ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00006160

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

Date of Adjudication Hearing: 14/02/2017

Workplace Relations Commission Adjudication Officer: Enda Murphy

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The Complainant was employed by the Respondent as a Chef from April, 2016 until 25^th August, 2016. The Complainant claims that he had a verbal agreement with the Hotel Manager at the outset of his employment that he would be paid an annual salary of €28,000 per annum for working 40 hours per week. The Complainant claims that he requested a written statement of his terms and conditions from the Respondent and was informed that it would be provided. However, he did not receive a written contract during his period of employment. The Complainant submitted that he was informed by the Hotel Manager that any additional hours or overtime that he worked during the summer months would be compensated by time off in lieu during the winter months when the Hotel was quieter. The Complainant claims that he worked an average of 55 hours per week for the duration of his employment but did not receive any payment or compensation for the additional hours worked each week when he terminated his employment on 25^th August, 2016 to take up alternative employment.

The Complainant claims that he is entitled to payment for the additional 15 hours that he worked during each of the 17 weeks of his period of employment and submits that the Respondent’s failure to make this payment upon the termination of his employment amounts to an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act 1991.

Respondent’s Submission and Presentation:

The Respondent submitted that the Hotel opened in April, 2016 under new ownership and the Complainant was employed as a Chef at that juncture. The Respondent submitted that the Hotel’s business was seasonal and as a result the Complainant would have been expected to work an average of 40 hours per week over the course of the year. However, given the seasonal nature of the business this would have resulted in the Complainant being required to work a greater number of hours per week during the summer months and a lesser number of hours during the winter months. The Respondent submitted that the Complainant was given the option of electing to be paid an hourly rate of pay or on a salaried basis and that he elected for the latter method of payment.

The Respondent accepts that the Complainant was not issued with a written contract of employment during his period of employment and claims that it had been the intention to issue a contract to him. However, it submitted that the verbal agreement concluded with the Complainant at the outset of his employment required him to work additional hours during the busy summer months on the understanding that he would be compensated with time off in lieu during the quieter winter season. The Respondent accepts that the Complainant worked additional hours during his period of employment which coincided with the busy summer season. However, it was submitted that the Complainant’s salary had been set in a manner to take into account his requirement to work additional hours during the busy summer months and that he would be compensated with time off in lieu during the quieter winter season. The Respondent stated that the Complainant left the position of his own volition on 25^th August, 2016 to take up alternative employment.

The Respondent disputes the Complainant’s claim under the Payment of Wages Act 1991 and submitted that this rate of pay was reflective of the requirement to work additional hours during the busy summer months and that this requirement was taken into account in determination of the his pay.

Findings and Conclusions:

Section 1 of the Payment of Wages Act provides for the following definition of “contract of employment”:

              “contract of employment” means:

              (a) a contract of service or of apprenticeship, and

              (b) any other contract whereby an individual agrees with another person to do or perform    personally any work or service for a third person (whether or not the third person is a party            to the contract) whose status by virtue of the contract is not that of a client or customer of        any profession or business undertaking carried on by the individual, and the person who is    liable to pay the wages of the individual in respect of the work or service shall be deemed for               the purposes of this Act to be his employer,

              whether the contract is express or implied and if express, whether it is oral or in writing;

In the present case, it was common case that the Complainant was not furnished with a written contract during his period of employment with the Respondent. However, based on the evidence adduced I am satisfied that the Complainant concluded a verbal contractual agreement with the Respondent’s Hotel Manager at the outset of his employment that he would be paid an annual salary of €28,000. The question I must address in the context of the present complaint is whether or not the terms of the agreement concluded between the parties obliged the Respondent to pay the Complainant overtime for the additional hours that he worked in excess of 40 hours per week during his period of employment.

The Complainant gave evidence that he had an expectation that he would be required to work 40 hours per week but it subsequently transpired that he worked an average of 55 hours per week for the duration of his period of employment. The Respondent gave evidence that the Complainant elected to be paid on a salaried (rather than an hourly) basis on the understanding and agreement that he would be expected to work additional hours during the busy summer months and would be compensated by time off in lieu during the winter period when the kitchen was much quieter.

In considering this issue, I note that the Respondent’s Hotel was located in a prominent seaside location and I am satisfied that the business was very much seasonal in nature with a very busy summer trade and a much quieter trade during the winter period. Having regard to the totality of the evidence adduced, I am satisfied that under the terms of the agreement which the Complainant concluded with the Respondent at the outset of his employment he elected to be paid on a salaried basis which required him to work additional hours during the busy summer months on the premise that he would be compensated with time off in lieu during the winter period. It was not disputed that the Complainant worked additional hours during his period of employment which coincided with busy summer season. However, I am satisfied that the Complainant left this position of his own volition on the 27^th August, 2016 in order to obtain alternative employment. Furthermore, I am satisfied that the Complainant did not have a contractual obligation to payment for the additional hours worked during his period of employment but rather he had a contractual entitlement to time off in lieu for these hours which the Respondent would have been obliged to honour had he remained in its employment.

Accordingly, I find that the Complainant’s claim under the Payment of Wages Act 1991 is not well founded and must fail.  

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the Respondent did not make an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991. Accordingly, I find that the Complainant’s claim is not well founded and must fail.

Dated:   25^th April 2017