Complainant

Respondent

Parties

Stephen  Flanagan

Green Lemon Limited trading as Pea & Pod (now trading as Reuben's Deli)

Representatives

Andrew McCann North Dublin Citizens Information Service

Mark Collins Tom Collins & Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048306-001

25/01/2022

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

CA-00048306-002

25/01/2022

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

CA-00048306-003

25/01/2022

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

CA-00048306-004

25/01/2022

The Complainant commenced employment with the Respondent on the 15th November 2021 as a Deli Assistant. He worked between 31-34 hours per week at a rate of €12.50 per hour and on average he earned €387.50 gross per week. The Complainant raised complaints that he did not receive a statement of his core terms of employment in writing, that he did not receive a statement of his terms of employment, that he was not notified of a change to his terms of employment and that he was paid less than the amount due and owing to him. The Respondent accepted that the Complainant’s core terms of employment and statement of terms of employment were not provided in the manner prescribed under legislation however it denied that there was a change to the Complainant’s terms of employment in January 2022 or that he was paid less than the amount due and owing to him as his employment was terminated on the 23rd December 2021.

Complaints under Section 7 of the Terms of Employment (Information) Act 1994:

CA-00048306-001

“I did not receive a statement in writing on my terms of employment.”

The Complainant commenced employment on 15th November 2021 and did not receive a contract of employment in writing or a statement in writing of his terms of employment.

CA-00048306-002

“I was not notified in writing of a change to my terms of employment.”

On the 14th January 2022 the Complainant’s colleague was advised by the Director by telephone that the Complainant’s rate of pay would be reduced from €12.50 per hour to €11.00 per hour and that his hours/days of work would be reduced from 5 days to 2 days per week.

CA-00048303-003

“I did not receive a statement of my core terms in writing under the Terms of Employment.”

The Complainant was not provided with his core terms in writing.

Complaint under Section 6 of the Payment of Wages Act 1991

CA-00048303-004: This complaint was withdrawn at the hearing.

CA-00048303-001 and CA-00048303-003

The Respondent's representative stated that it is a small business that began operating in November 2021 as a café (the Respondent’s business is hereinafter referred to as the “café”). The Complainant was employed with the Respondent for a short period of time, approximately 6 weeks, until the café closed down on the 23rd December 2021 due to the chef leaving the business at the start of December 2021, the business running at a loss and COVID-19 restrictions limiting the business throughout this period.

The Complainant was advised of his terms of employment when he took up employment although it was accepted that no contract of employment was signed by the Complainant. The hours of work varied depending on the performance of the business and the Complainant’s colleague submitted his hours of work and calculation of pay he was owed to the Director by text message each week. The Respondent paid the Complainant without delay.

Following the chef leaving the café in December 2021, the Complainant was advised that the café would stay open until Christmas and it would then close. The Complainant was given two weeks’ notice of the pending closure. The Respondent’s café shut down on the 23rd December 2021 and there was no return date set.

By way of mitigation the Respondent submitted that the Complainant did not suffer any no loss as a result of the complaint being made and the Respondent has ensured that all employees now have written contracts in place.

CA-00048303-002

The Respondent closed the café on the 23rd December 2021 as the director was not in a position to operate the business. The Complainant’s employment terminated on the 23rd December 2021 and the Complainant was provided with the appropriate notice period.

The Complainant’s colleague contacted the Director in January 2022 when the café re-opened inquiring about their jobs. The Director advised the Complainant’s colleague that the Complainant and the Complainant’s colleague’s details were passed on to the new manager running the café and he would be in contact with them. The Complainant’s colleague was advised that a job was available for the Complainant two days per week at €11.00 per hour. This was not a change of the terms of employment as the Complainant’s employment terminated on 23 December 2021.

By way of concluding submissions the Respondent’s representative submitted that the Complainant’s employment ceased on the 23rd December 2021 when the café closed down. The Complainant was paid in full and was no longer contracted to the Respondent. The Complainant was in a position to seek work elsewhere. Given the length of service, any issues arising out of what was submitted as being minor breaches have been swiftly addressed and rectified by the Respondent with the Complainant suffering no actual loss and the complaints should fail.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and have given due eight to the evidence and submissions made by the parties at the hearing.

CA-00048303-001 – Terms of Employment (Information) Act 1994

Relevant Law:

Section 3(1) of the Terms of Employment (Information) Act 1994 as amended by the Employment (Miscellaneous) Provisions Act 2018 (hereinafter referred to as the “1994 Act”) obligates an employer to provide employees with information concerning an employee’s terms and conditions of employment in written form within two months of commencing employment as follows:

“3(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) […]

(b) […]

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) […]

[(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,]

[(g) […]],

(ga) that the employee may, under section 23 of the National Minimum Wage Act 2000, request from the employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section,]

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

Redress:

Section 7 of the 1994 Act provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded.

In Beechfield Private Homecare Limited v. Megan Hayes Kelly, TED1919, the Labour Court awarded the maximum of four weeks’ remuneration. Here the Chairman of the Court noted “[i]n determining the appropriate level of compensation it should award in a particular case, the decision-maker must take into account all the relevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum …”.

In Javier Fernandez Torres v. Sitting Tree Limited T/A Harbour Bar, TED2214, the Labour Court awarded the maximum of four week’s remuneration stating in its “Discussion and Decision” that “[i]t is abundantly clear from the facts as accepted by both Parties that the Respondent did not issue the Complainant with a two-month statement of terms and conditions within the timeframe specified by section 3(1) of the Act for so doing.”

Findings:

The Complainant commenced employment with the Respondent on the 15th November 2021. The Respondent submitted that the Complainant’s employment was terminated on the 23rd December 2021 on the basis that the café closed down on that date due to its chef leaving and COVID-19 restrictions limiting trade. This was disputed by the Complainant who denied that the café was closed down on a permanent basis. The Complainant gave evidence that in December 2021 a new chief was hired and a decision made to review the menus and refurbish the café and that the closure on the 23rd December 2021 was a temporary one to allow for the refurbishments to take place. According to the Complainant and the Complainant’s colleague he was advised on the 23rd December 2021 to go on the PUP pending further COVID-19 outbreaks but that he remained in employment with the Respondent. The Respondent’s premises re-opened on the 11th January 2022. The Complainant’s colleague contacted the Director on the 14th January 2022 on behalf of the Complainant to inquire about their return to work date and thereafter the Complainant’s representative engaged in oral and written communication with the Respondent.

While it was common case that the Complainant’s employment commenced on the 15th November 2021 the parties differ as to how and when it ended. Taking account of the evidence of the Complainant and the Complainant’s colleague and the witness on behalf of the Respondent and the oral and written submissions and documentation presented on behalf of the parties I resolve the conflicts in evidence in the Complainant’s favour and find that the Complainant’s employment did not terminate on the 23rd December 2021 and that he remained employed by the Respondent when the café re-opened in January 2022.

It was accepted by the Respondent that the Complainant did not receive a statement in writing of his terms of employment. At the time of the Complainant’s employment the Respondent had to provide written terms of employment within two months of the commencement of the Complainant’s employment. I find that the Complainant’s employment did not end before the two months and consequently, the Respondent breached Section 3(1) of the 1994 Act and the complaint is well founded.

It was submitted on behalf of the Respondent that regard should be had to the Complainant’s length of service, that the Complainant suffered no actual loss, that any issues were minor breaches and the fact that whilst the Complainant did not receive a written statement of his terms of employment the Respondent had ensured that all employees now had written contracts in place however I find that there was no evidence before the WRC that this was the case.

I have taken into consideration the submissions by and on behalf of the parties and the above Labour Court determinations. Given the circumstances of the case there is no longer a requirement to furnish a written statement of the Complainant’s term of employment. As the Respondent failed to provide any statement in writing on the Complainant’s terms of employment, the breach was at the serious end of the spectrum. Pursuant to Section 7 of the 1994 Act, an award of four weeks’ remuneration is just and equitable in all the circumstances.

CA-00048303-002 – Terms of Employment (Information) Act 1994

Relevant Law:

Section 5 of the 1994 Act governs notification of changes and provides as follows:

5(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4 .

Redress:

Section 7 of the 1994 Act provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded.

Findings:

This is a complaint in respect of a failure to notify the Complainant of changes to his terms of employment.

The Complainant gave evidence that he commenced employment with the Respondent on the 15th November 2021 and that his hourly rate of pay was €12.50 per hour and he worked 5 days per week. On the 14th January 2022 the Complainant’s colleague contacted the Director on the Complainant’s behalf and was advised by the Director that his rate of pay would be reduced from €12.50 per hour to €11.00 per hour and that his hours/days of work would be reduced from 5 days to 2 days.

This was disputed by the Respondent who submitted that on the 23rd December 2021 it closed its café having advised the Complainant two weeks prior to the closure that the café would be closing as the Director was not in a position to continue trading. According to the Respondent the Complainant’s employment terminated on the 23rd December 2021 and the Complainant was provided with the appropriate notice. It was accepted by the Respondent that the Complainant’s colleague contacted the Director in January 2022 when the business re-opened inquiring about hers and the Complainant’s jobs. It was common case that the Director advised the Complainant’s colleague that hers and the Complainant’s details were passed on to the new manager running the café and he would be in contact with the Complainant. It was common case that the Complainant’s colleague was advised that a job was available for the Complainant for two days per week at €11.00 per hour. It was submitted by the Respondent that this was not a change of terms of employment as the Complainant's employment terminated on the 23rd December 2021 and that this was a new offer of employment.

In reply the Complainant denied that the Respondent’s café was closed down on a permanent basis. According to the Complainant a new chief was hired and a decision made to review the menus and refurbish the café and that the closure on the 23rd December 2021 was a temporary one to allow for the refurbishments to take place. The Complainant was advised on the 23rd December 2021 to go on the PUP pending further COVID-19 outbreaks but that he remained in employment with the Respondent. The Complainant’s colleague gave evidence that the Respondent’s premises re-opened on the 11th January 2022 and that neither herself or the Complainant were contacted regarding their hours of work. The Complainant’s colleague saw a notification for new staff which prompted her to contact the Director on the 14th January 2022 seeking a return to work date for herself and the Complainant.

While it was common case that the Complainant’s employment commenced on the 15th November 2021 the parties differ as to how and when it ended. Taking account of the evidence of the Complainant and the witness on behalf of the Respondent and the oral and written submissions and documentation presented on behalf of the parties I resolve the conflicts in evidence in the Complainant’s favour and find that the Complainant remained employed by the Respondent on the 14th January 2022 when the Complainant’s colleague was advised by the Director orally that the Complainant’s hourly rate was being changed from €12.50 per hour to €11.00 and his hours/days of work changed from 5 days per week to 2 days per week.

Having considered the evidence adduced by the parties and the oral and written submissions made by and on behalf of the parties I find that the Respondent has failed to establish compliance with Section 5 of the 1994 Act and the complaint is well founded. Pursuant to Section 7 of the 1994 Act, an award of two weeks’ remuneration is just and equitable in all the circumstances.

CA-00048303-003 – Terms of Employment (Information) Act 1994

Relevant Law:

Terms of Employment:

Section 3(1A) of the 1994 Act obligates an employer to provide employees with certain essential information in written form within five days of commencing employment and provides as follows:

“3(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week. … ”

Redress:

Section 7 of the 1994 Act provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded.

In Beechfield Private Homecare Limited v. Megan Hayes Kelly, TED1919, the Labour Court awarded the maximum of four weeks’ remuneration. Here the Chairman of the Court noted “[i]n determining the appropriate level of compensation it should award in a particular case, the decision-maker must take into account all the relevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum …”.

In Javier Fernandez Torres v. Sitting Tree Limited T/A Harbour Bar, TED2213, the Labour Court awarded the maximum of four week’s remuneration stating in its “Discussion and Decision” that “[i]t is abundantly clear from the facts as accepted by both Parties that the Respondent did not issue the Complainant with a five-day statement of terms and conditions in accordance with section 3(1A) of the Act.”

Findings:

The Complainant commenced employment with the Respondent on the 15th November 2021. It was accepted by the Respondent that the Complainant’s core terms of employment pursuant to Section 3(1A) of the 1994 Act were not provided in the manner prescribed under the legislation. Consequently, the Respondent breached Section 3(1A) of the 1994 Act and the complaint is well founded.

It was submitted on behalf of the Respondent that regard should be had to the Complainant’s length of service, that the Complainant suffered no actual loss, that any issues were minor breaches and the fact that whilst the Complainant did not receive a written statement of his terms of employment and any issues have been addressed and rectified by the Respondent however I find that there was no evidence before the WRC that this was the case. 

I have taken into consideration the submissions by and on behalf of the parties and the above Labour Court determinations. Given the circumstances of the case there is no longer a requirement to furnish a written statement of the Complainant’s core term of employment. As the Respondent failed to provide any statement in writing on the Complainant’s core terms of employment, the breach was at the serious end of the spectrum. Pursuant to Section 7 of the 1994 Act, an award of four weeks’ remuneration is just and equitable in all the circumstances.

CA-00048303-004 – Payment of Wages Act 1991

This complainant was withdrawn at the hearing.

CA-00048306-001:I decide that this complaint is well founded for the reasons set out above and order the Respondent to pay to the Complainant compensation of €1,550.00 being a sum that is just and equitable having regard to all the circumstances.

CA-00048306-002:I decide that this complaint is well founded for the reasons set out above and order the Respondent to pay to the Complainant compensation of €775.00 being a sum that is just and equitable having regard to all the circumstances.

CA-00048306-003:I decide that this complaint is well founded for the reasons set out above and order the Respondent to pay to the Complainant compensation of €1,550.00 being a sum that is just and equitable having regard to all the circumstances.

CA-00048306-004: This complainant was withdrawn at the hearing.