I had handled the situation appropriately and that my work efforts would result in me getting work going forward.

 To give an idea of the volume of work I was doing my phone regularly recorded in excess of 15,000 steps during a shift. I have no difficulty working and prefer to be busy rather than standing around and am only making this point to stress the fact that there was no reason for me to be singled out for the treatment I subsequently received, that is no work, no contract etc. During my time there I seen people come in late, hungover etc. and be treated kindly so never thought for one minute that there was any issue with me as I am a diligent worker, good timekeeper, courteous etc.

 During my time working we were asked to indicate if we were finishing up at the end of the season or if we were available for work during the year. I indicated that I was available for work during the year and subsequently confirmed this by email to Ms. F that I could do Saturdays and couldn’t do Sundays as I would be travelling back to NUIG. (see Appendix A) I received an email from Ms. RW noting my availability (see appendix B). I took them at their word and held out hope that as the months moved on that there would be availability at Christmas or on the odd Saturday and heard nothing more, so assumed that staff who had been there longer than me were getting the opportunities and that I would have to wait until the new season started around Easter. I was still listed on the rota each week as being off requested for the Sundays. However, I then noticed that 3 new staff had been taken on in early September and that they were getting to work on Saturdays despite me being available and that everyone else who I had worked with during the summer and had selected that they were available for the Autumn/Winter/Spring were all getting work, even the colleague I had raised the issue about was getting lots of shifts. (I have copies of all the rotas showing me on them and, also showing the new people they took on and gave shifts to despite they told me they had no Saturdays available, or as they are now saying that I was not even an employee at that stage. I am not including them as I am unsure of GDPR relating to sharing them).

 It was at this stage I submitted my claim to the WRC as it was then clear that I was being specifically excluded and had been misled by management at the centre that I would be getting work. This is the reason my submission did not go in September as Ms. F suggests it should have, as at that point I was not given any reason to believe that the employment had ended or that there was some reason that I was going to be singled out to get no shifts. I have found the whole situation very distressing to be treated this way and feel extremely upset but feel I must take a stand when employment law states quite clearly how employees should be treated. Had I been told that my employment was being ended or given a fixed term contract I would have known where I stood instead of waiting patiently to get work with Lough Key Forest Park. With the pandemic the situation has been further exacerbated as I was left with little alternative employments to apply for last summer and failed to get a summer job, and with getting no shifts at all with Lough Key Forest Park in 2020 I was ineligible to sign for the PUP as all my colleagues could do and continue to do so even as fulltime students. To this day I remain registered with Moylurg Rockingham DAC Ltd t/a Lough Key Forest and Activity Park as an employee on the revenue site. If my work was finished with them why did they not cease the employment on revenue and issue me with a letter telling me why I was finished? I feel most aggrieved by the way Moylurg Rockingham DAC Ltd t/a Lough Key Forest and Activity Park have treated me. If they had a problem with me or wanted to terminate all dealings with me, they should have done so through the appropriate methods and not flouted employment law to get at me for whatever it is they deemed I did or did not do.

The claimant said that she was advised that she would get summer work and part time work during the year which suited her student status. She reported that she had been asked during the year about her availability to work off season and she confirmed this in writing to the respondent – the email was submitted in evidence – she reported to the respondent that she could work on Saturday but not on Sundays as she would be travelling back to college on Sundays. The complainant received no further offer of work and believed that this may have been related to a complaint she had made about a colleague. The respondent replied to the claimant’s email noting her availability for work and indicating that at that time they had cover for Saturdays but were short on Sundays. The complainant stated that according to revenue records she was still an active employee.  She asserted  her employment had never been terminated. She contended that she had never been furnished with a contract.The claimant hoped that she would get work at Christmas or on the odd Saturday but heard nothing more. She assumed that workers who had longer service than her were getting first priority on available work. She submitted that she discovered in late 2019 that new staff were taken on and they were being assigned Saturday work despite her having indicated her availability. She observed that everyone else she had worked with during the summer continued to get work. She was asked again in February 2020 to indicate her availability. The respondent replied that they had enough staff and no offer of a summer job was made to her. She asserted that she was very badly treated and she did not pursue her case earlier as she had been given no notification or indication that her employment had ended. A sheet was placed on the notice board in August 2019 inviting her to indicate her availability and she responded on the 9th.Sept. 2019. As Christmas approached the complainant noticed new names appearing on the roster who were scheduled for Saturday work. She still held out hope that she would obtain work and a further notice was issued on the 31st.January 2020 inviting workers to indicate their availability for work. The complainant replied on the 9th.February via text message as she had not seen the original notification as she had not been in for any shifts, indicating her availability for work. On the 13th February, her supervisor responded to the effect that she – the supervisor - had been away “sorry for the late response -I have been away .We are fully covered for staff right now. I had enough responses in January. I’ll let you know when things change”. Even though the claimant was taken off the roster in February, she held out some hope of getting further work. She remained listed on the payroll until July 2020.The claimant lodged her complaint with the WRC on the 6th.April 2020. By this point she believed she would no longer be offered further work.

The complainant advised that at the initial interview the respondent indicated that as well as summer work, there may be further work opportunities over the autumn winter period.

The respondent submitted as follows :

 The case in front of you today which I am defending is regarding Ms. O’Connor Vs Moylurg Rockingham DAC Ltd t/a Lough Key Forest and Activity Park under adjudication file number ADJ – 00028009 complaint reference number CA – 00035596. The first complaint falls under Terms and Conditions of Employment – ‘I did not receive a statement in writing on my terms of employment.’ The second complaint falls under Terms of Employment – ‘I was not notified in writing of a change to my terms of employment.’

By way of background, Lough Key Forest and Activity Park offers the public 800 acres of parkland and forests. Guests can experience the Visitor Centre, Moylurg Room, Lakeside Café, Caravan Park, Marina and Park.

Ms. O’Connor commenced her employment with Lough Key Forest and Activity Park on 24th June 2019, and she was hired on a fixed-term arrangement as a Café Attendant/Visitor Centre Attendant at the Lakeside Café. Ms. O’Connor received a written job offer on the 14th June 2019 (Appendix 1) which clearly outlined that she was being hired from a period of June 2019 to September 2019 with a provision that if it was mutually agreeable by both parties, this may be extended. However, it should be noted that Ms. O’Connor’s last day of employment with the Company was 30th August 2019 as she was unavailable to work the shifts we required, meaning this claim is out of date. Furthermore, no reasons were put forward as to why this case was filed late. Therefore, we strongly object to this case proceeding, as it is Out of Date.

This claim by Ms. O’Connor is Out of Date as her last date of employment with the Company was 30th August 2019. Even where we apply the end of September 2019 as per the job offer letter, her claim is Out of Date. Therefore, I object to any proceedings in relation to this matter.

The respondent asserted that the complaint was out of time and accordingly could not proceed and no reason had been advanced for the delay in making the complaint. It was submitted that there had been no guarantee of hours and that the respondent had erred in not furnishing the claimant with a contract of employment. It was advanced that when the claimant started in June the respondent was unsure about the prospect of ongoing work. It was submitted that if the claimant had got a contract it would have specified work up to September. The respondent described the employment as being on a casual basis. When the company was looking at availability for 2020, when it was submitted “we try to bring them back” –  it was contended that it was 16 days before the complainant replied . It was submitted there was no guarantee in the letter of offer furnished to the complainant of work after September. It was submitted that all students have differing arrangements and that was why no specific date was spelled out in the documentation. The respondent acknowledged a letter was sent out to staff – as far as the company were concerned the complainant was no longer an employee. While Covid hit in March 2020, the payroll ran until the end of December. There was no communication from the claimant and she continued on the payroll until the 3rd.December in case her availability changed. Some people finished and some had higher availability during the course of the year. The respondent asserted that they had no issue with Ciara and enjoyed a good relationship. She asked why the complainant had not made contact with her .It was contended that there were 2 sides to every story.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.

In the latter of offer of the 14th.June 2019 , the claimant was advised “ It will be a fixed hours contract commencing in June 2019 and ending on date agreed in Sept. 2019.The hours may be extended beyond this date subject to work being available and if that suits both yourself and MRD….Within 2 months of your commencement date , a statement of main terms applicable to this post will be supplied to you”.

The claimant commenced employment on the 24th.June 2019.Her last day at work was the 30th.August 2019.She was asked to indicate her availability for work during the Autumn / Winter period and assumed she would get further work as her employment was never terminated. She learned in February 2020 that her colleagues had been getting further work but she was being excluded even though she was still on the roster.

The complaints were received by the WRC on the 6th.April 2020.She complained she got no written statement – which is not contested by the respondent and that the failure to notify her that her employment was terminated was a breach of Section 5 of the Act.

The claimant contended that the reason for the delay in making the complaint arose because she was unaware that her employment was terminated and assumed that she would get further seasonal work. The respondent has accepted that the complainant was invited to indicate her availability for work in January 2020 – but by the time she indicated her availability in February 2020 – the positions had been filled by workers who had replied immediately to the notice. The claimant did not have ready access to the notifications as she had not been offered any work. The documentation presented by the claimant indicate that she was removed from the roster the week commencing the 10th.February 2020.

Preliminary Matter of Time Limits:

The claimant’s complaints were received by the WRC on the 6th.April 2020.The respondent has argued that the complaints are out of time as the claimant’s last day at work was the 30th.August 2019.The claimant asserted that she had an expectation of ongoing work on foot of the initial interview she had and the fact that she had been invited to indicate her availability for work through the rostering system on the 9th.September 2019 and the 31st.January 2020.She had responded on both occasions and throughout this time she continued to be listed on the roster until she was removed on the 10th.February 2020.In these circumstances,  I have concluded that the complainant was on lay off during the intervening period between the last day of employment i.e. the 3oth.August 2019 and the 10th.February 2020 when she was removed from the roster .This employee – while on lay off had not had her contract terminated – cf Farrell v Farcourt Foods Ltd. UD 610/1989 ; Crampton v Butlers Engineering International Ltd (In Receivership)UD 599-605/1995 and McElarneyv QMI Ltd.UD 141/1992. Accordingly I am satisfied the complaint is in time and I have jurisdiction to investigate the complaint.

It is not disputed that owing to an administrative error the complainant was not furnished with a written statement of her terms and conditions of employment and accordingly I find there was a breach of Section 3 and I uphold the complaint. I require the respondent to pay the complainant 4 weeks pay for this breach of the Act.

I accept the claimant’s evidence that  she remained uncertain and unclear about her employment status until February 2020 when she received a text from her supervisor advising that the respondent was fully covered for staff right now. Section 3 of the Act requires that the written statement specifies “ in the case of a temporary contract of employment , the expected duration thereof or if the contract is for a fixed term , the date on which the contract expires”. However, as the complainant was never furnished with a written statement , I am obliged to find that the complainant has no remedy under  Section 5  of the act.

I uphold the complaint of a breach of Section 3 and require the respondent to pay the complainant compensation amounting to 4 weeks pay. Because the claimant was not furnished with a written statement, I am obliged to find that the complainant  has no remedy with respect to a breach of Section 5 under the Act.