Worker

Employer

Anonymised Parties

A Deli Assistant

A Café

Representatives

Andrew McCann North Dublin Citizens Information Service

Mark Collins Tom Collins & Solicitors

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act 1969

CA-00048306-005

25/01/2022

The Worker commenced employment with the Employer 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 Worker referred a dispute to the WRC on the 25th January 2022 wherein he sought to return to work on his contracted hours and pay as agreed in November 2022 and payment for monies due and owing to him. At the date of the hearing the Worker had secured alternative employment.

The Worker's case was that he commenced employment with the Employer on the 15th November 2021 working approximately 31 hours per week at a rate of €12.50 per hour. On the 23rd December 2021 he was advised by the Employer that he was closing the café and he advised the Worker to go on the PUP with his support and that he would be in touch. The Worker submitted that between Christmas and early New Year the Employer recruited for new staff. The café re-opened on the 11th January 2022 and has been trading since that date Tuesdays to Sundays with new staff members.

The Worker stated that he was not contacted in early January 2022 with a return to work date. The Worker’s colleague contacted the Employer on the 14th January 2022 and was advised that there was a job for her and the Worker but that the Worker’s pay would be reduced from €12.50 per hour to €11.00 per hour and that his days of work would be reduced from five days per week to two days per week.

At the time of lodging his complaint the Worker was seeking to return to his job as contracted for verbally on the same terms and hours provided, however, at the date of the hearing the Worker stated that he had secured alternative employment.

The Employer stated that the Worker’s employment terminated on the 23rd December 2021 and that he was paid in full up to the termination date. The Employer’s café business closed down in December 2021 due to the chef leaving and COVID-19 restrictions limiting trade. The Worker was kept up to date throughout his employment of the status of the business. The Worker was provided with his notice. The Employer did not know if the café would re-open. When the café did re-open in January 2022 the hours of work and salaries on offer were lower due to limited trading. The Employer was contacted by the Worker’s colleague on the 14th January 2022 and he confirmed to her that there was a job available for the Worker two days per week on €11.00 per hour.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The Worker stated that he commenced employment with the Employer on the 15th November 2021 and that his hourly rate of pay was €12.50 per hour and he worked on average 31 hours per week. On the 14th January 2022 his colleague was advised orally by the Employer that the Worker’s rate of pay would be reduced from €12.50 per hour to €11.00 per hour and that his hours and days of work would be reduced from five days per week to two days per week. According to the Worker this was a change to his terms and conditions of employment.

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

In reply the Worker denied that the Employer’s café was closed down on a permanent basis. The Worker stated that a new chief was hired and a decision made to review the menus and refurbish the premises and that the closure on the 23rd December 2021 was a temporary one to allow for the refurbishments to take place. According to the Worker 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 Employer. The Worker stated that the Employer’s café re-opened on the 11th January 2022 and that he was not contacted regarding his hours of work. The Worker’s colleague saw a notification for new staff which prompted her to contact the Employer on hers and the Worker’s behalf on the 14th January 2022 seeking a return to work date for them both.

While it was common case that the Worker’s employment commenced on the 15th November 2021 the parties differ as to how and when it ended. I found the Worker to be an honest and credible witness and I resolve the conflicts in evidence in the Worker’s favour and find that the café closed on the 23rd December 2021 on a temporary basis and that the Worker remained employed by the Employer on the 14th January 2022 when his colleague was advised by the Employer that the Worker’s hourly rate was being changed from €12.50 per hour to €11.00 and his hours/days of work changed from five days per week to two days per week.

There was no documentation before me indicating a right on the part of the Employer to either layoff the Worker or put him on short time. In fact it was accepted by the Employer that the  Worker was not furnished with a statement in writing of his terms of employment nor was he furnished with a grievance procedure. He sought to resolve matters with the Employer to no avail and thereafter sought the assistance of the North Dublin Citizens Information Centre whom he authorised to advocate on his behalf in relation to his employment dispute with the Employer. The Worker’s representative attempted to resolve the Worker’s grievances to no avail. I therefore find in favour of the Worker.