Complainant

Respondent

Parties

Gary  Lee

Homesavers Cents 7 Stores

Representatives

Barry Crushell Crushell & Co Solicitors

Rachel Duffy B.L. instructed by Sarah Treacy Solicitor (Inhouse)

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-00042540-001

16/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00042540-002

16/02/2021

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

CA-00042540-003

16/02/2021

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

CA-00042540-004

16/02/2021

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 and two witnesses for the respondent (the Area Manager and the HR Director) gave evidence under affirmation.  The parties were enabled to cross examine the witnesses.

The respondent operates retail outlets.  The employees final date of employment was 23 January 2021.

CA-00042540-001 Terms of Employment

The complainant submitted that his terms and conditions of employment were only provided to him on 11 January 2021 some eight months after he began work with the respondent.

CA-00042540-002 Protection of Employees (Fixed Term Work)

The complainant submitted that he was dismissed without any explanation of the causes of his termination.  He was not given prior written notice of any of the issues to be addressed.  He was not subject to any formal performance or disciplinary issues.  He submitted that he was not subject to any formal or informal guidance nor was he informed that he would be dismissed.  He did not receive a minute of the meeting and was not given any subsequent record of the meeting.

The complainant submitted that the respondent would not have treated any comparable permanent employee in such a disrespectful manner.  The complainant submitted that general procedures of fairness should be adhered to if dismissals are to be justified.  The complainant submitted that there was a total absence of fair process or fair procedure in respect of the dismissal of the complainant.

The complainant submitted that none of the usual practices were followed in relation to him and that the process underpinning his dismissal were entirely unfair and unjust.

CA-00042540-003 Minimum Notice

The complainant submitted that he was entitled to a period of notice.  It was further submitted that the complainant was told to leave the premises immediately and was afforded no notice. 

The complainant submitted that when he tried to ascertain the figures allegedly paid for notice, it was confusing as to the notice period and that he was given no notice or payment in lieu of notice.

CA-00042540-004 Payment of Wages

The complainant submitted that an employer must pay the wages that are properly payable to an employee and that there was da deficit or shortfall in the amounts owing to the complainant.

CA-00042540-001 Terms of Employment

The respondent submitted that the complainant was at all times in receipt of his terms and conditions of employment and that any delay in forwarding assigned version of his contract was due to delay on the complainant’s part. 

The respondent submitted that the complainant was provided with a document detailing his terms and conditions at the beginning of his employment and submitted a document dated 24 April 2020 which it indicated took effect from the start of his employment on 27 April 2020.  The complainant signed this document.  The respondent submitted that the complainant was also issued with an employee handbook at that stage. 

The respondent submitted that upon the extension of his fixed term contract, the complainant was issued with an additional contract on 27 October 2020, which he signed and returned on 11 January 2021.  The respondent submitted that his terms and conditions remained as provided to him at the start of his employment.

CA-00042540-002 Protection of Employees (Fixed Term Work)

The respondent submitted that an essential starting point of a claim under this Act is the identification of and evidence from a comparable permanent employee as to how they would or have been treated differently.  The respondent submitted that the complainant has failed, refused and/or neglected to identify such a comparable employee, instead simply asserting that the company would not have treated a comparable permanent employee in such a disrespectful manner.  The respondent also submitted that the complainant has failed to identify a condition of employment for the purposes of any such comparison.

The respondent submitted that it appears from the complainant submissions that it is his claim that he was treated less favourably in how his employment was brought to an end.  The respondent submitted that the complainant has failed to adduce any evidence to show that a permanent employee would have been treated differently.

The respondent submitted that the complainant seeks to advance a claim that his dismissal was unfair and that this is inappropriate in circumstances where he does not and could not advance a claim under the Unfair Dismissals Acts 1977.

CA-00042540-003 Minimum Notice

The respondent denied that it did not give the complainant notice submitted that he was given notice on 15 January 2021 by his area manager.  The respondent submitted that the complainant was due to be on pre-arranged annual leave the following week. 

The respondent submitted that as the complainant left work before his holidays commenced, he opted to take holidays in lieu and that this was the choice made by the complainant.

CA-00042540-004 Payment of Wages

The respondent submitted that the complainant was paid the correct amounts owed to him.  It was submitted that as he only worked for a period of nine months, he was only entitled to a pro-rata holiday entitlement – 15 days rather than 20 days.

The respondent submitted that this was outlined in the Employee Handbook.

CA-00042540-001 Terms of Employment

The respondent submitted a document entitled “Statement of Terms and Conditions of Employment” which was issued to the complainant when she started his position.  It was also submitted that the complainant had received a copy of the Employee Handbook at the same time.  I note that the complainant was employed as a manager and would have had access to the employee handbook through his employment.

The complainant submitted that he only received his terms and conditions of employment when he signed and returned the extension of his contract to the respondent.

Having regards to the oral and written submissions made in relation to this complaint, I am satisfied that the complainant was provided with a written statement of his terms and conditions at the outset of his employment.  Accordingly, I find that the complaint was not well founded.

CA-00042540-002 Protection of Employees (Fixed Term Work)

The respondent submitted that the complainant appears to be trying to submit an unfair dismissal complaint without going through the Unfair Dismissals Acts, 1977.  In that regard, I note that the complainant has quoted at length from the Unfair Dismissals Acts, 1977 while not actually taking a complaint under the Acts.

The complainant submitted that he was treated differently to how a permanent employee would have been treated.  The respondent submitted that this was not the case, a permanent employee with comparable service would have been treated tin the same manner.  I note from the handbook that any employee permanent or otherwise may be dismissed if they are unsuccessful in their probation.

The complainant stated that he believed that he expected to pass his probationary period and submitted that he was never told that he failed his probationary period.  He stated that he believed that he was wrongly dismissed.

A witness for the respondent (the Area Manager) disputed that account and gave evidence of arranging the induction and training for the complaint.  It was noted that initially there were no issues with his standard but that as business increased closer to the Christmas period there were difficulties – the store closed early on a number of occasions, shelves were left unstocked, etc.  the witness stated that even after discussion standards had not improved sufficiently.

Having considered the written and oral evidence from both parties, and whilst there may have been little, or no procedures afforded to the complainant when the respondent deemed that he had not succeeded in his probation, I am not satisfied that the complainant has established that a permanent employee with similar service would have been treated any differently.  Accordingly, I find that the complain is not well founded.

CA-00042540-003 Minimum Notice

The complainant finished up his employment with the respondent on 23 January 2021 as per the respondent’s submissions.  The respondent submitted that the complainant took planned holidays and was give his notice before the holidays.  The respondent submitted that these holidays amounted to the complainant’s notice period and that he received his due for this period.

Section 4(1) & (2)(a) of the Minimum Notice and Terms of Employment Act, 1973 state as follows:

4.—(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,

The evidence from the respondent is that the complainant was not paid a week’s notice to which he was entitled but rather was paid his holiday pay that had accrued up to that point.  Accordingly, I am satisfied that the Act was contravened.  I find that the complainant was at a loss of one weeks pay in relation to his notice period and in accordance with Section 12(1) of the Act, I direct that the employer pays the complainant compensation equivalent to one week’s salary, i.e. €673.08

CA-00042540-004 Payment of Wages

The respondent submitted that the complainant was paid his wages, including holiday pay, that had accrued to him.  The respondent submitted that holiday pay was paid out to employees in accordance with the provisions contained in the employee handbook.

The employee handbook states the following in relation to Annual Leave:

In accordance with the Organisation of Working Time Act, 1997 all full-time, permanent and fixed term contract employees who work full time hours, shall be entitled to 20 days holiday per annum. Part time employees are entitled to 8% of hours worked.

The annual leave year runs from 1st January to 31st December. Every year it is the responsibility of every employee to take their holidays. Managers or the HR department will not remind you to. Holiday entitlement must be taken by December of each year. Holidays may not be carried forward to the following year. No payment may be made in lieu of holidays not taken. Full time employees are encouraged to take one week in spring, two weeks in summer and one week in winter.

 After eight months of service an employee is entitled to take two consecutive weeks and you will leave. To qualify for entitlement to full annual leave a minimum of 1365 hours must have been worked or notionally worked in a leap year. Absence due to sick leave, special leave etc does not count when calculating annual leave entitlement.

Section 19(1) of the Organisation of Working Time Act, 1977, states as follows:

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works atleast 117 hours, or 

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

The complainant contended that he worked more than 1,365 hours during 2020, stating that he worked for 45 hours per week for 38 weeks.  This contention was not disputed by the respondent and is supported by the contract of employment submitted by the respondent.

The payment of wages Act, 1991 defines wages as

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.

I am satisfied that the complainant has established that he was properly due 20 annual leave and that he was entitled to be paid for the untaken leave.  that the compliant is well founded.  The respondent submitted that the complainant took 1.5 days off before going to on his holidays.  Arising from this, the complainant is entitled to a further 4 days payment in relation to the outstanding holiday payments.  I find that that the compliant is well founded and I direct that the respondent pay the complainant the sum equivalent to the net amount of his salary for four days.  Four fifths of his weekly salary amounts to €538.46

CA-00042540-001 Terms of Employment

Having regard to all of the written and oral submissions in relation to this element of the complaint, my decision is that the complaint is not well founded.

CA-00042540-002 Protection of Employees (Fixed Term Work)

Having regard to the written and oral submissions in relation to this element of the complaint, my decision is that the complaint is not well founded.

CA-00042540-003 Minimum Notice

Having regard to the written and oral submissions in relation to this element of the complaint, my decision is that the Act was contravened and I hereby direct that the respondent pay the complainant the sum of €673.08.

CA-00042540-004 Payment of Wages

Having regard to the written and oral submissions in relation to this element of the complaint, my decision is that the complaint is well founded and I hereby direct that the respondent pay the complainant compensation equivalent to the net amount of four days salary.

Terms of Employment  - not well founded – Protection of Employees (fixed term work) – not well founded – Minimum notice – Act contravened – compensation – Payment of Wages – well founded – compensation