ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000334

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing:  26/02/2016

Workplace Relations Commission Adjudication Officer:  Caroline McEnery

Procedure

In accordance with Section 41(4) 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.

Complainant’s Submission and Presentation

The Complainant commenced employment in May 2008 and worked as a Bar and Venue Manager in the Respondents bar which was a busy bar, restaurant and music venue.

The Complainant states he worked in excess of 40 hours per week and at times 50 to 60 hours per week during the busy summer season. This work was full time for each calendar year.

The Complainant notes that he was officially paid €390 per week and that he received a separate amount in cash. The Complainant states he was paid the official amount of €10 per hour for a 39 hour week but he was receiving on average €500 per week with the additional amount he was receiving in cash.

The Complainant states in May 2015 the bar was closed to enable fire renovations to be carried out as per health and safety regulations. The Complainant received no notice of this closure and was not paid whilst the premises was closed. In total the Complainant was unpaid for one month. The Complainant states that he signed on for Jobseekers Benefit for one of the four weeks he was unpaid from work.

The Complainant states that when the bar reopened on the June bank holiday in 2015 that it opened for weekends only for the following few weeks as the work remained unfinished. The Complainant states that as a result he did not received his full hours during these weeks and his hours were reduced.

The Complainant states that in July of 2015 his hours returned to normal.

On the 7^th August 2015, it was the Friday of the (details supplied) races therefore it was a busy weekend. The Complainant noted his employer, Mr A. telephoned him several hours before he was due to attend work and said that the bar was closed and all the alcohol stock has been confiscated by customs and excise. The Complainant stated that he went up to the bar to meet with his employer. The Complainant stated that there was an issue with the license of the pub.

The Complainant noted that the last day he worked for the Respondent was on the 6^th August 2015.

The Complainant noted that the premises is now up for sale.

Outstanding Pay: The Complainant states that he is owed money by the Respondent for bills paid by the Complainant for the running of the premises.

The Complainant also states that he is owed outstanding wages for the last week of employment from the 30^th July 2015 to the 6^th August 2015. The Complainant states that he is due money for his contracted hours for the weeks where the bar was closed in May and June of 2015. The Complainant totals this at €1,340.00

Redundancy: The Complainant states that under the Redundancy Payments Act 1967 -2014 he is entitled to a redundancy payment as he has the requisite service. The Complainant has confirmed that although he did receive €500 a week during his time with the Respondent his only evidence is a weekly wage of €390 as per his P60 as the balance was paid in cash to him. The Complainant states he is entitled to €6,060.60 based on €390 per week.

Minimum Notice: The Complainant states that he worked for the Respondent from 2008 to 2015 and therefore is entitled to minimum notice under the Minimum Notice and Terms of Employment Acts 1973-2005. The Complainant states he is entitled to four weeks of notice as per the legislation and totals this at €1560 based on €390 per week.

Annual Leave: The Complainant states that he did not receive his statutory entitlement to paid annual leave as per the Organisation of Working Time Act 1997. The Complainant states that he had an entitlement to 20 days per year as he was a full time employee. The Complainant states that he did take leave however was never paid for his annual leave. The Complainant states this was unpaid leave and hew was promised he would get his paid annual leave but this never happened.

The Complainant states he has worked for 7 years without payment for annual leave. This equates to €11,200.

Public Holidays: The Complainant states that during his employment he was not afforded public holidays as per the Organisation of Working Time Act 1997. The Complainant states that he worked all public holidays during his employment with the Respondent and totals this to 65 public holidays.

2008                     5

2009                     9

2010                     9

2011                     9

2012                     9            

2013                     9

2014                     9

2015                     6

The Complainant states that a daily rate of €80 this equates to €5,200 in total.

In total the Complainant states he is owed €23,360.60 from the Respondent.

Respondent’s Submission and Presentation

The Respondent did not attend the scheduled hearing and has not submitted any corresponding submission.

Legislation Involved and Requirements Of Legislation:

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 Complainant states that he did not receive his statutory entitlement to paid annual leave as per the Organisation of Working Time Act 1997.

• The Complainant states that during his employment he was not afforded public holidays as per the Organisation of Working Time Act 1997.

• The Complainant states that he is owed money by the Respondent for bills paid by the Complainant for the running of the premises.

• The Complainant also states that he is owed outstanding wages for the last week of employment from the 30^th July 2015 to the 6^th August 2015.

• The Complainant states that he is due money for his contracted hours for the weeks where the bar was closed in May and June of 2016.

• The Complainant states that under the Redundancy Payments Act 1967 -2014 he is entitled to a redundancy payment as he has the requisite service.

• The Complainant states that he worked for the Respondent from 2008 to 2015 and therefore is entitled to minimum notice under the Minimum Notice and Terms of Employment Acts 1973-2005.

The Organisation of Working Time Act 1997 Section 20(2) and 20(4):

20(2)

The pay in respect of an employee's annual leave shall—

(a) Be paid to the employee in advance of his or her taking the leave,

(b) Be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate

20(4)

(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned pay determined in accordance with regulations made by the Minister for the purposes of this section.

23(1)

Where—

(a) an employee ceases to be employed, and

(b) the whole or any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

The Organisation of Working Time Act 1997 Section 21(1):

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:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

23(2)

Where

(a) an employee ceases to be employed during the week ending on the day before a public holiday, and

(b) the employee has worked for his or her employer during the 4 weeks preceding that week,

the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day's pay calculated at the appropriate daily rate.

Section 27(3)

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

Payment of Wages Act 1991:

Section 4(1)

An employer shall give or cause to be given to an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the nature and amount of any deduction therefrom and the employer shall take such reasonable steps as are necessary to ensure that both the matter to which the statement relates and the statement are treated confidentially by the employer and his agents and by any other employees.

Minimum Notice and Terms of Employment Acts 1973-2005:

Section 4(2)

The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Redundancy Payments Act 1967 – 2014:

Section 7(1)

An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.

Section 11

(1) Where after the commencement of this Act an employee's employment ceases by reason of his employer's being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

(2) Where by reason of a diminution in the work provided for an employee by his employer (being work of a kind which under his contract the employee is employed to do) the employee's remuneration for any week is less than one-half of his normal weekly remuneration, he shall for the purposes of this Part be taken to be kept on short-time for that week.

Decision:

• The Complainant states that he did not receive his statutory entitlement to paid annual leave as per The Organisation of Working Time Act 1997. I find on the behalf of the Complainant in this respect. As per the legislation the Complainant is entitled to six months of annual leave which is 10 days in total €780.

• The Complainant states that during his employment he was not afforded public holidays as per the Organisation of Working Time Act 1997. I find on the behalf of the Complainant in this respect. The Complainant is entitled to four public holidays; August, June, May, St Patricks day. In total this is €312.

• The Complainant states that he is owed money by the Respondent for bills paid by the Complainant for the running of the premises. The legislation does not cover this part of the complaint therefore I cannot find on the part of the Complainant in this respect.

• The Complainant also states that he is owed outstanding wages for the last week of employment from the 30^th July 2015 to the 6^th August 2015. Under the Payment of Wages Act 1991 this is deemed a deduction of wages from the Complainant. Therefore, I am awarding the Complainant one week of wages totalling €390.

• The Complainant states that he is due money for his contracted hours for the weeks where the bar was closed in May and June of 2016. The Complainant has not provided a contract of employment however, there is an implied term and condition based on the weekly pay of the employee that he was on a 39 hour at €10 per week. This in effect is a lay off situation therefore, based on the Redundancy Payments Act 1967 – 2014, Section 11(1) therefore, I cannot find in favour of the Complainant in this complaint.

• The Complainant states that he worked for the Respondent from 2008 to 2015 and therefore is entitled to minimum notice under the Minimum Notice and Terms of Employment Acts 1973-2005. Therefore, the Complainant was entitled to 4 weeks of notice regarding his redundancy. Under the relevant Act the Complainant is entitled to 4 weeks of payment which totals €1,560.

• The Complainant states that under the Redundancy Payments Act 1967 -2014 he is entitled to a redundancy payment as he has the requisite service. I can confirm that the Complainant has the requisite period and is entitled to the redundancy payment which is €6,060.60

• In total, I find on behalf of the Complainant to the total sum of €9102.60.

Dated:   30^th May 2016