DWT1233

The Case came on for hearing before the Labour Court on 29^thNovember 2011.

Background

The Respondent operates a Bed and Breakfast Hostel business in Dublin. In early 2009 the Complainant came to stay at the Bed and Breakfast with his family. He fell into conversation with the Respondent. In the course of conversation it emerged that the Complainant was a “tiler” by trade. The Respondent needed some work done in the hostel. The Complainant quoted for the work. He was engaged to do the work at a price considerably higher than that quoted. Over the course of the following months the Respondent gave the complainant more tiling work which he undertook and completed in a most satisfactory manner.

In that time the Complainant and the Respondent became friends and their friendship grew into an employment relationship. Initially the Complainant assisted the Respondent with the running of the Hostel. He cleaned rooms each morning and assisted with the running of the reception area. Over time the Respondent left the Complainant in full charge of the Hostel for increasingly longer periods of time. The Respondent occasionally left the Complainant in charge of the hostel on a 24/7 basis while he attended to his other interests and responsibilities.

The Respondent paid the complainant in a most irregular manner. He occasionally gave the complainant some cash to cover his expenses and to pay him for work done however there was little pattern to these payments and there were long intervals between them. These payments were supplemented by free lodgings that was made available to the Complainant.

Occasionally, during busy periods, the Respondent told the Complainant that he could supplement his income by renting his own room to guests. He was told he could keep any monies he received in this regard.

The Complainant subsequently became involved in further additional duties around the Hostel. He made breakfast on occasions although the frequency with which he did so is disputed by the Respondent.

Because work in the Hostel was neither full time nor certain the Complainant continued to seek work elsewhere and was encouraged to do so by the Respondent. At one point he undertook work valeting cars. After his day’s work he returned to the hostel and became involved in more tiling work and in the administration of the hostel reception sometimes remaining available to guests throughout the night.

The Complainant says he was paid some monies but he did not have an accurate account of the total monies he was paid. The Respondent says he paid the Complainant some monies but he did not have any records of those amounts either.

The matter is further complicated by the fact that the two men shared both a friendship and an employment relationship. The boundry between these two aspects of their relationship was blurred to say the least. On many occasions the two were enjoying each other’s company whilst staffing the reception of the hostel. It is unclear which of them was on duty at the time as no records of any description have been presented to the Court.

Events conspired to cause the proprietor to spend more time away from the Hostel to deal with the consequences of a series of family illnesses. At this time two separate unrelated events occurred. Firstly the Complainant had been seeking some payment from the proprietor. Despite repeated assurances that he would pay him some money nothing was forthcoming. The Complainant on two occasions took €10 from the receipts to tide him over. He told the Respondent he had done so. However the relationship between the two men became strained and never recovered. Secondly the Proprietor arranged to have another person manage the Hostel while he was away attending to other matters. The Complainant did not get on with this person and following a series of encounters he resigned his employment and left the hostel.

He subsequently submitted a series of complaints to the Rights Commissioner.

The respondent did not attend the Rights Commissioner’s hearing into the complaint and on the uncontested evidence of the Complainant he upheld the Complaint and awarded him €5,000 in respect of both unpaid leave and for breach of his statutory rights. It is this decision and award that the Respondent appealed to the Labour Court.

Complainant’s Case

The Complainant submitted that he was employed by the Respondent on a casual basis from early 2009 until he terminated his employment in May 2010. He submitted that he was given no paid leave during that period. He further submitted that he was required to work on a number of Public Holidays and was not paid or otherwise compensated in accordance with the provisions of the Act.

He submitted that he was required to staff the reception area of the hostel for up to 24 hours without breaks or a daily rest period.

The Complainant contends that he was not paid wages at all for a large number of the hours he worked and is pursuing another Complaint pursuant to the National Minimum Wage Act 2000 in that regard.

Respondent’s Position

The Respondent submits that the Complainant was never employee. He submits that the Complainant was engaged as a contractor to undertake maintenance work around the hostel that he completed to a very high standard and for which he was paid.

He submits that the Complainant was not employed on reception in the hostel. Rather the two men became friends and on occasions spent their evenings together in a room behind reception watching television and having a social drink. He said on those nights the complainant was his guest and not his employee. On other nights he said the Complainant was helping him as a friend and not as an employee.

He acknowledged that the Complainant did clean rooms and very occasionally prepared breakfast. However he said that at those times he was staying in the hostel free of charge, was between jobs and was acting as both a friend and contributing towards the cost of his keep.

He submitted that he occasionally gave the Complainant some cash to tide him over but it was not in the nature of wages but rather in the nature of a contribution towards his upkeep. He said the relationship between them was not one of employer and employee.

He submitted that the terms of the Act did not apply as there was no employment relationship between the parties.

Conclusions of the Court

The Court finds that the Complainant was employed by the Respondent to perform some general maintenance duties, clean rooms, work the reception and occasionally prepare breakfast. Accordingly the Court finds that the Complainant was an employee of the Respondent and comes within the scope of the Act.

The Respondent, contrary to the provisions of Section 25 of the Act, did not maintain records of hours worked, rest breaks etc. in respect of the Complainant and consequently the burden of proving compliance with the provisions of the Act lies with him.

Section 11 Complaint

The Complainant contends that, contrary to the provisions of Section 11 of the Act he was not allowed to avail of his entitlement to a rest period of not less than 11 hours in each period of 24 hours during he worked for his employer. He submitted that there were instances when he was required to work through Saturday afternoon and through the night and to subsequently, without a break, clean rooms on Sunday morning before returning to work on Sunday evening. He also submitted that there were occasions on which he was required to work through the night mid- week and be available the following morning to clean rooms and occasionally make breakfast, followed by a further requirement to work reception again in the afternoon without a break of 11 hours.

Sections 11 of the Act provides

11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer

However Statutory Instrument 21 of 1998 exempts the “tourism” industry from compliance with the strict provisions of Section 11 of the Act provided the employer is compliant with the provisions of Regulation 4 thereof.

Regulation 4 provides

4.If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.

The Respndent made no submissions to the Court to the effect that he “ensured that the employee had available to him a rest period that, in all the circumstances, could reasonably be regarded as equivalent to the first-mentioned period.

Accordingly the Court finds that the as the Respondent has failed to discharge the burden of proving compliance with this provisions of S.I. No 21 of 1998 and accordingly cannot avail of the exemption from compliance with the strict provisions of Section 11 of the Act.

The Complainant, in making out the complaint, was not in a position to identify with any degree of certainty the number of occasions on which he was asked to work without an 11 hour break between shifts. Furthermore the Complainant acknowledged that the matter was complicated by the fact that he was residing in the hotel and was interchangeably at home and at work at any given time.

However, having considered the matter, the Court takes the view that he was not free to dispose of his time at his own discretion and perforce was available to deal with issues in the hotel as they arose. Accordingly the Court finds that the Complainant was, contrary to the provisions of Section 11 of the Act, at work, without a rest period, at those times when he was required to staff the reception on a 24 hour cycle.

Accordingly the Court upholds the Complaint.

Section 19 Complaint

Section 19 of the Act provides

19.—(1) Subject to theFirst Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks

The Respondent admitted that he did not pay the complainant holiday pay as he did not considered him an employee within the meaning of the Act. The Court finds that the Complainant was a casual employee in respect of the reception and room service work he performed in the hotel. The Court finds, and both sides acknowledged, that he was a contractor for the purposes of some of the building and maintenance work he carried out in the hotel. The Court further finds that the Respondent failed to pay the Complainant his entitlement to holiday pay in respect of the hours he worked as an employee of the hotel.

Neither party gave the Court any information regarding the actual hours worked in the relevant period. The Respondent did not keep records and the complainant was not in a position to provide the Court with any indication of the actual hours he worked. Furthermore he acknowledged that there were occasions on which he was in and around the hotel with the Respondent but may or may not have been formally working on those occasions as the line between socialising and working was very indistinct.

In related proceedings under the Minimum Wage Act 2003 the Court has found that the Complainant worked for the Respondent for 500 hours between the commencement of his employment in January 2009 and his decision to resign in September 2010. The Court finds that the Complainant was employed on a casual, irregular and erratic basis with long breaks between periods of employment. Accordingly the Court has had considerable difficulty determining a basis on which to calculate the Complainant’s entitlement to holiday pay. Taking all the information available to it into account the Court finds that the Complainant worked for 120 hours in the six months prior to the date on which the Complaint was made to the Rights Commissioner. Accordingly the Court finds that the Complainant was entitled to 9.6 hours holiday pay for the relevant period.

Section 21 Complaint

Section 21 of the Act provides

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

(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

The Complainant submitted that, contrary to the provisions of Section 21 of the Act he was denied his statutory entitlements in respect of the public holidays on which he worked. The Respondent admits the complaint. Neither party gave the Court any information as to the Public Holidays on which the Complainant actually worked. The respondent did not keep records and the Complainant could not remember clearly.

The Court finds that four public holidays fell in the six months prior to the Complainant’s resignation from his employment. However the Complainant gave no evidence to the Court as to the actual public holidays on which he worked. The Respondent maintained no records and accordingly the Court has no information on which it can make a precise calculation of the amounts of money due to the Complainant.

In deciding the matter the Court takes the view that there is an obligation on the Complainant to make out a prima facie case that his entitlements under the Act have in fact been denied to him. It is not sufficient to make a broad assertion that he was denied his entitlements under the Act. The Court takes the view that the Complainant must at least identify the Public Holidays on which he asserts he was required to work.

In this case he has failed to do this despite repeated requests from the Court.

Accordingly the Court does not uphold this complaint.

Determination

Having considered the submissions made by both parties and the information provided by both of them the Court finds that the Complaints made pursuant to Sections 11 and 19 of the Act. The Court awards the Complainant the sum of €500 compensation in respect of the breaches of his statutory entitlements.

The so determines.

Signed on behalf of the Labour Court



Brendan Hayes
26th March, 2012______________________
DNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.