ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00049429
Parties:
| Complainant | Respondent |
Parties | Ciara Georgina Dwyer | Taoufik Hammami trading as Fly Coffee |
Representatives | Mr Jamie Murphy, Independent Workers Union | Mr Peter Dunlea, Peninsula |
Complaint:
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-00060664-001 | 21/12/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00060664-002 | 21/12/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00060664-003 | 21/12/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00060664-004 | 21/12/2023 |
Date of Adjudication Hearing: 07/05/2024
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 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 and to present any evidence relevant to the complaints. The hearing was held in the Hearing Rooms, Workplace Relations Commission (WRC), Cork. Detailed submissions were made by both parties in advance of the hearing. The complainant, Ms Dwyer applied and was granted permission to join the hearing remotely as she was working abroad. She gave evidence under affirmation. The complainant’s witness, Ms Lizak also gave evidence under affirmation. Mr Hammami gave evidence for the respondent under oath.
Background:
The complainant worked as a Barrista, earning €11.30 per hour. She worked from 28th August 2022 and to 30th July 2023 when she resigned. She claims that she had to resign her employment due to the treatment by the respondent after she joined a trade union. She claims constructive dismissal. She also claims that she did not receive her core terms of employment or an employment contract. She claims she was given less than 24-hour notice of her working times on many occasions. She also claims did not receive a Sunday premium payment. The respondent accepted that an employment contract was not issued within the statutory period although submits the complainant was not unduly prejudiced by this. The respondent also accepted that on occasion the complainant did not receive adequate notice of her working hours. The respondent denies in full the non-payment of Sunday premiums and denies there was a constructive dismissal arising from the complainant’s trade union membership. |
Summary of Complainant’s Case:
Summary of Ms Dwyer’s Evidence The complainant gave evidence of her employment hours. She initially worked part-time and then her hours increased. It was her first job, and she did not enquire about an employment contract. She said she received less than 24-hour notice of her hours on many occasions. She said that Mr Hammami behaved in an uncivil manner towards her, and this was sometimes in front of customers. She worked up to 40/50 hours in some weeks and then in mid-July 2023 after her union contacted Mr Hammami, her hours reduced to 15/20 hours per week. She said she often worked alone and felt unsafe at times. She had informed Mr Hammami of a difficult customer and had to contact the gardai herself on one occasion. Under cross-examination by Mr Dunlea, the complainant was asked why she never requested a contract. She replied that it was her first job and did not know her rights. She was asked when she was called in at very short notice and replied that this occurred regularly. She was asked about her resignation text which did not mention trade union activity or membership. She was asked about the uncivil treatment and the dates when this arose. She replied that it was in May & June 2023. She was asked about the initial union correspondence to Mr Hammami on 18th July 2023 and whether she was aware of contact by him with her union. She was asked about her awareness of business costs and steps being taken by Mr Hammami to minimise costs. She confirmed that she did not discuss the union with Mr Hammami. She said that her reasons for resigning related to her personal safety along with her treatment after joining the union. She confirmed that she worked six Sundays from 22nd June 2023 up until her resignation. Summary of Ms Lizak Evidence Ms Lizak worked as a Barrista for the respondent from April 2023. She was paid for annual leave although did not receive a Sunday premium. She said she was also called in at short notice on several occasions and a proper roster was only in place on two occasions. She worked 20-24 hours per week and after the correspondence from the union, she received less hours. She said Mr Hammami was uncivil at times and raised his voice particularly on one occasion when she was training another staff member. Under cross-examination, Ms Lizak confirmed that she left the employment in mid-July 2023. She started another job within two weeks. She was asked whether the uncivil treatment existed prior to the union correspondence on 18th July 2023, and she confirmed it had. Summary of Closing Submission Mr Murphy summarised the complaints as per the submission. He claimed that there was no documentary evidence on payslips of Sunday premium payments. He outlined that the reason for the resignation arose from the complainant’s union membership. She was treated in an uncivil manner and had her hours reduced after the union contacted her employer. |
Summary of Respondent’s Case:
Summary of Mr Hammami’s Evidence Mr Hammami gave evidence that the complainant jointly inputted into the work diary. He often agreed that the business could close early when it was not busy and that he had employed the complainant’s friends. When contacted by the union in July 2023, he took steps with the accountant to pay holidays and arrange for contracts. The union never mentioned the names of staff and he did not want to know as he was taking steps to resolve issues. He said he did not think he raised his voice although he admitted on one occasion that he was not satisfied with the presentation of a food order by a staff member. He said he had to take steps to reduce costs, and this was the reason for reducing hours. He included Sunday premium at time and a quarter with normal pay shortly after the issue was raised in July 2023. Under cross-examination by Mr Murphy, he was asked about protective measures for staff. He replied that he went to the Garda station to report a customer’s behaviour. He was asked about Sunday premium and why it was not referenced on payslips. He replied that it was included in the overall payments made to staff. Summary of Closing Submission Mr Dunlea submitted that the reasons for resigning were included in a text to Mr Hammami and it did not mention union membership. The reason for a reduction in hours related to rising costs and steps to sustain the business. Mr Hammami responded to union correspondence and paid holidays and was taking other steps on employment contracts as requested by the union. The complainant had not used the grievance procedure prior to resigning. Any breach of the Working Time Act were technical breaches and reliance was placed on the case law in the respondent’s submission. |
Findings and Conclusions:
CA-00060664-001- Terms of Employment (Information) Act 1994 The Act provides for the employer to issue employees’ with statements of core terms of employment. The respondent conceded at the hearing that a statement of terms of employment did not issue to the complainant as prescribed under the Act.
In accordance with Section 7 of the Act, I declare that the complaint is well founded.
As per Section 7 of the Act, there is provision to pay the employee compensation of such amount as the adjudicator considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration.
I do not agree with the respondent representative that the complainant was not unduly prejudiced by not having an employment contract. Issues subsequently arose on core terms of employment which could have been avoided if these were on notice to the complainant.
As this is a significant breach of statute, I order the respondent pay the complainant compensation of €1,356 which is 4 weeks remuneration. CA-00060664-002- Organisation of Working Time Act- Sunday Premium Section 14 of the Act provides as follows: 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 by the following means, namely— (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or (b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or (c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or (d) by a combination of two or more of the means referred to in the preceding paragraphs There is a conflict in evidence as to whether Sunday premium of time and a quarter was paid to the complainant for the six Sundays worked within the cognisable period from 22nd June 2023. The complainant’s witness also gave testimony that she was not paid a Sunday premium. I am satisfied that the complainant was not advised in writing that her rate of pay included a Sunday premium. I am also satisfied that her payslips did not set out the Sunday premium allegedly included. I declare the complaint of a breach of section 14 of the Act is well founded. I decide that it is just and equitable in all the circumstances to require the respondents to pay the premium of a quarter for the 37.5 hours worked on the six Sundays within the cognisable period. I calculate this payment as €106. CA-00060664-003- Organisation of Working Time Act- Notification of Hours Section 17 of the Act provides: 17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week. Based on the evidence, I am satisfied that on dates during the cognisable period the complainant was not given 24 hours’ notice of start and finishing times. The Labour Court in Musgrave Limited v Vasilijevs DWT1825 set out that a worker is entitled to 24 hours’ notice of their start and finishing times to enable them to reconcile their work/life commitments. I declare the complaint of a breach of section 17 of the Act is well founded. In the circumstances, I decide it is just and equitable to require the respondents to pay to the complainant compensation of €300. CA-00060664-004-Complaint under Unfair Dismissals Act The Law Section 6(2) of the Unfair Dismissals Acts provides that, “…the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following; (a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage, The fact of dismissal is in dispute. The complainant resigned and is claiming constructive dismissal. The onus is on the complainant to establish that she had no other option but to resign. The two well established tests for constructive dismissal are the ‘contract test’ and ‘reasonableness test.’ In Western Excavating Ltd v Sharp [1978] IRLR 332, Lord Denning described the test as asking whether the employer ‘conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, and if so, the employee is justified in leaving.’ The test as per Berber v Dunnes Stores Limited [2009] IESC 10 is as follows- a, The test is objective. b, The conduct of both employer and employee be considered. c, The conduct as a whole and accumulative effect must be looked at. d, The conduct of the employer must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it such that the employee cannot be expected to put up with it. Applying the Law to the Facts The main evidence of the complainant is that she was treated in a more uncivilised manner and her hours were reduced arising from the union representations to her employer of 18th July 2023.
Contract Test Although there was no actual written contract in place, the complainant had an implied contract consisting of the hours normally worked over the period. She claims there was a reduction in her normal hours. The reduction in hours is not contested as Mr Hammami’s testimony is the reduction in hours was required to reduce business costs.
Reasonableness Test The claim is that Mr Hammami acted in a more uncivilised manner after the trade union representations. At this time, the complainant also said that she had concerns for her personal safety. This safety issue was included in the resignation text on 30th July 2023 when the keys were handed back. Mr Hammami gave evidence of steps he took by visiting the Garda station to report the behaviour of a customer.
Grievance Procedure Mr Dunlea outlined that the grievance procedure was not used, nor did the complainant give advance notice of her issues prior to resigning. He also referred to case law on constructive dismissal. It is an established requirement in constructive dismissal cases to use the grievance procedure before resigning, if possible. This ensures the employer is on notice and attempts can be made to resolve issues.
Finding In the first instance, I need to determine whether the complainant was dismissed before she can avail of the protections on trade union membership as per Section 6 (2) (a) of the Act. I need to examine the work environment and the behaviour of the parties prior to and at the time of resignation. It is common case that there is a higher threshold to prove a constructive dismissal, as there is a requirement to show the contract was breached and/or that the employer acted so unreasonably that the only option was to resign. Prior to resignation, the onus is on the complainant to use the grievance procedure to put management on notice to allow for resolution of the issues.
There is no conflict in evidence that hours were reduced. The complainant did not raise a grievance or complaint in relation to the reduction in hours and/or the uncivil treatment by Mr Hammami other than on the day of resignation. At this stage, she was a member of a trade union and could have obtained advice on how to raise this concern. Improvements on working conditions were already underway due to earlier representations from her union. It is possible the reduced hours were due to the necessity to cut costs as per the testimony of Mr Hammami.
The text message of 30th July 2023 giving reasons for resigning only related to safety concerns and did not mention hours or uncivil treatment by Mr Hammami. The period between the union representations on 18th July and the resignation on 30th July 2023 is short and there is no evidence of adequate steps taken by the complainant to highlight her issues either directly with Mr Hammami or through her union. On an objective assessment of the evidence, I am not satisfied that the test as per Berber has been met. For the reasons outlined, I find that the complainant was not constructively dismissed and that she resigned. Therefore, as I have decided there was no dismissal, there is no requirement to engage in whether any adverse treatment arose wholly or mainly from the complainant’s trade union membership. |
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.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00060664-001- Terms of Employment (Information) Act 1994 I declare the complaint well founded and order the respondent pay the complainant compensation of €1,356 which is 4 weeks remuneration. CA-00060664-002- Organisation of Working Time Act- Sunday Premium I decide the complaint is well founded and it is just and equitable in all the circumstances to require the respondents to pay €106 to the complainant.
CA-00060664-003- Organisation of Working Time Act- Notification of Hours I decide the complaint is well founded and it is just and equitable to require the respondents to pay to the complainant compensation of €300.
CA-00060664-004-Complaint under Unfair Dismissals Act I find that the complainant was not unfairly dismissed. |
Dated: 28/05/2024
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Key Words:
Terms of Employment, Organisation of Working Time Act, Unfair Dismissal |