ADJ-00031270

Complainant

Respondent

Parties

Alexandra  De Valera

Thru The Green Coffee Company Limited

Representatives

Rosalynn McVeigh B.L. instructed by Anthony Collier Collier Law

 Kieryn Groome

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-00041629-001

20/12/2020

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

CA-00041629-002

20/12/2020

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

CA-00041629-003

20/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00041629-004

20/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00041629-005

20/12/2020

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

CA-00041629-006

20/12/2020

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

CA-00041629-007

20/12/2020

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

CA-00041629-008

20/12/2020

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

CA-00041629-009

20/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00041629-010

20/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00041629-011

20/12/2020

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

CA-00041629-012

20/12/2020

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

CA-00041629-013

20/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00041629-014

20/12/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave her evidence under oath while the respondents gave their evidence under affirmation.  Both parties were afforded the opportunity to cross examine the other.

Complaints CA-00041629-005 (Payment of Wages Act), CA-00041629-009 (Organisation of Working Time Act), CA-00041629-014 (Employment Equality Act) were withdrawn at hearing.

The complainant initially started work with the respondent on 23 July 2019 and finished her employment on 6 September 2020. She was paid €350 per week.

CA-00041629-001 (Terms of Employment Information Act, 1994)

The complainant submitted that she did not receive a written statement of her terms of at the start of her employment.

CA-00041629-002 (Terms of Employment Information Act, 1994)

The complainant submitted that she did not receive a written statement of her terms and conditions of employment following changes to her employment.

CA-00041629-003 (Organisation of Working Time Act, 1997)

The complainant submitted that she was not compensated for working Sundays.

CA-00041629-004 (Payment of Wages Act, 1991)

The complainant submitted that there were unlawful deductions from her wages in her final wage packet. She submitted that these deductions amounted to €227.50

CA-00041629-006 (Organisation of Working Time Act, 1997)

The Complainant submitted that she did not receive her paid holiday/annual leave entitlement.

CA-00041629-007 (Organisation of Working Time Act, 1997)

The complainant submitted that she did not receive her Public Holiday entitlements.

CA-00041629-008 (Organisation of Working Time Act, 1997)

The complainant submitted that she was not notified in advance of her starting and finishing times.

CA-00041629-010 (Unfair Dismissals Act, 1977)

The complainant submitted that she was unfairly dismissed from her employment

CA-00041629-011 (Safety, Health & Welfare Act, 2005)

The complainant submitted that she was penalised for raising concerns under the Safety, Health and Welfare at work Act in that she was dismissed.

CA-00041629-012 (Minimum Notice & Terms of Employment Act, 1973)

The complainant submitted that she did not receive her statutory minimum period of notice when she was dismissed.

CA-00041629-013 (Minimum Notice & Terms of Employment Act, 1973)

The complainant submitted that she did not receive all her rights during her period of notice.

Preliminary matter – Length of Service:

The respondent submitted that the complainant did not have enough service to avail of the protections of the Unfair Dismissals Acts as she was on layoff for a number of months.

Substantive Complaints:

CA-00041629-001 (Terms of Employment Information Act, 1994)

The respondent submitted that the complainant received a contract of employment at the outset of her employment in July 2019, however it noted that it was not in possession of a copy of that contract.

CA-00041629-002 (Terms of Employment Information Act, 1994)

The respondent submitted that the complainant received her amended terms and conditions in writing in email form in January 2020.

CA-00041629-003 (Organisation of Working Time Act, 1997)

The respondent submitted that in accordance with her contract of employment, the complainant’s remuneration included payment for Sunday work.

CA-00041629-004 (Payment of Wages Act, 1991)

The respondent submitted that the complainant did not work the hours required of her during her final two weeks and that she was paid appropriately, and at the correct hourly rate, for the hours she worked.

CA-00041629-006 (Organisation of Working Time Act, 1997)

The respondent submitted that the complainant was given the requisite annual leave in February and paid holiday pay of €745.12 amounting to 8% of her hours.

CA-00041629-007 (Organisation of Working Time Act, 1997)

The respondent submitted that the complainant did not return to work until after the June public holiday and that the payment for the August public holiday has already been paid to the complainant.

CA-00041629-008 (Organisation of Working Time Act, 1997)

The respondent submitted that as the complainant compiled the roster herself, she was well aware of her own start and finish times.

CA-00041629-010 (Unfair Dismissals Act, 1977)

The respondent submitted that the complainant does not have enough service to qualify to take a complaint under the Unfair Dismissals Acts in that she worked from 23 July 2019 until March 15 when she was let go due to COVID and was rehired from 8 June 2020.  The respondent also submitted that although the complainant was let go in March, she remained an employee as far as the Revenue Commissioners were concerned as it was too difficult to remove her as an employee while she was in receipt of a social welfare payment covering the period. 

The respondent submitted that the complainant was not dismissed at all but rather did not put herself onto the weekly roster.  The respondent also submitted that when this occurred it offered her work outside the container in a traffic management role.

CA-00041629-011 (Safety, Health & Welfare Act, 2005)

The respondent submitted that as the complainant was not dismissed as claimed, she was not penalised under the Act.

CA-00041629-012 (Minimum Notice & Terms of Employment Act, 1973)

The respondent submitted that the complainant did not put herself on the roster and accordingly stopped work and should not benefit from a period of notice.

CA-00041629-013 (Minimum Notice & Terms of Employment Act, 1973)

The respondent submitted that the complainant was not given nor gave a period of notice.

Preliminary Matter - Length of service:

The respondent submitted that, although the complainant was employed for more than the requisite 12 months required by the Unfair Dismissals Acts to avail of its protection, the complainant was placed on a short period of layoff arising from the Covid Pandemic and therefore did not have the length of service to qualify to take a complaint.  However, in response to a question from the Adjudicator, the respondent confirmed that at all times the complainant was on the books of the respondent as an employee.  Accordingly, I find that there was no break in service that would preclude the complainant from availing of the protection afforded by the Unfair Dismissals Acts.

Substantive Complaints:

CA-00041629-001 (Terms of Employment Information Act, 1994)

Section 41 (6) and (8) of the Workplace Relations Act state as follow:

(6) 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.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of 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.

As this complaint was made outside the six-month period envisaged by the Workplace Relations Act, and I am not satisfied that the failure to present the complaint was due to reasonable cause, I am precluded from hearing this complaint.

CA-00041629-002 (Terms of Employment Information Act, 1994)

There were two possible occasions when the complainant’s terms and conditions of work may have changed, in January 2020 when she was promoted and in June 2020 when she allegedly was rehired.  However, evidence was given that the complainant received a written note in email form regarding her terms and conditions, specifically the title and nature of her work as provided for in Section 3(1)(d) of the Terms of Employment Information Act.  As noted elsewhere, I am not satisfied that the employees contract came to an end when she was placed on layoff, and accordingly, the existing terms and conditions of her employment remained as those notified to her in January.  As the nature of her work remained the same, when she returned to work following the layoff period for COVID 19, those terms did not change in that the nature of her work remained the same.  Although the rate of payment she received post COVID Layoff may have changed, this is not encompassed by Section 3 of the Terms of Employment Information Act and as such is beyond the scope of this complaint.  I find that this complaint was not well founded.

CA-00041629-003 (Organisation of Working Time Act, 1997)

The note of the complainant’s terms and conditions is silent on whether her remuneration covers an additional premium for working Sundays. And although it was increased during her period of employment, this appears to reflect a promotion and increased responsibility rather than to reflect an additional premium for Sunday hours worked.  I note from the evidence submitted by both parties that it is difficult to ascertain how many Sunday’s the complainant actually worked.  However, it is accepted that the complainant completed some work on Sundays.  Therefore, I find that this element of the complaint was well founded. 

CA-00041629-004 (Payment of Wages Act, 1991)

Having considered the written and oral submissions from both parties, I am not satisfied that the complainant received less than she was entitled to having regard to her hourly rate and to the discussions that took place between the parties.  At the hearing, the complainant confirmed that she did not carry out her full hourly requirement during this final period of employment. The respondent confirmed that she was paid for the hours she undertook.  Accordingly, I find that this complaint was not well founded.

CA-00041629-006 (Organisation of Working Time Act, 1997)

Having considered the evidence submitted by both parties, I am satisfied that the complainant received her annual leave or payment in lieu thereof.  Accordingly, I find that this complaint was not well founded.

CA-00041629-007 (Organisation of Working Time Act, 1997)

Having considered the evidence submitted by both parties, I am satisfied that the complainant received payment for the August Public Holiday.  Accordingly, I find that this complaint was not well founded.

CA-00041629-008 (Organisation of Working Time Act, 1997)

Having considered the evidence submitted by both parties, I am satisfied that the complainant set her own start and finish times when setting the roster and was therefore aware of her own start and finish times.  Accordingly, I find that this complaint was not well founded.

CA-00041629-010 (Unfair Dismissals Act, 1977)

Having considered the written and oral evidence presented to me, I am satisfied that the complainant was employed from 23 July 2019 until 6 September 2020 and although she was on layoff from 15 March until sometime in early June, this period of layoff does not break her service.  Accordingly, the complainant is entitled to avail of the protection afforded by the Unfair Dismissals Act.

However, having considered all the written and oral evidence presented to me, I am not satisfied that the end of the employment relationship amounts to a dismissal as I am satisfied that the respondent offered the complainant an alternative position which would go some way towards answering her concerns regarding the spread of the COVID19 virus.  The complainant did not put herself on the roster and refused to take up the position offered to her (which was within the scope of her role).  In the circumstances, I find that the complainant was not unfairly dismissed.

CA-00041629-011 (Safety, Health & Welfare Act, 2005)

Having considered the evidence presented to me and my conclusion that her employment was not terminated by way of dismissal, I am not satisfied that the complainant has established that she was less favourably treated in terms of the Safety, Health and Welfare at Work Act. I find that this element of the complaint is not well founded.

CA-00041629-012 (Minimum Notice & Terms of Employment Act, 1973)

Having found that the end of the employment relationship did not amount to a dismissal, I find that the Act was not contravened.

CA-00041629-013 (Minimum Notice & Terms of Employment Act, 1973)

Having considered the evidence of both parties in relation to the ending of the employment relationship, I find that the Act was not contravened.

CA-00041629-001 (Terms of Employment Information Act, 1994)

My decision is that this complaint is out of time.

CA-00041629-002 (Terms of Employment Information Act, 1994)

My decision is that this complaint is not well founded.

CA-00041629-003 (Organisation of Working Time Act, 1997)

Arising from my finding that this complaint is well founded, my decision is to award the complainant compensation equivalent to two weeks wages (€700) which I consider to be just and equitable in all the circumstances.

CA-00041629-004 (Payment of Wages Act, 1991)

Having considered the evidence before me, my decision is that this complaint was not well founded.

CA-00041629-006 (Organisation of Working Time Act, 1997)

Having considered the evidence before me, my decision is that this complaint was not well founded.

CA-00041629-007 (Organisation of Working Time Act, 1997)

Having considered the evidence before me, my decision is that this complaint was not well founded.

CA-00041629-008 (Organisation of Working Time Act, 1997)

Having considered the evidence before me, my decision is that this complaint was not well founded.

CA-00041629-010 (Unfair Dismissals Act, 1977)

Having considered the evidence before me, my decision is that the complainant was not unfairly dismissed.

CA-00041629-011 (Safety, Health & Welfare Act, 2005)

Having considered the evidence before me, my decision is that this complaint was not well founded.

CA-00041629-012 (Minimum Notice & Terms of Employment Act, 1973)

Having considered the evidence before me, my decision is that the Act was not contravened.

CA-00041629-013 (Minimum Notice & Terms of Employment Act, 1973)

Having considered the evidence before me, my decision is that the Act was not contravened.

Organisation of Working Time, Unfair Dismissal, Payment of Wages, not well founded, Minimum notice, no contravention