Complainant

Respondent

Parties

Shauna  Cumiskey

Nibeck Limited Adfuels ( Daybreak)

Representatives

  N/A

N/A

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-00046006-003

08/09/2021

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

CA-00046006-005

08/09/2021

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

CA-00046006-006

08/09/2021

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

CA-00046006-007

08/09/2021

The Complainant was employed as a Shop Assistant with the Respondent from 23 June 2021 to 23 August 2021. She stated that she was not notified in writing of a reduction in her working hours, that she did not receive her minimum notice entitlements and that she was treated less favourably than other part-time employees.

The Complainant stated that she was not notified in writing of a reduction in her working hours. Specifically, she stated that her hours were reduced from eight hour shifts, five to six days per week to four hour shifts, four days per week.

The Complainant also stated that she did not receive her minimum notice entitlements and asserted that she was entitled to one week’s notice payment.

The Complainant also alleged that she was treated less favourably than other part-time employees because, unlike hers, their hours were not reduced.

The Respondent accepted all of the Complainant’s evidence but also asserted that there were no breaches of the Acts in respect of any of the complaints.

CA-00046006-003:

The Law

Section 5 of the Terms of Employment (Information) Act 1994

(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.

Analysis

The Complainant acknowledged receipt of her contract of employment but stated that her working hours were cut and that she did not receive any notification of this change in writing.  Specifically, she alleged that her hours were reduced from eight hour shifts, five to six days per week to four hour shifts, four days per week.

Having reviewed the Complainant’s contract of employment however, I note that it is stated therein that she is required to work a minimum of 15 hours per week. Given that she always worked at least four hour shifts, four days per week, namely 16 hours, and that this exceeded the minimum 15 hours stipulated in her contract of employment, I find that there was no requirement of the Respondent to notify her in writing of any change in her hours.

CA-00046006-005:

The Law

Section 4 of the Minimum Notice and Terms of Employment Act 1973 states as follows:

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week, (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks, (c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, (d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks, (e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Analysis

In the instant case, the Complainant was employed by the Respondent for a period of 2 months. Although she asserted that she was entitled to a notice payment of 1 week in respect of the termination of her employment, I find that in accordance with section 4(1) of the Act as set out above, she is not entitled to any such payment.

CA-00046006-006:

The Law

Sections 7(2) and 7(3) of the Protection of Employees (Part-Time Work) Act, 2001 states as follows:

7(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—

(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

( b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.

(3) The following are the conditions mentioned in subsection (2)—

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

Section 9 (1) and 9(2) of the Protection of Employees (Part-Time Work) Act, 2001 states as follows:

9(1) Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

Analysis

The Complainant stated in her evidence that she was treated less favourably than other part-time employees because her hours were cut while their hours were not reduced. She did not present evidence of any comparable full-time employee however and in the absence of same, I cannot find that this complaint is well founded.

CA-00046006-007:

The Complainant acknowledged that she received her full holiday pay entitlements after she referred her complaint to the WRC and accordingly this complaint was withdrawn.

CA-00046006-003:

This complaint is not well founded for the reasons set out above.

CA-00046006-005:

This complaint is not well founded for the reasons set out above.

CA-00046006-006:

This complaint is not well founded for the reasons set out above.

CA-00046006-007:

This complaint was withdrawn.