ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00038034
Parties:
| Complainant | Respondent |
Parties | Mark Fleming | Mystify Limited t/a Look Mam No Hands Restaurants |
Complaints:
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-00049488-003 | 03/04/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00049488-004 | 18/10/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00049488-005 | 18/10/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00049488-006 | 18/10/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00049488-007 | 18/10/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049488-008 | 18/10/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049488-009 | 09/11/2022 |
Date of Adjudication Hearing: 09/11/2022
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the Parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant attended the Hearing in person. Mr. Barry Drumm, a Director of the Respondent, attended the Hearing in person, on behalf of the Respondent. Ms. Ashling Sherwin, an Area Manager of the Respondent also attended in person. Neither Party had legal representation. The Hearing was held in public. Both Parties provided written and oral submissions. Both Parties gave evidence under oath. Full cross examination of both Parties was allowed. Following enquiry, the Respondent advised on its correct name which is incorporated into the Decision.
Background:
On 13 September 2021, the Complainant commenced employment with the Respondent, until his dismissal on 15 April 2022. On 3 April 2022, the Complainant submitted an online Complaint Form to the Workplace Relations Commission (the “WRC”). He stated that he was not notified in writing of a change to his terms of employment concerning his work hours, contrary to the Terms of Employment (Information) Act 1994. This complaint was allocated the reference number CA-00049488-003. On 18 October 2022, the Complainant raised five further complaints in his filed written submissions entitled “Statement”. The Respondent had the opportunity to consider each of these complaints and provided written responses on 21 October 2022 and 2 November 2022. The Complainant’s five further complaints were: · A complaint that he did not receive sufficient detail in his contract, resulting in a failure to provide a statement of his core terms in writing, contrary to the Terms of Employment (Information) Act 1994. This complaint has been allocated the reference number CA-00049488-004; · A complaint that he did not receive an employee handbook, resulting in a failure to provide a statement in writing on his terms of employment, contrary to the Terms of Employment (Information) Act 1994. This complaint has been allocated the reference number CA-00049488-005; · A complaint that he was not notified in writing of a change to his terms of employment concerning his pay, contrary to the Terms of Employment (Information) Act 1994. This complaint has been allocated the reference number CA-00049488-006; · A complaint that he did not receive his correct pay, contrary to the Payment of Wages Act 1991. This complaint has been allocated the reference number CA-00049488-007; and · A complaint that he did not receive breaks, contrary to the Organisation of Working Time Act 1997. This complaint has been allocated the reference number CA-00049488-008. On 9 November 2022, during the Hearing, the Complainant raised a seventh complaint. This complaint concerned the alleged non-receipt of his public holiday entitlements over the course of his employment, contrary to the Organisation of Working Time 1997. The Respondent provided documentation relevant to this complaint under cover of emails dated 30 November 2022 and 5 December 2022. This complaint has been allocated the reference number CA-00049488-009. Preliminary Issue – Time Limits: The Parties had not addressed the issue of time limits in their written submissions. Further, the Complainant had not sought an extension of the time limits for reasonable cause. At the outset of the Hearing, I raised this issue with the Parties and invited oral submissions. I explained that under section 41 of the Workplace Relations Act 2015, a complaint must generally be presented within six months. I asked the Complainant why he delayed in submitting his complaints and whether he could show reasonable cause for any delay. I indicated that, where relevant, I would address the issue of time limits regarding each complaint in the Decision. After a short adjournment, I also indicated that I would address the Complainant’s latest complaint, CA-00049488-009, raised for the first time during the Hearing, in the Decision. Evidence: During the Hearing there was a dispute between the Parties regarding the admissibility of unsigned witness statements proffered by the Respondent. As the relevant witnesses were not providing oral evidence at the Hearing, the unsigned witness statements were not admitted into evidence. |
Summary of Complainant’s Case:
Preliminary Issue – Time Limits: The Complainant asserted that the submission of his Complaint Form on 3 April 2022, which outlined only his first complaint (CA-00049488-003), was sufficient to render his later complaints on time. I indicated to the Complainant that his first complaint submitted on 3 April 2022 was very specific and distinct from his later complaints. The Complainant again asserted that the submission of his first complaint on 3 April 2022 rendered his later complaints on time. Substantive Issues: The Complainant received his contract of employment on 6 September 2021 and commenced employment as a Floor Manager on 13 September 2021. The Complainant outlined that he received a dismissal letter dated 8 April 2022 and that his employment came to an end on 15 April 2022. CA-00049488-003: Complaint under the Terms of Employment (Information) Act 1994: The Complainant submitted that he was required to work a Saturday in early April 2022 and that he was not given the “reason of emergency” for this. In particular, the Complainant relied on email exchanges with the Respondent dated 2 to 4 April 2022. In his Complaint Form, the Complainant stated that he had seen three further weekly rosters which indicated that he would have to work Saturdays. The Complainant outlined that he was unable to work weekends. The Complainant submitted that this was a change to the terms of his employment concerning his work hours, about which he had not been notified, contrary to the Terms of Employment (Information) Act 1994. CA-00049488-004: Complaint under the Terms of Employment (Information) Act 1994: The Complaint submitted that his contract did not include the full name of his employer, the full address of his employer/place of work, or the expiry date of his contract. This was an alleged failure by the Respondent to provide a statement of his core terms in writing, contrary to the Terms of Employment (Information) Act 1994. CA-00049488-005: Complaint under the Terms of Employment (Information) Act 1994: The Complainant further submitted that he did not receive an employee handbook. The Complainant outlined that this was the responsibility of the Respondent and that it was not for him to raise this matter with management. This was an alleged failure by the Respondent to provide a statement in writing on his terms of employment, contrary to the Terms of Employment (Information) Act 1994. CA-00049488-006: Complaint under the Terms of Employment (Information) Act 1994: The Complainant outlined in his written submissions that he was not notified in writing of a change to his terms of employment concerning his pay, contrary to the Terms of Employment (Information) Act 1994. In particular, the Complainant relied on an email which he received from the Respondent dated 30 March 2022. Under cross-examination, the Complainant accepted that his pay queries were addressed and that there had been no change to his pay requiring notification. The Complainant then withdrew this complaint. CA-00049488-007: Complaint under the Payment of Wages Act 1991: The Complainant submitted that more than once, he had to contact the Respondent concerning his receipt of incorrect pay, contrary to the Payment of Wages Act 1991. Under cross-examination, the Complainant accepted that his pay queries were addressed and that he had received his full pay. The Complainant then withdrew this complaint. CA-00049488-008: Complaint under the Organisation of Working Time Act 1997: The Complainant submitted that he did not receive his full 30-minute break every day, contrary to the Organisation of Working Time Act 1997. The Complainant could not specify on which days he did not receive his full break but maintained that this happened most days. The Complainant submitted that he no longer had access to the “Deputy” employee rostering application which recorded breaks and which would, he believed, support his complaint. He submitted that he usually took a 15-minute lunch break and two separate cigarette breaks each day. He did not believe that his two cigarette breaks amounted to 15 minutes in total per day. CA-00049488-009: Complaint under the Organisation of Working Time Act 1997: The Complainant outlined that he did not receive his public holiday entitlements over the course of his employment, contrary to the Organisation of Working Time 1997. He maintained that this applied to four public holidays, the most recent being 18 March 2022. This public holiday was marked as a day of remembrance and recognition for those who died and worked throughout the Covid-19 pandemic.
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Summary of Respondent’s Case:
Substantive Issues: CA-00049488-003: Complaint under the Terms of Employment (Information) Act 1994: The Respondent submitted that asking the Complainant to work on a single Saturday was not tantamount to changing the terms and conditions of his employment. The Respondent said that this was a one-off occurrence and that it was provided for under the terms of the Complainant’s contract of employment. In its cross-examination of the Complainant, the Respondent disputed that the Complainant had sight of three further weekly rosters, as rosters were only provided one week in advance. CA-00049488-004: Complaint under the Terms of Employment (Information) Act 1994: The Respondent submitted that that the Complainant received his contract on 6 September 2021 and commenced employment on 13 September 2021. The Respondent accepted that the contract did not contain the full name of the employer or the full address of the employer/place of work. The Respondent submitted that its’ contracts have since been amended to reflect these details. The Respondent outlined that that the Complainant was employed on the basis of a permanent contract. CA-00049488-005: Complaint under the Terms of Employment (Information) Act 1994: The Respondent submitted that the Complainant received the employee handbook but accepted that this could not be proved as the Complainant’s signature was not obtained on receipt. CA-00049488-008: Complaint under the Organisation of Working Time Act 1997: The Respondent submitted that, on some days, the Complainant took multiple cigarette breaks. The Respondent further submitted that the Complainant had full control over his breaks and that he could take breaks whenever he wanted. The Respondent submitted that procedures were now in place to ensure that employees took their full breaks. CA-00049488-009: Complaint under the Organisation of Working Time Act 1997: The Respondent submitted that it would be necessary to review the relevant paperwork to check whether the Complainant received his public holiday entitlements. On 30 November 2022 and 5 December 2022, the Respondent reverted to the WRC with documentation evidencing that it had now paid the Complainant for the four public holidays in question.
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Findings and Conclusions:
Withdrawn Complaints: CA-00049488-006: Complaint under the Terms of Employment (Information) Act 1994: Under cross-examination, the Complainant accepted that his pay queries were addressed and that there had been no change to his terms of employment concerning his pay. The Complainant then withdrew this complaint during the Hearing. CA-00049488-007: Complaint under the Payment of Wages Act 1991: Under cross-examination, the Complainant accepted that his pay queries were addressed and that he had received his full pay. The Complainant then withdrew this complaint during the Hearing.
Preliminary Issue – Time Limits: The Law: Section 41(6) of the Workplace Relations Act 2015 provides: “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” Section 41(8) provides: “an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”. The established test concerning reasonable cause was formulated by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) Limited v. Carroll, DWT0338: “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.” In Globe Technical Services Limited v. Kristin Miller, UDD1824, the Labour Court noted: “It is settled law that ignorance of one's legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.” Application: The Complainant asserted that the submission of his Complaint Form on 3 April 2022, which outlined only his first complaint (CA-00049488-003), was sufficient to render his later complaints on time. However, this is not correct. As the Labour Court found in Globe Technical Services Limited v. Kristin Miller (UD/17/177), ignorance of the law cannot be relied upon to provide an excuse for the delay. The Complainant has therefore not shown reasonable cause to empower me to entertain his later complaints pursuant to section 41(8) of the Workplace Relations Act 2015. CA-00049488-004: Complaint under the Terms of Employment (Information) Act 1994: Pursuant to section 41(6) of the Workplace Relations Act 2015, the Complainant has six months from the date of his dismissal in which to bring a complaint regarding a failure to provide a statement of his core terms in writing, contrary to the Terms of Employment (Information) Act 1994. The Complainant was dismissed on 15 April 2022. The Complainant first raised this complaint in his written submissions entitled “Statement”, filed on 18 October 2022. Therefore, pursuant to section 41(6) of the Workplace Relations Act 2015, I shall not entertain this complaint which is out of time and consequently not well founded. CA-00049488-005: Complaint under the Terms of Employment (Information) Act 1994: Pursuant to section 41(6) of the Workplace Relations Act 2015, the Complainant has six months from the date of his dismissal in which to bring a complaint regarding a failure to provide a statement in writing on his terms of employment, contrary to the Terms of Employment (Information) Act 1994. The Complainant was dismissed on 15 April 2022. The Complainant first raised this complaint in his written submissions entitled “Statement”, filed on 18 October 2022. Therefore, pursuant to section 41(6) of the Workplace Relations Act 2015, I shall not entertain this complaint which is out of time and consequently not well founded. CA-00049488-008: Complaint under the Organisation of Working Time Act 1997: Pursuant to section 41(6) of the Workplace Relations Act 2015, the Complainant has six months from the date of contravention in which to bring a complaint regarding a failure to provide breaks. The Complainant was unable to specify the exact dates of the alleged contraventions. According to the dismissal letter, the Complainant’s last day in the workplace, and therefore the most recent possible date of contravention was 8 April 2022. The Complainant first raised this complaint in his written submissions entitled “Statement”, filed on 18 October 2022. Therefore, pursuant to section 41(6) of the Workplace Relations Act 2015, I shall not entertain this complaint which is out of time and consequently not well founded. CA-00049488-009: Complaint under the Organisation of Working Time Act 1997: Pursuant to section 41(6) of the Workplace Relations Act 2015, the Complainant has six months from the date of contravention in which to bring a complaint regarding a failure to provide a public holiday entitlement. The Complainant alleged that the most recent date of contravention took place on 18 March 2022. The Complainant first raised this complaint during the Hearing on 9 November 2022. Therefore, pursuant to section 41(6) of the Workplace Relations Act 2015, I shall not entertain this complaint which is out of time and consequently not well founded.
Substantive Issue: The Terms of Employment (Information) Act 1994: CA-00049488-003: Complaint under the Terms of Employment (Information) Act 1994: The Law: Section 5 of the Terms of Employment (Information) Act 1994 states: “—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— (a) 1 month after the change takes effect, or (b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure. (2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute, other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.” Application: The Complainant submitted that from early April 2022, he was required to work Saturdays. He said that this change was outlined in three further weekly rosters, which were not produced in evidence. These rosters were also not referred to in the Complainant’s contemporaneous emails to the Respondent. The Respondent submitted that the Complainant was only asked to work one Saturday as a one-off occurrence and that this was not a permanent change to the Complainant’s work hours. The Respondent’s position was that rosters were only provided one week in advance. Even if it were accepted that a change had occurred to the Complainant’s work hours, the Respondent had one month in which to notify the Complainant in writing. As the Complainant was dismissed on 15 April 2022, this one-month period had not elapsed and so the complaint is not well founded.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00049488-003: Complaint under the Terms of Employment (Information) Act 1994: I decide that this complaint is not well founded. CA-00049488-004: Complaint under the Terms of Employment (Information) Act 1994: I shall not entertain this complaint which is out of time and consequently not well founded. CA-00049488-005: Complaint under the Terms of Employment (Information) Act 1994: I shall not entertain this complaint which is out of time and consequently not well founded. CA-00049488-006: Complaint under the Terms of Employment (Information) Act 1994: The Complainant withdrew this complaint. CA-00049488-007: Complaint under the Payment of Wages Act 1991: The Complainant withdrew this complaint. CA-00049488-008: Complaint under the Organisation of Working Time Act 1997: I shall not entertain this complaint which is out of time and consequently not well founded. CA-00049488-009: Complaint under the Organisation of Working Time Act 1997: I shall not entertain this complaint which is out of time and consequently not well founded.
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Dated: 16/12/2022
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Key Words:
Terms of Employment (Information) Act 1994, Workplace Relations Act 2015, Time Limits, Reasonable Cause. |