ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00047644

Parties:

Complaints:

Date of Adjudication Hearing:  08/02/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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.

Background:

The Complainant was employed by the Respondent from 9th April 2021 to 24th June 2023.

The complaints were received on 9th August 2023.

She submitted 13 complaints, many of which were not relevant to the employment sector in which she was employed.  The following complaints were withdrawn at hearing:

CA-00058186-001           Industrial Relations (Amendment) Act, 2015

CA-00058186-002           European Communities (Organisation of Working Time) (Civil Aviation Regs)

CA-00058186-003           Industrial Relations Act, 1946

CA-00058186-004           Industrial Relations Act, 1946

CA-00058186-006           European Communities (Mobile Road Transport Activities) Regulations 2012

Summary of Complainant’s Case:

The Complainant was employed in the Respondent’s fast food takeaway business.  Her current employment there was from 9th April 2021 to 24th June 2023.  She generally worked weekends, and was paid €207 per week, except when she worked extra hours and was paid €230 cash when she worked extra hours.

CA-00058186-005           Terms of Employment (Information) Act 1994

The Complainant contends that she was not given written terms of conditions of employment.

CA-00058186-007           Unfair Dismissals Act 1977

The Complainant gave sworn evidence.  She confirmed that for the period she worked for the Respondent she received no written contract, no holiday pay and no public holiday pay. She stated that the Respondent was going away for 4 weeks in July 2023 and as she was worried about being paid she asked about holiday pay.  The Respondent’s wife said that would be sorted out.  The Respondent said she would not be paid until they returned and if she didn’t like that she knew where the door was.   She sought advice and gave the Respondent a form for them to confirm she was being temporarily laid off.  The Respondent was annoyed at this and would not sign the form.  She stated that since early on in her employment, she was subject to inappropriate remarks from the Respondent and asked about her love life.  She could no longer put up with the situation.  She contended that she had been bullied and harassed by the Respondent for some time and that she left the employment in 2022 but the Respondent’s wife begged her mother to get her back to work.     She could no longer put up with the situation after the Respondent refused to pay her holiday pay, refused to sign the social welfare form and told her “there’s the door, bye bye”.

CA-00058186-013           Organisation of Working Time Act 1997

The Complainant seeks compensation for working on Sundays.  She stated on her complaint form that she worked 118 Sundays since 9th April 2021 and claims time and a half for each one.

CA-00058186-014           Payment of Wages Act 1991

The Complainant seeks compensation for working on Sundays.  She stated on her complaint form that she worked 118 Sundays since 9th April 2021 and claims time and a half for each one.

CA-00058186-015           Organisation of Working Time Act 1997

The Complainant claims she did not receive payment for annual leave.

CA-00058186-016           Organisation of Working Time Act 1997

The Complainant seeks payment for public holidays.

CA-00058186-017           Organisation of Working Time Act 1997

The complaint is that the Respondent failed to provide the Complainant with advance notice of working hours.

CA-00058186-018           Organisation of Working Time Act 1997

The Complainant seeks compensation for public holidays pay not received on cessation of her employment.

Summary of Respondent’s Case:

CA-00058186-005           Terms of Employment (Information) Act 1994

The Respondent Mr A gave sworn evidence.  He submitted that he had not given written terms to the Complainant but had a written agreement with her mother.  He spoke about GoFund Me page and a car loan being repaid by the Complainant and/or her mother.

CA-00058186-007           Unfair Dismissals Act 1977

The Respondent Mr A gave sworn evidence.  He stated that when the Complainant approached him about pay before he went away in July he told her she did not need to go to Social Welfare, that he would pay her when he got back.  She walked away from the job.  She had done this a few times before.  He denied that he had made inappropriate remarks.  It was the Complainant herself who talked about her boyfriend and personal life.

CA-00058186-013           Organisation of Working Time Act 1997

The Complainant seeks compensation for working on Sundays.   The Respondent stated that Sunday working was normal in his business and no compensation was due.

CA-00058186-014           Payment of Wages Act 1991

The Complainant seeks compensation for working on Sundays.   The Respondent stated that Sunday working was normal in his business and no compensation was due.

CA-00058186-015           Organisation of Working Time Act 1997

The Complainant claims she did not receive the correct amount of annual leave.  The Respondent stated that as far as he knew she was paid the correct pay for annual leave and this was reflected in her payslips.

CA-00058186-016           Organisation of Working Time Act 1997

The Complainant seeks payment for public holidays.  The Respondent stated that the Complainant worked weekends and not public holidays.

CA-00058186-017           Organisation of Working Time Act 1997

The complaint is that the Respondent failed to provide the Complainant with advance notice of working hours.  The Respondent stated that the Complainant worked weekends, generally Friday, Saturday and Sunday.

CA-00058186-018           Organisation of Working Time Act 1997

The Complainant seeks compensation for public holidays pay not received on cessation of her employment.  The Respondent stated that the Complainant did not work public holidays.

Findings and Conclusions:

The following complaints were withdrawn:

CA-00058186-001           Industrial Relations (Amendment) Act, 2015

CA-00058186-002           European Communities (Organisation of Working Time) (Civil Aviation Regs)

CA-00058186-003           Industrial Relations Act, 1946

CA-00058186-004           Industrial Relations Act, 1946

CA-00058186-006           European Communities (Mobile Road Transport Activities) Regulations 2012

CA-00058186-005           Terms of Employment (Information) Act 1994

I find there was no evidence of a standard written contract of employment provided to the Complainant.  Section 3 of the Act is specific in what should be contained in a written statement of terms of employment which Employers are obliged to provide to Employees.

I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €207 compensation.

CA-00058186-007           Unfair Dismissals Act 1977

The Complainant contends that when she enquired about holiday pay, she was “shown the door”.  The Respondent took great offence at being handed a Social Welfare form in relation to holiday pay or lay off.  The Complainant then left the job and was not contacted again by the employer.  The Complainant stated that she had been subjected to bad treatment and had left the job before and was persuaded to return.  I note the tensions and disagreements between the parties in evidence during the hearing.  The Complainant is claiming constructive dismissal.

The definition of constructive dismissal as provided for in the Unfair Dismissals Act 1977 (as amended) is:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

In a claim of constructive dismissal, the onus of proof rests with the Complainant to prove that the conduct of the employer was so unreasonable that that the employee cannot fairly be expected to put up with it any longer, and the employee is justified in leaving.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment.  In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

In this case while the Complainant made allegations about the employer’s behaviour, no formal complaint was made by her and due to the size of the employment it would have been difficult for to so do.  The significant point where she walked out was when she enquired about holiday pay and the Respondent treated her in a very dismissive manner even saying “there’s the door, bye bye”.           If the employee resigns in the heat of the moment, the employer has an obligation to follow up and enquire further.  This was not done in this case.  Given the circumstances, I uphold the Complainant’s complaint that she was unfairly dismissed by way of constructive dismissal.  I note the lack of the Complainant’s mitigation of her losses and I award her the sum of €828 compensation.  

CA-00058186-013           Organisation of Working Time Act 1997

The Complainant seeks compensation for working on Sundays. 

Section 14 of the Act provides:

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work…

In this case, the Complainant did not have a written contract of employment. Had she been supplied with such a written statement, it might have referred to Sunday working as being included in remuneration.   I note the Complainant was paid above the minimum wage.  I find that this constitutes compensation for Sunday working.  The Act provides for taking Sunday working into account in the determination of pay but does not specify what the amount should be for such working day.  In light of the fact that the Complainant was paid above the minimum wage, I find her complaint to be not well founded.

CA-00058186-014           Payment of Wages Act 1991

The Complainant seeks compensation for working on Sundays.   The Organisation of Working Time Act provides for the taking Sunday working into account in the determination of pay but does not specify what the amount should be for such working day. The Payment of Wages Act 1991 is designed to prevent the Employer from deducting from wages or failing to pay wages ‘properly payable’.    I find that this complaint is not well founded.

CA-00058186-015           Organisation of Working Time Act 1997

The Complainant claims she did not receive the correct amount of annual leave.  The complaint was received on 9th August 2023.  The cognisable period therefore is from 10th February 2023.  I note that the dispute which gave rise to the various complaints in this instant case centred around the refusal of the Respondent to pay the Complainant annual leave entitlements.

Section 19 (1) of the 1997 Act provides that

an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment)”.

I find that the Complainant was not provided with annual leave calculated in accordance with the provisions of Section 19 of the Act.  I require the Respondent to pay to the Complainant the sum of €828, being the monetary value of 4 weeks annual leave, together with the sum of €500 compensation.  I require the Respondent to pay to the Complainant the sum of €1,328. 

CA-00058186-016           Organisation of Working Time Act 1997

The Complainant seeks payment for public holidays.  The Respondent stated that the Complainant worked weekends and not public holidays.

The complaint was received on 9th August 2023.  The cognisable period therefore is from 10th February 2023.  In that period, there was 5 public holidays.

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

1. a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

I find the Complainant’s complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €345.

CA-00058186-017           Organisation of Working Time Act 1997

The complaint is that the Respondent failed to provide the Complainant with advance notice of working hours.  The Respondent stated that the Complainant worked weekends, generally Friday, Saturday and Sunday.  Section 17 of the Act provides that the employer should specify the normal or regular starting and finishing times of work of an employee.  In this instant case, I have been provided with no evidence that the Respondent failed to comply with this section of the Act.  I find the complaint to be not well founded. 

CA-00058186-018           Organisation of Working Time Act 1997

The Complainant seeks compensation for public holidays pay not received on cessation of her employment.  The Respondent stated that the Complainant did not work public holidays.  This is a duplicate of complaint CA-00058186-016 and I have found that complaint to be well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

The following complaints have been withdrawn and are closed:

 CA-00058186-001          Industrial Relations (Amendment) Act, 2015

CA-00058186-002           European Communities (Organisation of Working Time) (Civil Aviation Regs)

CA-00058186-003           Industrial Relations Act, 1946

CA-00058186-004           Industrial Relations Act, 1946

CA-00058186-006           European Communities (Mobile Road Transport Activities) Regulations 2012

CA-00058186-005           Terms of Employment (Information) Act 1994

I have decided that the complaint is well founded, and I require the Respondent to pay to the Complainant the sum of €207 compensation.

CA-00058186-007           Unfair Dismissals Act 1977

I have decided that the complaint is well founded and I award the Complainant the sum of €828 compensation. 

CA-00058186-013           Organisation of Working Time Act 1997

I have decided that the complaint is not well founded.

CA-00058186-014           Payment of Wages Act 1991

I have decided that the complaint is not well founded.

CA-00058186-015           Organisation of Working Time Act 1997

I have decided that the complaint is well founded.  I require the Respondent to pay to the Complainant the sum of €1,328. 

CA-00058186-016           Organisation of Working Time Act 1997

I have decided that the complaint is well founded. I require the Respondent to pay to the Complainant the sum of €345.

CA-00058186-017           Organisation of Working Time Act 1997

I have decided that the complaint is not well founded.

CA-00058186-018           Organisation of Working Time Act 1997

This is a duplicate of complaint CA-00058186-016 and I have decided that complaint is well founded.

Dated:  22nd March 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: