ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045083
Parties:
| Complainant | Respondent |
Parties | Alizera Taatefi | Italian Cucina Limited |
Representatives | Peter Connolly , Solicitor of Peter Connolly Solicitors | Un-Represented Non-Attendance at Hearing |
Complaints:
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-00055833-001 | 30/03/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00055833-002 | 30/03/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00055833-003 | 30/03/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00055833-004 | 30/03/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00055833-005 | 30/03/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00055833-006 | 30/03/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00055833-007 | 30/03/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00055833-008 | 30/03/2023 |
Date of Adjudication Hearing: 06/02/2024
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015; Section 8 of the Unfair Dismissals Acts, 1977 – 2015; Section 7 of the Terms of Employment (Information) Act, 1994 ; Section 12 of the Minimum Notice & Terms of Employment Act, 1973 and Section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury was explained to all parties.
No issue regarding confidentiality arose.
Background:
The issues in contention concern the alleged Unfair Constructive Dismissal of a Chef, with allied linked Working time and Employment information complaints, by a Restaurant.
The Employment began on the 5th December 2021 and ended on the 24th January 2023. The rate of pay was stated to have been €672 for a variable but generally 48 + hour week.
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1: Summary of Complainant’s Case:
(As an assistance in view of there being 8 separate complaints a Tabular format will be used.)
The Complainant gave a lengthy Oral Testimony supported by a Comprehensive Written Submission. The chief spokesperson was Mr Connolly, Solicitor. The Spokesperson adverted to the fact that the Complainant was not a native English Language speaker and this factor had been used against him at all times by the Respondent who had behaved, it was alleged, outrageously.
Act | Complaint/Dispute Reference No. | Summary evidence presented. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00055833-001 | A comprehensive litany of alleged Employer breaches of legislation was presented. The behaviour of the Respondent Employer was clearly “Unreasonable” and in “ fundamental breach” of any reasonable Employer/Employee relationship. The Complainant was left with no, option but to resign his position effective from the 24th January 2023. There were absolutely no normal employer/employee procedures as required by SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures. The Complainant was left with no option but to resign to protect his Health and his Dignity. On any objective review it was a clear case of Constructive Dismissal.
Considerable oral testimony was presented supported by a small amount of Work Documentation. |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00055833-002 | The Complainant did not receive a Written Statement of his Terms and Conditions of Employment. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00055833-003 | The Complainant did not receive any proper Work Breaks as required by the Act.
Oral testimony and very minimal Complainant work diary entries were cited in evidence. It had to be noted that the Complainant, on his own behalf, did not have any access to Employer records. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00055833-004 | The Complainant was regularly expected to work well in excess of the Statutory Working Time limits.
Oral Testimony and very minimal Complainant work diary entries were cited in evidence. No Employer records available. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00055833-005 | The Complainant was not afforded any proper Annual Leave in keeping with the Legislation.
Oral Testimony and very minimal Complainant work diary entries were cited in evidence. No Employer records available. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00055833-006 | The Complainant did not receive proper Public Holiday entitlements
Oral Testimony and very minimal Complainant work diary entries were cited in evidence. No Employer records available. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00055833-007 | The Complainant did not receive any Statutory Minimum notice on the conclusion of his employment.
Pay Slips were presented to substantiate this complaint. No Employer records available. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00055833-008 | The Complainant was often expected to work excessive late night hours.
Oral Testimony and very minimal Complainant work diary entries were cited in evidence. No Employer records available. |
2: Summary of Respondent’s Case:
The Respondent did not attend the Hearing . No evidence was presented . The Adjudicator was satisfied that proper notice of the time, place and date of the Hearing had been served. The Complainant evidenced CRO Records to demonstrate the address of the Respondent and their Trading Status as “Normal” as of February 2024. |
3: Findings and Conclusions:
3:1 Opening Adjudicator comments The Complainant submitted Written evidence of e-mails and text messages with the Respondent supported by screen shots and “camera pics” of very elementary work schedules. His Oral Testimony was heartfelt and appeared very sincere. In the experience of the Adjudication Officer the balance of probability lay with the Complainant. The non-appearance of the Respondent did not allow any rebuttal evidence to be considered or any cross examination of the Respondent , by Mr Connolly for the Complainant. Accordingly the conclusions set out below were made by the Adjudication Officer. 3:2 Adjudication Conclusions.
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4: Decision:
Section 41 of the Workplace Relations Act 2015 ; Section 8 of the Unfair Dismissals Acts, 1977 – 2015; Section 7 of the Terms of Employment (Information) Act, 1994 ; Section 12 of the Minimum Notice & Terms of Employment Act, 1973 and Section 27 of the Organisation of Working Time Act, 1997 require that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.
Having carefully considered all the Oral testimony and Written materials presented the Redress awarded is set out below.
4:1 Summary Redress Awarded.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
CA-00055833-001 Unfair Dismissal
The Complaint is Well Founded.
A finding of Constructive Unfair Dismissal is made.
As the Complainant was and remained, at the date of the Hearing, on long term sick leave since the the ending of employment with the Respondent the maximum award that can be made is Four Weeks’ Pay ( Section 7 of the UD Act,1977)
Accordingly an award of four week’s pay (€672 x 4 ) = € 2,688 is made in favour of the Complainant.
4:2 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
CA-00055833-002 Statement in Writing of T & Cs
The Complaint is Well Founded.
Under Section 7(2) (d) of the Terms of Employment (Information) Act, 1994 a Redress award of two week’s pay (€ 672 x 2) = €1,344 is made in favour of the Complainant
This is Compensation for Breach of a Statutory Right and is not Renumeration.
4:3 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
CA-00055833-003 Work Breaks
The Complaint is Well Founded.
In accordance with Section 27 (3) (c) of the Organisation of Working Time Act, 1997 a Compensation award of two week’s pay ( € 672 x 2) = €1,344 is made in favour of the Complainant .
This is Compensation for Breach of a Statutory Right and is Not Renumeration.
4:4 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
CA-00055833-004 Working Time limits
The Complaint is Well Founded.
In accordance with Section 27 (3) (c) of the Organisation of Working Time Act, 1997 a Compensation award of two week’s pay ( € 672 x 2) = €1,344 is made in favour of the Complainant .
This is Compensation for Breach of a Statutory Right and is Not Renumeration.
4:5 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
CA-00055833-005 Annual Leave
The Complaint is Well Founded.
In accordance with Section 27 (3) (c) of the Organisation of Working Time Act, 1997 a Compensation award of two week’s pay ( € 672 x 2) = €1,344 is made in favour of the Complainant .
This is Compensation for Breach of a Statutory Right and is Not Renumeration.
4:6 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
CA-00055833-006 Public Holidays
The Complaint is Well Founded.
In accordance with Section 27 (3) (c) of the Organisation of Working Time Act, 1997 a Compensation award of two week’s pay ( € 672 x 2) = €1,344 is made in favour of the Complainant.
This is Compensation for Breach of a Statutory Right and is Not Renumeration
4:7 Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973
CA-00055833-007 Minimum Notice
The Complainant resigned from his position albeit in a Constructive Dismissal situation. Statutory Minimum Notice does not apply. No award can be made.
The Complaint is Not Well founded.
4:8 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
CA-00055833-008 Excessive Night hours
The Complaint is Well Founded.
In accordance with Section 27 (3) (c) of the Organisation of Working Time Act, 1997 a Compensation award of two week’s pay ( € 672 x 2) = €1,344 is made in favour of the Complainant. .
This is Compensation for Breach of a Statutory Right and is Not Renumeration
4:9 Payments of Redress amounts.
The Redress amounts indicated above should be paid by the Respondent as soon as is convenient but certainly within a period of eight weeks from the publication of the Adjudication decision.
Dated: 12th of April 2024
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Unfair Constructive Dismissal , Working Time Act complaints, Information Act complaints. |