Complainant

Respondent

Parties

Paul  Gallagher

Donaghys Leisure Ltd trading as Donaghys Bar & Restaurant

Representatives

  In person

 In person

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00038989-001

31/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00043147-001

19/03/2021

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

CA-00043147-002

19/03/2021

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

CA-00043147-003

19/03/2021

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

CA-00043147-004

19/03/2021

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

CA-00043147-005

19/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00043147-007

19/03/2021

The Complainant started working for an employer who owned a public house, retail premises and petrol station in May 2019. In December 2019 the pub part of that business transferred to the present Respondent. The other aspects of the business were not transferred. Having worked for the Respondent as bar manager from December 2019 until March 2020 (when Covid 19 lockdown occurred) he left his employment because his pay was reduced and he was demoted.

Complaint number CA-00038989-001 issued on 31 July 2020.

All other six complaints - CA-00043147-001 – 002 – 003 – 004 – 005 and 007 - issued on 19 March 2021

The Complainant gave evidence under oath as follows:

Evidence.

He started working for an employer who owned a public house, retail premises and petrol station in May 2019. He worked in the pub. On 13 December 2019 the pub part of the business transferred to the present Respondent. The retail and petrol station parts of the business were not transferred.

At the time of the transfer of undertaking the Complainant was earning €12 per hour but his former employer had promised him a pay rise.

He received no notice in advance of the transfer of undertaking in advance of it happening.

He told his new employer that his pay should reflect the pay rise that he had been promised and the Respondent thereafter paid him €15 per hour from January 2020 until lockdown occurred in mid-March 2020.

The pub was closed from March 2020 until June 2020, when pubs were permitted to reopen again.

However his employer, the director of the Company, told him that there had been a restructure of staffing arrangements and the restaurant part of the business was to be expanded. He told him that going forward the Complainant would no longer be the bar manager but would be the bar supervisor answerable to a newly appointed Food and Beverage Manager. His pay would be reduced to €11 per hour.

The Complainant informed the director that this was not acceptable to him. It was a demotion and his pay was being reduced on a unilateral basis. He told the director that he would resign unless his former terms and conditions of employment were reinstated. The director refused and the Complainant resigned his position on 29 June 2020.

Complaints.

CA-00043147-001 (Unfair Dismissal) – This complaint was withdrawn at hearing by the Complainant on the basis that it is a duplicate complaint to CA-00038989-001, which was pursued.

CA-00038989-001 (Unfair Dismissal)

The Complainant gave evidence that in June 2020 the Director told him that his pay would be reduced without his consent. He also demoted him without his consent. This amounted to a constructive dismissal.  Before he resigned, the Complainant advised the Director that he would keep working if his pay and position was returned to the agreed level but if they were not, he would be forced to leave.  The Director told him that the business had been restructured and he would not be returned to his previous pay or to his previous position.

CA-00043147-002 (OWT)

The Complainant was not paid for 3 bank holidays (Christmas Eve, Christmas Day of 2019 and New Years Day 2020). He was also entitled to one week of annual leave.

CA-00043147-003 (Minimum Notice)

The Complainant gave evidence that he was not paid minimum notice prior to the termination of his employment, although he accepted at the hearing that his dismissal was constructive dismissal

CA-00043147-004 (Terms of Employment)

The Complainant gave evidence that he did not receive terms and conditions of employment in writing following the transfer of undertaking.

CA-00043147-005 (OWT – Sunday Pay Premium)

Under his previous employment contract, the Complainant received a Sunday pay premium of 8%. Despite working on Sundays with the Respondent from December 2019 until mid-March 2020 he did not receive a Sunday pay premium. He calculated this entitlement to be €119.

CA-00043147-007 (TUPE)

At the hearing this complaint was withdrawn on the basis that he accepts that the obligation to provide him with notice about the transfer of undertaking was owed to him by his previous employer and not the Respondent

Under oath the Director of the Respondent, Darren Donaghy, gave evidence as follows:

CA-00038989-001 (Unfair Dismissal – Constructive Dismissal)

The WRC has no jurisdiction to entertain this complaint in circumstances where the Complainant has not proven that he was previously employed in the pub part of the transferor business. If he had worked in the retail premises or the petrol station, that part of the business did not transfer to the Respondent and the Complainant would have less than one year’s service. As the Complainant started working for the previous employer in May 2019 and his employment ended with the Respondent in June 2020, the Complainant needed to prove that he worked in the pub part of the previous business from June 2019 and he has not done so.

In addition the Director gave evidence that he was entitled to restructure the business in the period March-June 2020 for economic reasons and reassigning a different role and pay to the Complainant was part of that restructure. He denies either dismissing the Complainant or creating conditions that made it untenable for the Complainant to remain in his employment.  

CA-00043147-002 (OWT) The director conceded that the complaints for 3 bank holidays and one week of annual leave were owed to the Complainant.

CA-00043147-003 (Minimum Notice) The director contended that the right to minimum notice does not apply where the Complainant is the person who ends the employment

CA-00043147-004 (Terms of Employment) The director gave evidence that in January 2020 he asked the Complainant for his previous contract in order to ensure that he could comply with the Complainant’s previous terms and conditions  but the Complainant said he didn’t keep a copy but the contract should be in the office or the director could get it from his old employer. The director gave evidence that no contract was found and it seemed likely to him that the Complainant never had a previous written contract. As the terms of employment were not diluted following the transfer of undertaking (indeed his pay was enhanced to €15 per hour when he threatened to not work unless he was paid this amount) there was no need to further supply him with a written contract.

CA-00043147-005 (OWT – Sunday Pay Premium)

The director said that he did not accept that a Sunday pay premium was part of the Complainant’s previous contract. Such payments are more appropriate to the retail as opposed to the pub sector.

CA-00038989-001 (Unfair Dismissal – Constructive Dismissal)

Preliminary application on jurisdiction:

I find against the Respondent on their assertion that the WRC has no jurisdiction to entertain this complaint. The law that applies is the European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003. I accept that only the pub part of the premises transferred to the Respondent in December 2019 however the evidence of the Complainant is that at all times, ie from May 2019 he worked in the pub part of the transferor’s business. The Respondent has not provided any evidence to counter this and merely posits the possibility that the Complainant worked in the retail or fuel station. Based on the evidence before me I am satisfied that the Complainant did work in the pub part of the transferor’s business in the period of June 2019 until December 2019 and the Respondent accepts that from mid December 2019 on, the Complainant worked in the pub for him until he resigned in June 2020. I am satisfied that the Complainant has proven, on the balance of probabilities, that he worked in the pub for the transferor (from at least June 2019) and later for the Respondent in excess of one year.  

I am also satisfied that this complaint was brought within six months of the breach

Constructive Dismissal.

Having considered the evidence of the parties, I find that the Respondent’s decision to unilaterally reduce the Complainant’s pay and position in June 2020 without consultation with the Complainant to be a fundamental breach of the Complainant’s contract of Employment. The reduction in pay is more determinative that the reassignment of roles because I accept that following a transfer of undertaking an Employer may be entitled to restructure and if necessary to re-assign staff to different roles (for Economic, Technical or Organisational reasons.) However,  an employee’s pay may not be reduced unilaterally.  Not only is this a fundamental breach of the Complainant’s contract of employment  but it also breaches the Payment of Wages Act 1991. The Respondent accepts that the Complainant was paid €12 per hour under his previous contract in December 2019 (prior to the transfer) and by enforcing a pay reduction to €11 per hour on the Complainant and then refusing to reconsider that decision, when the Complainant warned him that he would resign unless the pay level was returned, amounts to a Constructive Dismissal.

Loss

The Complainant contends that unsuccessfully sought pub work from July 2020 until a year later when he retrained in IT and started a new job in January 2022. He received Covid payments from March 2020 so his losses from July 2020 onwards would have been €250 per week as opposed to €600 per week.  However the Complainant failed to provide any evidence to show his attempts to mitigate his losses from July 2020 as he is obliged to do. Under the Unfair Dismissal Acts the onus is on the Complainant to prove that the financial losses that he suffered arose as a result from the dismissal. He must also prove that he attempted to mitigate these losses. In deciding on the appropriate amount of compensation,  I must also take into account that during 2020 and 2021 when he was unable to obtain alternative work there were periods when pub-work was not available due to the pandemic.

Taking all the circumstances into account I consider the loss of 8 weeks to be an appropriate amount (€4800) to compensate the Complainant for the losses that he contends he suffered.

CA-00043147-002 (OWT)

The complaint of 3 bank holidays (€120 x 3) and one week of annual leave (€600) is conceded.

CA-00043147-003 (Minimum Notice)

As the Complainant resigned his position the obligation to pay minimum notice does not arise

CA-00043147-004 (Terms of Employment)

Section 5 of the Terms of Employment (Information) Act 1994 as amended requires that when a term of employment changes an employee should be notified in writing of the change. It is clear that the identity of the Employer changed when the transfer of undertaking occurred in December 2019 and no evidence was submitted that this change was notified to the employee when the change of employer took effect.

The Respondent contended that according to the Complainant he had a written contract from his previous employer which the Respondent gave full effect to so there was no need to provide the Complainant with another written contract.

The responsibility to furnish terms of employment in writing lies solely with the Employer. This obligation is not based on whether the terms are asked for or whether a previous contract was provided by the employee or not. Having not located the previous contract and having then changed a term of the contract (the name of the employer) from that which it was previously the onus was on the Respondent to provide written terms of his employment in writing.

However this breach occurred in December 2019 and this complaint did not issue until 19 March 2021 which means that this complaint is outside both the 6 month time limit and the extension period. I do not have jurisdiction to decide this complaint. Consequently I have no discretion other than to find that this complaint is not well founded.

CA-00043147-005 (OWT – Sunday Pay Premium)

The Respondent did not deny that the Complainant worked some hours on Sunday during the period of his employment. The Complainant contends that this amounted to €119 based on 8% as previously agreed with the former employer.

The right to a Sunday Pay premium is found in section 14 of the Organisation of Working Time Act 1997. It pertains to all workers not just those in a particular sector. As the Respondent did not deny that the Complainant had worked for him on Sundays the issue is not whether he is entitled to be paid but what is a reasonable allowance. Considering the case law on this area, an increase of 8% is considerably less than the 25% which is typically upheld to be an appropriate uplift.

However this breach occurred on or before 29 June 2020 and this complaint did not issue until 19 March 2021 which means that this complaint was brought outside the 6 month time limit. No time extension was sought. Consequently I do not have jurisdiction to decide this complaint. I have no discretion other than to find that this complaint is not well founded.

CA-00043147-001 – Withdrawn at Hearing

CA-00043147-007 – Withdrawn at Hearing

WITHDRAWN COMPLAINTS                                                                                                                              CA-00043147-001 (Unfair Dismissal – Constructive Dismissal) - Complaint withdrawn                       CA - 00043147-007 (TUPE) – Complaint withdrawn

COMPLAINTS PURSUED

CA-00038989-001(Unfair Dismissal – Constructive Dismissal)

I find that the Complainant was unfairly dismissed. I award the Complainant €4800.

CA-00043147-002 (OWT)

As these complaints are conceded by the Respondent as being well founded, I award the Complainant €960

CA-00043147-003 (Minimum Notice)

I find this complaint to be not well founded

CA-00043147-004 (Terms of Employment)

I find this complaint to be not well founded.

CA-00043147-005 (OWT – Sunday Pay Premium)

I find this complaint to be not well founded.

Total Award: €5760