ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00048837
Parties:
| Complainant | Respondent |
Parties | Gerhardus Kotze | O’Connor S/S Tralee Ltd t/a Joe O’Connor Spar Express & Circle K |
| Complainant | Respondent |
Representatives | Self -Represented | Shop Owner/Manager Mr C |
Complaint:
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-00058651-003 | 04/09/2023 |
Date of Adjudication Hearing: 31/01/2024
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
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.
Opening Legal Issues:
1: Name of Respondent.
The Respondent pointed out that a Trading name (Joe O’Connor Spar Express & Circle K) had been cited by the Complainant. The correct Legal name of the Respondent (O’Connor S/S Tralee Ltd) had not been used. In strict legality the compliant could be deemed to be misfounded.
However, following some discussions, it was agreed to proceed with the Hearing with the name amended in the decision.
2; Time Limits for Complaint
The Respondent raised the issue that the focus of the Complaint was an interpretation of the Contract of Employment which had been issued in March 2022 shortly after the recruitment of the Complainant. A WRC referral in September 2023 was clearly out of time as per Section 41 of the Workplace Relations Act,2015.
The Complainant argued that the issues in contention (lack of specific working hours /starting and finishing times) were ongoing and fell well within the 6-month rule.
Following some further discussions, it was accepted that the Complainant had been raising the issues for some time, for example, as late as June 2023. It was the view of the Adjudication Officer that this allowed the complaint to be within time.
Background:
The issue in contention concerns an allegation that the Complainant, a Retail Manager, never received a proper, as required by the Act, statement of the Hours of Work, Starting & Finishing times and the total weekly hours required by his Employer, a Retail Operation. The employment began on the 22nd March 2022 and ended on the 21st August 2023. The rate of pay was stated by the Complainant to have been € 634 for a 52-hour week. |
1: Summary of Complainant’s Case:
The Complainant gave an oral testimony supported by some written materials. He had begun successfully in March 2022 and had worked well. However, it soon became clear that he had no fixed working hours and was very largely on his own devices. He had raised the issue of the basic “looseness” of his contract on a number of occasions with both Mr C and Mr E but to no avail. In addition, in 2023, Mr C had begun making changes to the Shop mostly Retail Display issues without any consultation. There were also minor issues regarding the Complainant taking some personal time off for Medical /Dental appointments. The Owner Managers had not been very welcoming to these requests. Eventually the Complainant resigned in August 2023 to take up another Retail position in the same geographical area. |
2: Summary of Respondent’s Case:
The Respondent /Owner Manager, Mr C, gave an oral Testimony supported by some written materials. In essence the argument was that the Complainant was hired as an experienced Retail Manager with full responsibility for Staff Rosters and the general running of the Shop. The contract stated “Hours of Work The operating hours of the business are from Sunday to Saturday. Your hours of work will be as you manage to require to complete the job. The Manager may be required to work such further hours as may be necessary to fulfil his/her duties, or the needs of the business. Wherever possible, the Store Operator, will give the Employee reasonable notice of any additional hours, if deemed necessary. You are required to comply with the Company’s system of recording hours of work and breaks in accordance with the Working Time Act.”
The Respondent basically argued that the Complainant had been hired as a Senior Manager and it was not normal for a Senior Employee to be examining the “small print” of his Contract. He had been given very significant responsibilities and virtually complete discretion as to his hours. If the Respondent was in breach of some of the detailed Sections of the Act it was completely without any bad intention towards the Complainant. There were absolutely no grounds for any compensatory awards. The Complainant had not suffered any material or financial losses.
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3: Findings and Conclusions:
3:1 The Legal Position Section 3 of the Terms of Employment (Information) Act, 1994 provides as follows – (relevant sub clauses selected by Adjudicator.) Written statement of terms of employment. 3.— (1) An employer shall, not later than one month 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— (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.
3:2 Adjudication view
There was no doubt that there were various technical breaches of the strict requirements of the Act in this case. This was effectively accepted by the Respondent.
However, the context is important. The Complainant was a Senior Employee who was very experienced in retail management. He suffered no ill effects other than a souring of relationships with the Owner/ Managers.
It has to be stated that that an Employer has full Legal responsibilities to all employees, irrespective of rank or status . However, it is well recognised that Senior Management jobs are not generally based on detailed small print in an Employment Contract.
Senior Executives are expected to do what is required. If there is a dispute the normal outcome is, as in this case, the Parties end the relationship.
Any Redress under Section 7 must reflect this overall background.
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4:
Decision:
CA: 00058651-003
Section 41 of the Workplace Relations Act 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 require that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts.
Section 6 of the Terms of Employment (Information) Act, 1994 provides as follows
(The quote is abbreviated by the Adjudication Officer to refer to only those sections appropriate to this case case.)
(2) A decision of an adjudication officer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, shall do one or more of the following, namely—
(a) declare that the complaint was or, as the case may be, was not well founded,
(b) either—
(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, or
(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,
(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,
(d)in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.
(e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.
In this case, having reviewed all the Oral and Written evidence, the decision has to be that the complaint was Well Founded.
The amount of Redress Compensation is related to the overall context and has to be seen as Just and Equitable. Sub Section (d) above applies.
The Complainant suffered no upfront financial losses in this case. It could be argued that the issues regrading his working times and duration of this week might be the basis of a retrospective claim. However, this was not raised as an issue.
Labour Court precedents in situations of this nature have tended to small or in some cases NIL awards.
Bearing in mind that the Complaint is well founded and that there were technical breaches of the Act that appeared to have arisen due to the Respondent Employer’s “Catch All” view of a Manager’s role /working hours a redress award of two days’ pay €253 is appropriate.
This sum to be paid to the Employee as Compensation for Breach of a Statutory Right or preferably to a local Charity such as the Society of St Vincent de Paul in the town concerned. (The Parties may if , they wish, agree on an alternative Charity.)
Dated: 05/04/2024
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Working Time , Manager duties. |