Worker

Employer

Anonymised Parties

General Catering Assistant

Catering Company

Representatives

Act

Dispute Reference No.

Date of Receipt

 Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00049760-001

14/4/2022

The employee was employed as a general catering assistant from 14/09/2022.  On 24/12/2021 the business closed due to Government restrictions.  It remained closed for January and February 2022 apart from an occasional work which was undertaken by the employer.  The employee contacted the employer to see when she would be able to return and when no definite timeframe was available the employee took it that she was dismissed.  The employer submits that the employee resigned.  The worker worked 20 hours per week and was paid €240.00 gross per week (€238.66 net).

The worker commenced employment with the respondent on 14/09/2021.  She was told on 24/12/2021 that there would be no work after Christmas and was advised to go on the PUP payment which she did.  When this payment was coming to an end, she contacted the employer to see what was happening and when she could expect work to be available.  She was offered 3 days per week, but this was cancelled as orders were cancelled and no work was available.  The worker visited the employer’s premises and saw other employees working there she confronted the employer about not getting any work.  She stated to the employer that she felt he did not want her back and the worker submits that the employer confirmed this.  She took this to mean that she was dismissed.  She did not receive a contract of employment and did not receive her full pay entitlement and holiday pay which was due.

The employer operates a small catering company.  He employed the employee from 14/09/2021 as she was coming off a Social Welfare Payment and there was a stipulation that she was required to work 20 hours per week to enable her to retain her social welfare payment.  The employer did not provide a contract of employment as he was unsure if the business was to remain open due to the effects of the COVID-19 pandemic and the restrictions in place.

In December 2021 the business had to close to comply with Government restrictions.  The employee and two other employees were told to apply for the PUP payment.  The employee was paid her wages the following week.

The business remained closed for January and February 2022 apart from an occasional job which the employer carried out himself.  He needed to do this to keep the full rent paid.  In February 2022 the employee asked when she could expect to return to work.  The employer was unable to confirm due to the restrictions still in place.  The employer received a text message from the employee on 23/02/22 stating that she would not be returning to work and requesting that her “back week” and holiday pay be sent to her. The employer submits that his accountant confirmed that the back week was paid on 31/12/2021 and the outstanding holiday pay was paid on 01/04/2022.

The employer submits that did not dismiss the employee and that they had a good working relationship.  He knew her from a previous employment, and she was a good worker.

At the hearing the employer undertook to ask his accountant to prepare a breakdown of the money paid to the worker and to issue this to her.  If there are any queries his accountant would be best placed to deal with those.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties prior to the hearing.

This is an unfair dismissal claim but as the worker has less than 12 months service it is dealt with under the Industrial Relations Act.

My role is not to decide legal rights but to make a recommendation on how this dispute should be resolved in the interest of fairness between the parties.

The key issue in this case can be looked at in terms of the question:   was the worker dismissed?  The worker did not provide any document or e-mail which would confirm that she was.  I accept the employer’s position that she was not dismissed.

While I recognise the operational difficulties that the employer faced during the Covid period, I find that the worker had specific and time limited requirements which the employer was unable to fulfil due to the business situation at that time.  She was not treated unfairly during this period when other workers were able to work without time restrictions.

I also recognise that prior to the Covid period, the worker in the instant case was treated in the same manner as the other employees.  The availability of work was dependent on the orders which came in and this dictated the hours available to her and the other employees.

In light of the foregoing, I do not make a recommendation in favour of the worker.

Unfair dismissal