Complainant

Respondent

Parties

Amanda  Donoghue

Salthill Catering Company Limited Trading as Supermac's & Papa John's

Representatives

  In person

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042152-001

26/01/2021

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

CA-00042152-002

26/01/2021

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

CA-00042152-003

26/01/2021

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

CA-00042152-004

26/01/2021

The complainant was employed by the respondent as a shift manager. The complainant worked intermittently for the respondent between 2015 and 2016. The period of employment which forms the subject of the within complaints commenced in late 2016 and ended on 10th August 2020.

The complaints were submitted to the Workplace Relations Commission on 26th January 2021 and relate to an alleged unfair dismissal, and alleged breaches of the Terms of Employment (Information) Act, 1994, the Minimum Notice and Terms of Employment Act, 1973 and the Payment of Wages Act, 1991.

The respondent contends that the complainant was not dismissed and that she had made it clear to a number of staff that she was leaving her employment. The respondent outlined that the complainant was in college and was employed as a shift manager for 20 hours per week and had been employed for a number of years. The respondent stated that in advance of her time off in August 2020, the complainant had told a number of staff that she was leaving permanently and would not be returning in September 2020. The respondent confirmed that, when the complainant did seek to return to work in late August/early September 2020, she was offered alternative shifts but at different times as the shifts previously undertaken by her were no longer available.

The complainant contends that she was unfairly dismissed following her period of unpaid leave in August 2020. The complainant confirmed in evidence that she had informed her supervisor in June 2020 that she would be taking four weeks unpaid leave and that she would return on or about 27th August 2020. The complainant stated that she had been rostered to work on 27th July 2020 despite having finished up for the four weeks in question and that this had clearly annoyed her supervisor who subsequently told her that “we don’t want you back” when she attempted to return to work on 27th August 2020. The complainant acknowledged that she was subsequently offered different shifts but was not available for these due to her attendance in college.  

In complaints of unfair dismissal, the burden of proof rests with the respondent to show that the dismissal was not unfair. In the within complaint, the fact of dismissal is in dispute on the basis that the respondent contends that the complainant stated she was leaving the employment. Where the fact of dismissal is in dispute, it is for the complainant to establish that a dismissal took place and if that fact is established, it is then for the respondent to show that the dismissal was not unfair.

Both parties gave evidence at the adjudication hearing under oath/affirmation. Having considered the matter, I find that both parties gave honest and credible evidence as to their individual understandings as to the situation in respect of August 2020. The complainant’s evidence was she was on unpaid leave for four weeks and would return in late August and the respondent was clearly of the view that on this occasion the complainant had indicated to a number of staff that she was leaving her employment. 

I note that when the complainant sought to return to work there were some difficulties with her supervisor, but she was ultimately offered shifts albeit for hours that she was unavailable. This in my view supports the respondent’s position that its understanding at the time was that the complainant had left the employment and her established shifts, as claimed by her, of Friday night, Saturday night and all-day Sunday had been given to another staff member as a result. I am also of the view that the complainant was not dismissed as she was subsequently offered more shifts from 27th August onwards.

In all of the circumstances of this complaint and having considered the verbal and written submissions of the parties and the evidence given at the adjudication hearing, I do not find that the complainant was dismissed by the respondent. On the basis that no dismissal occurred, the complainant of alleged unfair dismissal is not well founded.

This complaint relates to the complainant’s assertion that she never received a written contract of employment from the respondent.

The respondent contends that the complainant did receive a written contract of employment, but it did not have a copy of same at the adjudication hearing. The respondent confirmed that it would submit a signed copy of the complainant’s contract of employment following the conclusion of the adjudication hearing.

The complainant stated that she never received a written contract of employment from the respondent. The respondent, in post hearing submissions stated that it was unable to find a signed contract of employment for the complainant.

The Applicable Law

Section 3 (1) of the Terms of Employment (Information) Act, 1994 provides as follows:

3.(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(a)…

(b)…

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) …

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, 

(g) …

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

In the absence of a signed copy of the complainant’s contract of employment, I accept, on balance that the complainant did not receive a written contract of employment. Accordingly, I find that the respondent breached Section 3 of the Terms of Employment (Information) Act, 1994.

The complaint is well founded. The respondent is directed to pay the complainant €720.00 (three week’s gross pay) in respect of the breach of the legislation.

The complainant contends that she did not receive her notice entitlements when she was dismissed by her employer in August 2020.

The respondent’s position is that the complainant left the employment in late July 2020 and had informed a number of staff that she would not be returning to her job.  The respondent’s position is that as the complainant was not dismissed, her complaint relating to notice entitlements is without merit.

The complaint relating to notice relates to the complaint of alleged unfair dismissal and the complainant’s contention that she did not receive her notice entitlements in respect of her dismissal. In complaint application CA-00042152-001 above, I have found that the complainant was not dismissed from her employment. In those circumstances, the entitlement to notice does not arise.

Having considered the matter, I find that as the complainant left her employment, her complaint in relation to not receiving notice entitlements is not well founded.

This complaint relates to a deduction of €5 per week which was taken from the complainant’s salary for the duration of her employment. The complainant stated that she was not aware of the reasons for the deduction of €5 per week as it had never been discussed with her and she had not given her written consent in advance for the deduction to be made.

The respondent stated that the deduction related to dry cleaning costs and was part of the franchise agreement in relation to all staff. The respondent stated that this was explained to the complainant at interview. The respondent accepted that it was not included in the contract of employment.

This complaint was submitted to the WRC on 26th January 2021. The cognisable period of the complaint is the six-month period immediately prior to the referral of the complaint to the WRC. On that basis the dates from 27th July 2020 - 26th January 2021 are reckonable.

The Applicable Law

Section 41(6) of the Workplace Relations Act, 2015 states as follows:

(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.

The complainant confirmed that she was absent from work for one month of unpaid leave from on or about 28th July 2020 and was not given any shifts for which she was available thereafter. On that basis the complainant has not established that there were any illegal deductions made from her salary within the cognisable period of the complaint. On that basis I find that the complaint is not well founded.

Having considered the matter, I find that the complaint is not well founded.

Unfair dismissal, dismissal in dispute, notice entitlements, illegal deductions