ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000059

Complaints for Resolution:

Date of Adjudication Hearing: 18/01/2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On 6 October 2015, the complainant referred complaints to the Workplace Relations Commission pursuant to the Terms of Employment (Information) Act, the Organisation of Working Time Act and the Payment of Wages Act. In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General of the Workplace Relations Commission, 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. The complaints were scheduled for adjudication on the 18 January 2016. The complainant attended in person and a director attended for the respondent limited company.

Complainant’s Submission and Presentation:

 The complainant worked for the respondent limited company as a pizza chef. His employment commenced on 1 December 2013 and came to an end on the 13 September 2015. He outlined that at no time did he receive a contract of employment or any written terms regarding his employment. He generally worked a 40 hour week and also worked many Sundays. He was not paid any Sunday premium and that he worked a great many Sundays. In respect of annual leave, the complainant said that he did not receive any paid annual leave for 2014 and 2015. With regard to 2014, he did not accept the oral evidence of the director of the respondent that he had been paid for annual leave this year. He outlined that his wages were deducted for time he took on annual leave. He says that he was paid for one week in this year but not paid for three further weeks. In respect of wages owed to him, he agreed with the director that he was owed wages for weeks 36 and 37 of 2015 and that the net relevant amounts were €261.73 and €208.78. He had been paid for one other outstanding week. The complainant outlined that he last worked for the respondent on the 11^th September 2015 and resigned as he was no longer being paid by the respondent.

Respondent’s Submission and Presentation:

The respondent is a Dublin franchisee of a pizza restaurant and take-away franchise. A director attended the hearing for the respondent. He outlined that he believed that the franchiser had provided contracts of employment to chefs as they did for drivers, but this had not occurred. He was now looking to prepare such a document. Regarding the payment of wages, he said that there were problems with cash flow and acknowledged that wages were owed for weeks 36 and 37, as stated by the complainant. He said that some payments were made in cash and others by cheque, and that it could be hard to keep track of payments. In respect of Sundays, the director outlined that a new rule had been introduced to give staff a day off for every Sunday worked. He was unaware of the need for a Sunday premium. In respect of annual leave, the director said that the complainant had been paid for annual leave taken by the complainant in the previous leave year.

Findings and reasoning:

In respect of the claim under the Terms of Employment (Information) Act, I find that the complainant was not supplied with a contract of employment or written terms of employment. I award the complainant redress of four weeks’ remuneration in respect of this breach. Given the complainant’s gross weekly wage of €346, the amount awarded under this aspect of the claim is €1,384.

It was agreed by the parties that the complainant was not paid for week 36 and 37, and the complainant is awarded the pay owed for these two weeks. Given that the complainant’s gross weekly wage is €346, he is awarded the amount of €692.

In respect of annual leave, I find that the complainant is entitled to compensation for unpaid annual leave for the leave year commencing on 1 April 2015 and coming to an end at the end of his employment on 13 September 2015. He is entitled to compensation of €623 for this breach. There was a dispute between the parties over what annual leave was paid in earlier leave years, but I find that this complaint is out of time given that it relates to alleged breaches outside of the six months’ limitation period provided by section 41 of the Workplace Relations Act.

In relation to Sundays, the complainant outlined that he worked a great many Sundays without any premium or additional recompense. The respondent accepted that there was no provision for Sunday working, but that this would be provided for. I award the complainant €350 for this breach of the Organisation of Working Time Act.

Decision:

Section 41(4) 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 respondent shall pay to the complainant the amount of €1,384 for the breach of the Terms of Employment (Information) Act, the amount of €692 for breaches of the Payment of Wages Act, the amounts of €623 and €350 for breaches of the Organisation of Working Time Act in respect of annual leave and Sunday premium. The total owed by the respondent to the complainant is €3,049.

The awards under the Terms of Employment (Information) Act and the Organisation of Working Time Act are redress for infringements of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act, 1997 (as amended by Section 7 of the Finance Act, 2004).

Dated:   11^th May 2016