Complainant

Respondent

Parties

Katie  Houlihan

Fitzili Enterprises Limited

Representatives

  Self Represented

 Mary Fitzgerald Director

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00066269-001

25/09/2024

The Complainant was employed from December 2021 to the summer of 2024 as a Bar Tender and worked for three years approximately 28 hours a week every Friday, Saturday and Sundy. She took leave of absence in June/July 2024 for 7 weeks (approx.) and when she returned she was not given any hours. She sought hours but was told none were available. She complains she was treated less favorably that a full time employee and was denied access to hours and was neither dismissed or resigned. The Respondent alleged the Complainant was a casual employee and her hours were flexible based on business demands and on the Complainants availability to work.

The Complainant had been working in the Respondent Bar as a Bar Tender for 2.5 years. She had requested to take 7 weeks annual leave in June and July 2024, which was approved in February 2024. Since August Bank weekend 2024, she had been available to return to work her regular hours every week. She advised she was informed by her employer that they did not have hours for her but she alleged new employees had been hired to cover her holidays and got her regular shifts. She advised she did not hand in a letter of registration nor has she received a letter of dismissal. She has made many attempts to sort out this issue with her employer who is now not responding. The Complainant submitted screenshots of text messages and letters sent to the Employer.

 The Respondent believed they have treated the Complainant well in her time as an employee.

 Extra bonuses were paid during busy periods / holidays & when she left for extended holidays which were several times during her employment period , holiday entitlements due were paid & bonuses gifted. Her shifts were organised to suit her other commitments/ study / exams & her former primary employment in another location.

The Complainant  notified the Owners son by text on 16/2 that she had booked flights & would be away from 14/6 until 21/7. He  texted the Complainant he had no work for her the weekend prior to her departure as he had to “train in new staff to take your place when you leave”.

The Complainant queried “ just wondering will there be hours for me after my holiday “ Reply from Owners son  “Sure give me a shout when you get back & we’ll see then. “

It later transpired that she was only home for 2 nights 21 & 22/7 but away again until 3/8 . So in total she was away on 2 separate trips the first in June for 5 weeks, to return for 2 days & then away again from 23/7- 3/8. Missing the busy bank holiday weekend. She sent text to offer to work the 2 nights she would be in Ireland on 21 & 22/7 the week prior but the Owners son  replied that he had no hours at that time as it was a disappointingly quiet summer . When the Complainant returned in August she was informed there were no hours at the moment & when she expressed she wanted a letter to that effect , the Owners son  made it clear if the situation improved with trade he would let her know. Following this the Complainant  made it clear she wanted compensation & in a desire to keep her happy the Respondent reminded her he gave her all holiday pay & a gift of €200 on her departure in June.

The Respondent in their evidence challenged the continuous nature of when the Complainant worked and alleged it was not continuous, that she did not work every Friday, Saturday and Sundays nights as alleged and she basically “worked when it suited her”. The Respondent also stated they did not want the Complainant not to be available at peak times but had no control over this.  The Respondent advised that a downturn in business meant they did not have the need to give the Complainant hours of work. Theye advised the agreement was casual in nature and there was no fixed or guaranteed hours of work between the parties.

Both parties advised the Hearing that they were open to finding an agreeable solution to the issue and were informed by the Adjudicator he had no role in trying to find a solution at the Hearing but if they parties wished to engage with each other after the Hearing that was their prerogative. No communication was received subsequent to the Hearing by the WRC that the matter was resolved directly by the parties.

The Parties submitted copies of texts and hours worked etc and from it I can conclude that the hours of work were varied, that the option to work was optional and that the Complainant could take time off with a degree of flexibility. In text messages the Complainant was asked many times was she available for work and a few times stated she could not but in general was available and worked 34 weeks in 2022, 48 weeks in 2023 and 23 weeks in 2024. The communication was, in general, always a “request” do you want to work. From the exchange of communications submitted it seems the parties had a very good personal and working relationship right up to the time the Complainant took an extended time off to go to America in the summer of 2024.  Why the good relationship  changed is not clear to the Adjudicator.

The facts of the case is the Complainant was employed on a written contract signed in December 2023 but with a commencement date of December 11th 2021. The Contract of employment states the following regarding hours of work and does not specify any particular working hours a week “Your working hours may vary from week to week, according to business requirements. Where business needs dictate a requirement for casual work, your manager will contact you to access your availability for work. Every effort will be made by management to give reasonable notice where a change is necessary.”

The Complainant alleged she worked every weekend, since June 2022, on Friday, Saturday and Sunday for 27.5 Hours. No evidence was provided to contradict this and the Complainants evidence generally supported this.  She also seems to have worked elsewhere during the week, which is her choice and has no material impact on this case. The Complainant made out that she was treated less favourably than another full time employee with regard to her hours of work when she was denied any hours of work.

In June 2024 the Complainant  took time off to go to the US. Her whats app message to the employer does not “ask” for the time off but stated she has her flights booked. It appears from other messages that the Complainant was always able to accept or decline the offer of work and engaged on the days she worked and start and finish times. In none of the communications do I see a requirement for the Complainant to accept work offered or to be available to work.

On returning  from America the Complainant made contact with the Respondent but there were no hours available. The Respondent stated this was mainly due to a downturn in business.

While this complaint is taken under the Protection of Employees (Part Time Work) Act 2001 it is necessary to first consider the legal frame work for terms of employment regarding hours of work in Ireland.

Section 3(1) of the Terms of Employment (Information) Act 1994 requires that a statement of terms of employment be given to an employee within two months of the commencement of employment.

With effect from March 2019, Section 3 1(A) of the Act provides the following obligation on an employer:

‘Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer 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:

Subsection (e) of the same subsection requires that the statement shall contain the following information:

the number of hours which the employer reasonably expects the employee to work-

(i)                  per normal day and

(ii)                per normal working week’

Accepting that the Respondent did provide a statement of terms and conditions to comply with Section 3(1) of the Act (albeit outside the 2 month time frame), the clause in that statement in respect of hours of work does not comply with the requirements of Section 3(1)(A)(e) as it does not specify either (i) or (ii) above.

The terms of the statement issued to the Complainant did not comply with the terms of Section 3(1)(A) (e)of the Act as revised. Recognising that the requirement to provide such information, to prevent the use of zero hours contracts such as that given to the Complainant, was introduced in March 2019 the Respondents contract does not meet the legal requirement of that Act. This has to be the starting point of any assessment of this claim under the Act in which it was brought under.  However, it is also possible under the Act to have a contract which is casual in nature (within specific circumstances) and does not define actual hours worked but their use is extremely limited. There are obligations in these circumstances also but it is not necessary to delve into this in this decision.  I have read the term in the Complainants contract a few times and am not able to determine its meaning as it refers to casual work. It is also not clear from the facts of the case if the work was “casual” or not and an argument could be made either way based on the evidence submitted. However, I prefer to conclude that due to the volume and frequency of work that the work was not casual.

The contract also contains the following clause” LAYOFF/SHORTTIME. The Company reserves the right to lay off or reduce working hours where it is unable to maintain you in employment. As much notice as possible will be given. You will be paid for hours worked during periods of short time.” While this clause allows for lay off it is secondary in importance to the lack of definition of contracted hours in the contract.

My conclusion is the Respondent has not complied with the general employment legislation by not giving the Complainant a contract with a defined working day/week. Technically, the Complainant is still employed by the Respondent as she has not tendered her resignation not has she been dismissed. However, in practical terms, it seems the option of a return to working with the employer, explored at the Hearing, is a non runner. The parties were given some weeks after the Hearing (given their mutual stated desire to resolve the issue) to try iron out the dispute but no resolution was found between them. I conclude that the relationship has broken down, that the Complainants employment rights to a contracted number of hours per day or week were breached, that she was treated less favourably than a full time employee and the only sensible conclusion to the dispute is to declare the employment is at an end and the Complainant receive some compensation for the complaint.

I note the post hearing Respondent in correspondence alluded to paying the Complainant redundancy and I concur that this would be a common sense way to calculate how to resolve this dispute.  I have used the general figures provided for service and income and using these as a basis I recommend that the Respondent pay the Complainant a sum of 2,500 Euros compensation for breach of her employment rights and that the parties accept that the employment relationship ended as of the date of the complaint, 25/9/2024.

I find the complaint well founded and award the Complainant 2,500 Euros.