Complainant

Respondent

Parties

Caroline  Kavanagh

Home Fare Services UnLim. Co.

Representatives

Shonagh Byrne,                                                 SIPTU

Robert Jacob Solr.,                                             Jacob and Twomey Solicitors LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057350-001

26/06/2023

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

CA-00057350-002

26/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00057350-004

26/06/2023

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin 4. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. The hearing was not, however, conducted in public as an element of the hearing concerned a dispute brought under Section 13 of the Industrial Relations Act of 196 and which could not be separated out from the balance of the issues.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 26th of June 2023.

In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to require that all parties giving oral evidence before me, would swear an or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances asked parties to make the Affirmation. It is noted that the giving of false statements or evidence is an offence.

The Complainant attended in person and was fully represented by her Union representative. At the outset, the Complainant was happy to make an Affirmation to tell the truth. I was provided with a comprehensive submission dated the 9th day of October 2023. This was prepared by the Union representative and included a number of documents being tendered as evidence and being relied on by the Complainant. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that her wages were unlawfully deducted when she was involuntarily put on a Lay Off in circumstances where her Contract of Employment did not provide for same.

In presenting the case, the Complainant’s representative confirmed that the Complainant was no longer pursuing a complaint under the Organisation of Working Time Act 1997. It was also indicated that the two Payment of Wages claims were identical and only one decision was required.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had legal representation at this hearing. The Respondent entity also sent two witnesses to represent the Respondent position. The Respondent provided me with a written submission which I received on the date of hearing though which I understand had already been sent to the WRC.  I have heard the evidence of SW (the HR Manager) who made an Affirmation before setting out her Employer’s position. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case.

The Respondent rejects that there has been any Unlawful Deduction.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the evidence adduced in the course of this hearing. The Complainant is a catering assistant who has worked on the TUD Blanchardstown campus since 2016. The Complainant was engaged as a permanent part time member of staff and worked for 20 hours over a five-day week. The Complainant was a very happy employee and loved the work. By the time the Covid pandemic hit in March of 2020, the Complainant was primarily putting in a daily four-hour shift from 9 to 1 at the onsite Café at this third level education institution.

In September of 2020 the Respondent company took over the Catering Contract on the Blanchardstown site and the Complainant and her colleagues all transferred over to the Respondent business under the Transfer of Undertaking process. It is self-evident that employees retain their continuity of service and that the usual guarantees concerning the retention of the same Contractual terms and conditions of employment are implied into this Transfer.

Post-Covid, the Complainant returned to the workplace in the Autumn of 2021. Initially, the Complainant’s work pattern was the same as it had been before the Transfer of Undertaking and before Covid hit. The Complainant was working her 20-hour week as before. Then in May of 2022 (some seven months after the return to the workplace) the Complainant was notified by her Line Manager that she was to be put on Lay-Off for the summer months as there was so little on-site demand for catering while the campus was closed to students. The Complainant was very upset at this development as this had not been the practise of her previous employer who had left the Café open throughout the summer and had engaged the Complainant as normal.

The Complainant noted that the café was to be kept open but that it would be run by a skeletal staff most of whom (unlike herself) were engaged on a permanent full-time basis.

There appears to have been some tentative effort made to place the Complainant at another catering site owned by the Respondent company, but this appears to have fizzled out for reasons not really explained.

The Complainant gave evidence concerning the knock-on effect that this development had meant for her. In particular, the Complainant lost her entitlement to the Social Welfare Working Family Payment which she had been receiving. As I understand it, Social Welfare took the view that the Complainant (who was also laid off at Christmas 2022 and again at mid-term and Easter of 2023) was now to be classified as a “Seasonal” worker and not as a Permanent Employee which change in classification resulted in the automatic loss of the said Social Welfare Working Family Payment. This had dire financial implications for the Complainant and presumably were unforeseen by the Respondent.

The Complainant issued her Workplace Relations Complaint Form in June of 2023 and in the circumstances, I am looking at a period of six months immediately preceding that date when the Complainant was put on lay off for in and around 6.2 weeks.

The Complainant makes the case that there is no Contractual provision in her Contract of Employment which allows her to be Laid off in the manner that she was. The Complainant asserts that her Permanent part-time Status needs to be recognised and that the attempt to make her a seasonal worker is unjust, unfair and illegal. The Complainant asserts that the Deductions made are unlawful as she did not consent to the salary deduction. The Complainant representative opened a line of authorities to me which sets out the principle that there is no general right to Lay-Off where it has not been specifically referenced in the Contract of Employment. This principle can be rebutted if the Employer can demonstrate Custom and Practise. In this regard the case of Stefan Chmiel and Ors  -v-  Concast Precast Limited [PW725/2012] and Industrial Yarns -v- Greene [1984]ILRM 15 were both opened to me.

The Respondent gave evidence that (in it’s many years of business) there is and always has been a recognised practise of putting Catering Employees on Lay Off for the summer months when third level (and indeed second level) education institutions see a dramatic reduction in footfall. I accept the Respondent evidence that many of the catering Contracts it operates sees the implementation of the wholesale Lay-off of staff. This has been the Custom and Practise of the Respondent across nearly all of the sites it operates from.

However, the difficulty is that it was seemingly not the Custom and Practice of the Complainant’s previous Employer which had previously operated this particular catering Contract and who had originally engaged the Complainant. The effect of the 2020 Transfer of Undertaking is that the complainant’s terms and conditions of employment ought to have been preserved, protected and guaranteed. This did not happen when the Complainant was summarily and without discussion placed on a programme of Lay -Off. The profound effect this had on the Complainant did not seem to be understood by the Respondent. The lack of consultation and consent is also noteworthy.

I was, on the other hand, struck by the evidence presented by the Respondent HR Manager that post Covid there has been a huge change in the way most of the third level institutions operated. In particular, the reduced numbers of persons attending the campus with so many people now opting to work from home on a partial or full-time basis. This has negatively impacted business. For example, the café in which the Complainant usually works might only take in €150.00 or less on a given day (in summer) which might not cover stock, wages and running expenses. The Respondent has argued that post-covid, there has been a need for an overall adjustment in profit expectation and employee expectation. I find that there is some merit in this argument. There is a need for Lay-Off though not an entitlement to foist it on the Complainant.

I accept that the Respondent had no Contractual entitlement to put the Complainant on Lay-Off. However, I do accept the commercial reality outlined by the Respondent and already referenced. I also have to take into consideration that the Complainant was offered alternative positions for the two summer periods of 2022 and 2023. The 2023 experience was very successful whilst the 2022 period appeared to fizzle out after a period of illness.

On balance I accept that the complaint is well founded as respects the deduction (which was caused by the not Contractually based Lay-off process). In directing the Employer to pay compensation to the Complainant I am mindful of the fact that post covid adjustments had to be made and other alternative work was suggested.

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

CA-00057350-001 – The Complaint herein well founded and I direct compensation in the amount of €1,000.00 be paid to the Complainant.

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

CA-00057350-002 – This complaint is a repetition of complaint CA-00057350-001 above and can be withdrawn.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of WorkingTime Act, 1997

CA-00057350-004  - This Complaint was withdrawn by the Complainant’s representative on the date of hearing.