ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00043089

Parties:

Complaints:

Date of Adjudication Hearing:  20/06/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

24 complaints were submitted by the Complainant in her complaint form to the WRC, received on 23/06/2022.   The Complainant’s employment ended on 19/12/2021.

An ES1 form was received by WRC on `13/04/2022.  The narrative in the form completed by the Complainant states that she was unfairly dismissed, that she received no written contract and that she was only paid for 1 year’s holiday pay during her 6 years employment.   

The 24 complaints received on 23/06/2022 were received outside the time limit in Section 41 of the Workplace Relations Act 2015 and this is addressed in the findings below.

The following complaints, presented to the WRC on 13/04/2022 are within time:

A complaint under the Unfair Dismissals Act 1977 (received on ES1 form on 13/04/2022)

Complaint under the Minimum Notice & Terms of Employment Act 1973 (received on ES1 form on 13/04/2022)

Complaint under the Organisation of Working Time Act 1997 (received on ES1 form on 13/04/2022)

Summary of Complainant’s Case:

The Complainant gave sworn evidence.  She stated that the main complaint she had was that she was unfairly dismissed when the Respondent told her to “finish her shift and disappear” after they had an argument about an order she placed.  There was a new system in place where she had to press a button on a terminal to select orders.  She maintained that the system was wrong and he maintained that she was in the wrong and an argument ensued.

The Complainant stated that as English was not her first language she submitted the wrong complaint form on 13th April 2022.  Her employment with the Respondent ended on 19 December 2021.  She then submitted the correct forms on 23 June 2022.  She argues that the complaints should be considered to be in time and if not, there are reasons why the 6 month time limit should be extended.  These reasons include the fact that family circumstances delayed her submitting her complaints.

On the issue of what gave rise to her dismissal, she stated that she was shouted at by the Respondent who told her she had made a mistake about a scallops order and she would have to pay for it.  She denied she made a mistake and the argument went back and forward until he said to her ‘finish your shift and go home’.  She had worked there for over 6 years and loved her job.  She never said she was “sick of this work” or “sick of this place”.    She was out of work for two months and then got a better job with a hotel with better pay.

Summary of Respondent’s Case:

The Respondent contended that the complaints should be ruled out of time and no reasonable cause has been put forward for extension of time.

Sworn evidence was given by the Respondent.  He stated that the Complainant came to work for him in the restaurant.  She received written terms of employment.  She was paid €9.80 per hour for 5 – 6 hours per week.  She generally worked a Saturday or Sunday.  A new ordering system was introduced where food could be ordered from the kitchen electronically.  The Complainant made an error by pressing the order a few times.  She would not accept that she made a mistake.  She said to him that she was “sick of this place”.  He did say to her that she could take holidays at Christmas and then she could give him notice but he did not dismiss her.  He denied that he told her to leave. He and his manager tried to get her to come to work in the new year, but then he discovered she had gone to work for another restaurant/hotel.

Sworn evidence was given by Manager Mr P.  He stated that he overheard the conversation between the owner and the complainant. He stated that the system works and the person inputting the order must be careful not to press the button too many times.  The witness read out some texts he sent asking the complainant was she coming back to work.

Findings and Conclusions:

Preliminary issue: Time limit

Section 41 (6) of the Workplace Relations Act 2015 provides:

“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 original complaints, received by the WRC by way of an ES1 completed form were received on 13 April 2022.  The Complainant’s employment ended on 19 December 2021.   The narrative in the form completed by the Complainant states that she was unfairly dismissed, that she received no written contract and that she was only paid for 1 year’s holiday pay during her 6 years employment.                             The form is not a prescribed form and I am satisfied that the narrative in the form expresses the complaints and the complaints regarding alleged unfair dismissal, holiday pay and terms of employment are properly before me. 

The complaints received on 23 June 2022

24 complaints were received on 23 June 2022 over six months after the Complainant’s employment ended.

Section 41 (6) of the Workplace Relations Act 2015 provides:

“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.

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after 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”.

I note the original complaints were submitted within the time limit provided in the Act.  The Complainant then submitted some 24 complaints many of which were a duplication of her three original main complaints.    I do not consider reasonable cause exists to extend the time for consideration of these 24 complaints, many of which have no relevance to the employment status of the Complainant.    

Substantive complaints

Unfair Dismissal – Unfair Dismissals Act 1977

In the matter of the alleged unfair dismissal, I note the conflict of evidence between the Complainant and the Respondent. There was much evidence and detail about the issue of the electronic ordering system.  The Complainant’s evidence is that she was told to leave after her shift.  The Respondent’s evidence was that he did not dismiss the Complainant.  In circumstances where a ‘heat of the moment’ argument arises, it is incumbent on the employer to establish whether the employee is tendering her resignation.  He might also have requested if she wished to submit a grievance.  He may have decided to initiate disciplinary action for her insubordination.  In this case none of these courses of action was pursued.  I accept the Complainant’s evidence that the Respondent told her to finish up her shift and leave.  In the circumstances, I uphold the Complainant’s claim that she was unfairly dismissed.  I consider that compensation is the appropriate remedy.   The Complainant secured employment after some two months at a better rate of pay.   The appropriate amount of compensation, I require the Respondent to pay to the Complainant is the sum of €630 which includes minimum notice pay of 4 weeks pay.

Annual leave payment – Organisation of Working Time Act 1997

In relation to the Complainant’s complaint regarding holiday pay, I note the Respondent’s records submitted and the Complainant received payment in lieu of annual leave after the cessation of her employment.  I therefore find her complaint to be not well founded.

Terms of Employment  - Terms of Employment (Information) Act 1994

In relation to the Complainant’s complaint that she did not receive written terms of employment, the Respondent submitted evidence of a contract of employment signed by both parties.  I find her complaint to be not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints  in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the complaint of unfair dismissal submitted under the Unfair Dismissals Act 1977 (received 13/04/2022) is well founded and I award the Complainant the sum of €630.

I have decided that the complaint under the Terms of Employment (Information) Act 1994 (received 13/04/2022) is not well founded.

I have decided that the complaint under the Organisation of Working Time Act 1997 (received 13/04/2022) is not well founded.

Dated:   31 August 2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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