Complainant

Respondent

Parties

Timea  Benczik

Graclil Ltd

Representatives

  Self

Hanyie Lamb  Peninsula Business Services Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997WITHDRAWN on the basis of a settlement reached by the parties at the hearing and confirmed as paid the same day.

CA-00055822-001

29/03/2023

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

CA-00055822-002

29/03/2023

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

CA-00055822-003

29/03/2023

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

CA-00055822-004

29/03/2023

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

CA-00055822-005

29/03/2023

The Complainant is an employee of the Respondent. She commenced employment on 08.02.22 as a sales assistant. On her complaint form she gave her rate of pay as €500 per week gross over 42 hours.

The complaints which remain to be decided are all under the Terms of Employment Information Act 1994 and all ultimately relate to an alleged failure to provide the Complainant with written terms of employment giving rise to complaints about not being provided with those terms and then seeking to change the terms agreed verbally concerned with hours of work which the Complainant alleges were reduced by the employer without her agreement in March 2023.

Evidence of the Complainant

a.      No statement of terms of employment provided

b.      Duplicate of a

The Complainant gave evidence of meeting Mr Curley and agreeing her terms of employment. However, she denies that  she received a written statement of terms at any stage.

c.      Was not notified of changes. The Complainant stated that this complaint is about the reduction of her hours in March 2023.  During the employment she had problems with the numbers of Sundays she was rostered to work and being asked to go to the Moycullen Store which was some distance away.  It was her evidence that before she started, she met with Mr Curley and they agreed she would be working 40 hours per week. In March 2023 she found she was rostered only for three days. She provided emails to and from Mr Curley where she queried the reduction. He replied that she had mentioned to Deirdre(Crotty) that she was looking to go down to part time hours and she replied that she had said only that maybe she would reduce her hours after she finished her course. She described the conversation with Deirdre as just a chat. She never said she wanted her hours reduced. In cross examination, the Complainant accepted she never raised a grievance about the issues in her complaint. She accepted that the number of Sundays she was working was to be reduced at her request for more family time at the weekends and that her roster days were changed to allow her to complete her education course. In cross examination, the Complainant stated that she never agreed to 30 to 40 hours-it was agreed that she would be full time.

d.     The Complainant did not receive a statement of her  core terms of employment-this is notin dispute.

Terms of Employment Information Act

a.      No statement of terms of employment provided

b.     Duplicate of a.

The Respondent maintains that a written statement of terms of employment was issued by Mr Curley to the Complainant in person in the Oranmore Store. The Complainant was asked to sign and return the contract(copy supplied) on more than one occasion but failed to do so. It would be evidenced that Ms Crotty was present on one occasion when the Complainant was asked by Mr Curley to sign and return the written contract.

c.      Was not notified of change in terms of employment

The Respondent contends there was no change in the terms of employment. They also submitted in evidence that changes were made at the request of the Complainant- in reducing the number of Sundays worked, paying expenses for travelling to work in the Moycullen store and in not rostering the Complainant on Tuesdays when she wanted to participate in an education course. An employee handbook was placed next to the till. Flexibility is an express term of the contract including being available to work in various stores. A list of dates worked in Moycullen was provided. The contractual commitment in hours was to a minimum of 30 hours with up to 40 when possible.

d.     No statement of core terms issued within five working days

The Respondent accepts that core conditions of employment were not issued to the Complainant but contends that the Complainant suffered no detriment as a consequence of that failure.

 The Complainant went out sick from 29 March 2023 and has not returned. At no stage did she submit a grievance in relation to any of the issues she has raised through the WRC.

Witness Evidence Shane Curley

Mr Curley is the owner of the business for ten years in four stores. He described meeting with the Complainant and agreeing 30 to 40 hours a week for 12 50 per hour working in Galway. The Complainant was looking for forty hours a week but he said it would 30 with more when available and less than 40 when she requested not to be rostered on a Tuesday. He understood that Deirdre had a conversation with the Complainant in which she said she wanted to reduce to part time working. His evidence was of giving the Complainant a copy of the statement of terms about two weeks after she started and that she refused to sign it-a max of two times to his recall. Asked how the Complainant reacted when he gave her the contract, the witness replied that it was over a year ago, he can’t recall her reaction.

Witness Evidence Deirdre Crotty

The witness gave evidence of seeing Mr Curley requesting the Complainant sign the contract. She wouldn’t be able to say when this was. Asked about the reaction of the Complainant she described it as no verbal reaction, just shrugged really.

In relation to the reduction of hours,  the witness stated that her instructions were that the Complainant was to be rostered for up to 40 hours. She was able to provide details of the number of days worked by the Complainant between October 2022 and February 2023. These showed in the main a pattern of 5 days most weeks with one 4 and one 6-day week. There was another employee in transition from another store at the time and she was told to cut back in the hours on the roster. This was a quiet time in the business. The witness accepted that the discussion with the Complainant about possibly working part time hours was just a chat.

A and BNo statement of Terms of Employment provided

The claim by Mr Curley that he provided the Complainant with her written terms of employment is dubious to say the least. Firstly, in breach of section 3A  of the Act he himself  neither signed nor dated the document purporting to be a copy of the document issued to the Complainant provided to the hearing. Secondly the simplest way of marking the issuing of the document would have been to email it to the Complainant which he never did and so has no record of when he provided it nor when she was reminded about it and/or when she failed to return it.  And he did not issue any of his reminders by email although there is frequent enough email traffic between them on other employment matters. Thirdly and most significantly, the contract erroneously states that the agreed contract hours were a minimum of thirty which as it directly contradicts the contents of the email of 27 January 2022 referring to 40 hours-the Complainant would surely have queried had she been provided with a copy of the document submitted at the hearing. This was not an employee who was silent about her contract issues-she queried her expenses for travelling to  Moycullen, she queried the number of Sundays worked and she queried the reduction in her hours; she queried holiday payments. That she would have remained silent when she received the purported contract document would be completely inconsistent with her actions on contract issues during the employment. Ms Curley’s evidence on this matter was vague as to when the observed exchange actually occurred in contrast to her clarity in her other evidence which was valuable and not at all unhelpful.

The Complainant is to receive two weeks or €1000 compensation for the failure to provide her with a full written statement of her terms of employment at any stage during her employment.

The Respondent is to issue a signed a dated statement of terms of employment to the Complainant within four weeks of the date of this Decision. That statement is to comply with the terms of the 1994 Act in place in December 2022. Specifically, that statement is to confirm:  a contract of 40 hours working per week together with the rate of pay for Sunday working, the frequency of Sunday working, the  base of the Complainant as Oranmore and the terms under which the Complainant will be required to provide cover in other stores.

These findings and decision are in respect of A and B(which is a duplicate of A).

C Not notified of change in terms of employment. Hours of work. The email of 27 January 2022     clearly states that the offer of employment was for 40 hours. That is the offer accepted by the Complainant. Any evidence that there was another agreement-of 30 to 40 hours is best described as spurious. Ms Crotty’s evidence was clear, there was a reduction in the Complainants hours brought about by the trading circumstances. This is consistent with the email from Mr Curley to the Complainant on March 22nd, 2023, in which he referenced very little sales and  the need to reduce hours ‘where we can’. By that stage the Complainant was working across two stores for a number of   weeks and was working Sundays over the previous months so a three-day week was a reduction in her income and a change in her agreed contract hours without her agreement.

The Complainant is to receive two weeks compensation or €1000 in respect of the unilateral change in her terms of employment and the employer is to follow the order as set out in the decision.

 D  No Statement of Core Terms of Employment

This breach of the legislation is admitted by the Respondent. The hours of work and the rate of pay with the bonus arrangement together with the opening hours to be covered in the hours worked were all provided to the Complainant in an email on 27 January 2022. Given these core terms were provided, and the award of compensation under the earlier CA references combined, reach the maximum number of four weeks compensation which can be awarded under the legislation in respect of the complaints made, no further compensation is available under this item of the complaint and would in any event have been modest.

Redress under Section 7 of the Terms of Employment Information Act 1994 as amended to December 2022.

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, and without prejudice to any order made under paragraph (e)order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

CA—00055822-002 Terms of Employment Information Act 1994 -No Statement of Terms of Employment Received. This complaint is well founded. The Respondent is to pay the Complainant  €1000 compensation. The document issued for the purposes of the WRC hearing does not reflect the agreed terms of employment. The Respondent is to issue a signed a dated statement of terms of employment to the Complainant within four weeks of the date of this Decision. That statement is to comply with the terms of the 1994 Act in place in December 2022. Specifically, that statement is to confirm:  a contract of 40 hours working per week together with the rate of pay for Sunday working, the frequency of Sunday working, the  base of the Complainant as Oranmore and the terms under which the Complainant will be required to provide cover in other stores.

CA- 00055822-003 Terms of Employment Information Act 1994- No statement of terms of employment received No award and no further decision required-duplicate of 002.

CA- 00055822-004 Terms of Employment Information Act 1994 -Was not notified in writing of a change in conditions-this complaint is well founded. The Respondent is to pay the Complainant €1000 compensation.

CA-00055822-005 Terms of Employment Information Act 1994-No statement of core terms of employment received. Complaint partially well founded. No compensation awarded.

Terms of Employment-No statement/no core terms/change in agreed terms.