Complainant

Respondent

Parties

Aimee  Mulligan

Gopack Limited trading as The Newbury Hotel

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Mr. Michael O'Sullivan, Arra HRD

Act

Complaint 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-00057378-001

27/06/2023

The Complainant commenced employment with the Respondent on 7th September 2022. The Complainant received an average weekly payment of €398.97. While the Complainant was still in the Respondent’s employment on the date of the referral, she subsequently terminated her employment on 18th July 2023.

On 27th June 2023, the Complainant referred the present complaint to the Commission. Herein, she alleged that the Respondent had failed to provide a reasoned reply to a request for more predicable and secure working conditions within one month of a request in relation to the same. By response, the Respondent submitted that no such request was made by the Complainant, and that the complaint was misconceived.

A hearing in relation to this matter was convened for, and finalised on, 10th October 2023.This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

No issue as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

The Complainant was employed as a bar tender by the Respondent. The Complainant usually worked on the evening shift, for approximately thirty hours per week. Given that the premises would usually not be busy at this time, the Complainant generally worked alone.

On Sunday 18th June 2023, the Complainant was obliged to call the Gardaí in relation to two customers that became aggressive and hostile whilst she was working alone. Following the same, the Complainant became concerned that she was unsafe working alone in the premises in the evening and requested to be put on the morning shift. By response, her former employer stated that no such shifts were available. In addition to the same, when the Complainant checked the following week’s roster, she noticed that she received no shifts at all. The Complainant submitted that the following was a breach of her contractual entitlement to receive at least thirty hours per week. She further submitted that she was not paid for the hours on which she was forced to go home as a result of the actions of the customers.

By response, the Respondent submitted that at or near the commencement of the Complainant’s employment she received a statement of terms of employment. They submitted that this document complied with the requirements of Section 3 of the Act, and as such, the Complainant’s application should fail.

Section 3(1) of the Act (as amended) provides that,

“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”

In addition to the same Section 3(1)A of the Act provides that,

“…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…

(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 remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000.”

In this regard, the Respondent opened a statement of terms issued to the Complainant. In addition to the same, they opened a document confirming that the Complainant received the same on 26th September 2022. In circumstances whereby the Complainant commenced employment some 19 days previously, I find that the Respondent is in breach of Section 3(1)A listed above, and the complaint is deemed well-founded.

Regarding the other issues raised by the Complainant, the impleaded Act obliges the Respondent to issue a statement of terms in writing in the manner outlined above. As explained to the parties during the hearing, the Act has no application in respect to the subsequent enforcement of those terms.

I find that the complaint is well-founded, and consequently the Complainant’s application succeeds.

Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks’ remuneration in respect of breach of the Act. Having regard to the totality of the evidence presented, I award the Complainant the sum of €398.97, or one week’s remuneration, in compensation.

Terms of Employment, Enforcement, 5-day statement