ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005787
Parties:
| Complainant | Respondent |
Anonymised Parties | A Sous Chef | Restaurant |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00008056-001 | 08/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00008056-002 | 08/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00008056-003 | 08/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00008056-005 | 08/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00008056-006 | 08/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00008056-007 | 08/11/2016 |
Date of Adjudication Hearing: 07/02/2017
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Location of Hearing: Room G.04 Lansdowne House
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015; Section 6 of the Payment of Wages Act, 1991; Section 27 of the Organisation of Working Time Act, 1997; and Section 7 of the Terms of Employment (Information) Act, 1994, 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.
Background:
The Complainant, a Croatian national was employed as a Sous Chef at the Respondents restaurant from 6th September 2015 where he was paid €10.20 per hour. His employment ended on 4th August 2016. He has raised a number of complaints regarding his pay, annual leave, his working hours, and that he has not received written notice of his conditions of employment. |
Summary of Complainant’s Case:
CA-00008056-001 Complaint under section 6 of the Payment of Wages Act, 1991, Non Payment of Wages
The Complaint maintained that he was not paid for the following hours work:
31 hours work the month of April 2016
70 hours for the month of May 2016
67 hours for the month of May 2016
30 hours for the month of July 2016; and
20 hours for the month of August 2016
This amounts to 218 hours at €10.20 per hour, a total of €2,223.60.
CA-00008056-002 Complaint under section 27 of the Organisation of Working Time Act, 1997: Annual Leave entitlements
The complainant also maintained that he did not receive holiday pay which he calculated as follows:
Hours worked from September to December 2015 was 310 which amounted to an annual leave entitlement of 25.6 hours
Hours worked in 2016 1,340 hours which amounted to an annual leave entitlement of 107.2 hour
Public Holidays worked over the period amounted to 9 days, but no public holiday allowance provided.
The Complainant therefore contended he was due to be paid 132.8 hours holiday pay amounting to €1,354.56.
CA-00008056-003 Complaint under section 27 of the Organisation of Working Time Act, 1997: Public Holiday Entitlements
The Complainant contended that he worked 9 Public Holidays over the but he did not receive his public holiday entitlements.
The Complainant therefore contended he was due to be paid €1,101.60 for his public holiday entitlement.
CA-00008056-005 Complaint under section 7 of the Terms of Employment (Information) Act, 1994: Written Notice of Conditions of Employment
The Complainant maintained that despite working for the Respondent for 1 year he never received written notice of his conditions of employment.
CA-00008056-006 Complaint under section 27 of the Organisation of Working Time Act, 1997: Rest and Intervals at Work
The Complainant maintained that he was required to work on average 10 to 12 hours days for between 5 to 7 days a week but he did not receive and rest or intervals at work breaks.
CA-00008056-007 Complaint under section 27 of the Organisation of Working Time Act, 1997: Weekly Working Hours
The Complainant maintained that he was required to work between 60 to 70 hours per week which was in excess of a the permitted 48 hour working week under the Act.
Summary of Respondent’s Case:
CA-00008056-001 Complaint under section 6 of the Payment of Wages Act, 1991, Non Payment of Wages
The Respondent argued that the Complainant was only employed part time from September 2015 to April 2016 where he worked an average of 16 to 17 hours per week over this period. The Respondent therefore maintained that the Complaint was not underpaid between September and December as alleged. The Respondent also maintained that the Complainant was paid for the correct number of hours during 2016. The Respondent contended that everything had been a problem with the Complainant where he would leave the place in a mess.
CA-00008056-002 Complaint under section 27 of the Organisation of Working Time Act, 1997: Annual Leave entitlements
The Respondent denied that the Complaint was not provided with his holiday pay. The Respondent advised that the payslips would show holiday pay was made. Payslip evidence was not available at the hearing but the Respondent submitted payslips for the period week ending 8th May 2016 to the week ending 7th August 2016. (Not all pay slips for the period were provided to the hearing by the Respondent). A review of these payslips indicates holiday pay was made for the week ending 17th June 2016, amounting to €357 which equated to 35 hours work, and where payslips up to that time shows the Complainant being paid for 45 hours a week on average, with reduced working hours after 17th June 2016.
CA-00008056-003 Complaint under section 27 of the Organisation of Working Time Act, 1997: Public Holiday Entitlements
The Respondent maintained that the Complainant did not work all of the public holidays he alleged he did. The Respondent argued that the restaurant was not open on Christmas Day, St Stephen’s Day, or New Years day. The Respondent also maintained that the Complainant did not work St Patricks Day, Easter Monday or the Bank Holiday weekend in May, June, and August.
CA-00008056-005 Complaint under section 7 of the Terms of Employment (Information) Act, 1994: Written Notice of Conditions of Employment
The Respondent acknowledged that he did not provide the Complainant with written notice of his conditions of employment.
CA-00008056-006 Complaint under section 27 of the Organisation of Working Time Act, 1997: Rest and Intervals at Work
The Respondent maintained that the Complainant was provided with opportunities to take rest breaks during the working day. The Respondent contended that each day between 4pm and 6pm there was an opportunity for the Complainant to take breaks, and he would have taken an hour break each day.
The Respondent’s witness who was employed as a Chef, and was a work colleague of the Complainant, stated at the hearing that he would have had the opportunity to take rest breaks, and that the Complainant was also provided with such opportunity. The witness testified that rest breaks were usually taken for 30 minutes were staff could sit down.
CA-00008056-007 Complaint under section 27 of the Organisation of Working Time Act, 1997: Weekly Working Hours
The Respondent argued that the Complainant did not work in excess of 45 hours per week on average. The Respondent maintained that the Complainant was rostered for up to 45 hours per week, and if he wanted more hours work he would work these extra hours. The Respondent maintained that the pay slips would show the hours worked and where no pay slip records a payment in excess of 45 hours.
The Respondent also advised the hearing that the Complainant had come in to work and taken €700 from the till and left.
Findings and Conclusions:
CA-00008056-001 Complaint under section 6 of the Payment of Wages Act, 1991: Non Payment of Wages
It is acknowledged that the issues in relation to the working hours of the Complainant are in dispute. The Respondent only provided a number of pay slips for the period of employment (from 8th May 2016 to 7th August 2016). In this regard the payslips indicate the Complainant was paid €5,914 in total over a 14 week period which is an average of €422 per week, amounting to an average 41 hour week. The P45 shows only €9197.94 was earned over the 32 week period. This would indicate for the period between 1st January 2016 and 1st of May 2016 the Complainant earned on average €182 per week, which on the face of it would support the Respondents contention that the Complainant was only working an average 16 to 17 hour week until April 2016.
On the other hand the Complainant has alleged he was working greater hours, was underpaid and in addition never received his pay slips. Based on the direct conflict of evidence I have to decide on the balance of probability which version is more credible.
In considering this mater it is noted that the Respondent has failed to provide any work rosters to the hearing, and in addition has only provided verification of the payslips for 14 weeks, less than half the period of work that is in contention between the parties. It is not credible that eh Respondent could not provide a full record of the payslips issues to the Complainant, or proof of payment of the wages. Therefore, in light of the fact that the onus is on the Respondent to rebut the claim, particularly as the Respondent should have accurate records of payments made, and where he is obliged to record working hours and maintain such records for a period of three years, I conclude that the Respondents evidence is less credible than the Complainant’s. Hence I uphold the complaint.
I find that for the period January 2016 to August 2016 the Complainant was on the balance of probability underpaid for 218 hours at €10.20 per hour, a total of €2,223.60, and for the period.
CA-00008056-002 Complaint under section 27 of the Organisation of Working Time Act, 1997: Annual Leave entitlements
Section 19 of the Organisation of Working Time Act, 1997 sets out calculations for annual leave entitlements. Where an employee works at least 1,365 hours in a leave year he is entitled to 4 working weeks paid annual leave. Where an employee works less than 1,365 hours a year, but more than 117 hours per month the employee is entitled to one third of a working week for each month worked.
The Respondent failed to provide any record of leave being granted to the Complainant over the period. Whilst it is noted that one pay slip provided by the Respondent indicates the Complainant was paid annual leave for the week ending 17th July 2016, the amount of pay noted on the payslip is for only 35 hours work, yet the payslips provided before this date show the Complainant was paid for an average 45 hour working week. I do not find the payslips provided are a credible record of the hours worked, or that the Complainant received his paid annual leave entitlement.
On the balance of probability, and due to the lack of any clear evidence to the contrary being provided by the Respondent, I find that the Complainant did not receive his paid annual leave entitlements an as such I find he is entitled to
Hours worked from September to December 2015 was 310 hours (an average 77 hours per month) which at 8% of the hours worked amounts to amounted to an annual leave entitlement of 24.8 hours which is €252.96
Hours worked during from January to August 2016 are 1,340 hours which average at a 43 hour working week. In accordance with section 19 of the Organisation of Working Time Act this provides an entitlement of one third of a working week per month worked (i.e. 14.3 hours per month over seven months)amounts to an annual leave entitlement of 100 hours which is €1,020.
CA-00008056-003 Complaint under section 27 of the Organisation of Working Time Act, 1997: Public Holiday Entitlements
Section 21 of the Organisation of Working Time Act provides for entitlements in respect of public holidays. During the hearing the Complainant admitted that he did not work on some of the public holidays as the restaurant was closed. I therefore find that the Complainant, on balance, is due to be paid for two public holidays.
CA-00008056-005 Complaint under section 7 of the Terms of Employment (Information) Act, 1994: Written Notice of Conditions of Employment
Section 3 of the Terms of Employment (Information) Act, 1994 requires an employer to provide a written statement of the terms of employment not later than two months after the commencement of an employee’s employment. No evidence was provided by the Respondent to demonstrate that he had provided the Complainant with such information. I therefore find that the Respondent is in contravention of the Act and that the complaint is well founded.
CA-00008056-006 Complaint under section 27 of the Organisation of Working Time Act, 1997: Rest and Intervals at Work
Section 12 of the Organisation of Working Time Act 1997 requires that an employer shall not require an employee to work for a period of more than 4 hours 30 minutes without allowing him a break of at least 15 minutes, and shall not require an employee to work for a period of more than 4 hours 30 minutes without allowing him a break of at least 30 minutes.
The Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 requires all employers to keep detailed records of start and finishing times, hours worked each day and each week and leave granted to employees. The employer must keep these records for 3 years.
As the Respondent failed to provide a record of working hours of the Complaint I find that on the balance of probability the Complainant di not received his statutory rest breaks and intervals of work. The Complaint is therefore well founded
CA-00008056-007 Complaint under section 27 of the Organisation of Working Time Act, 1997: Weekly Working Hours
Section 15 of the Organisation of Working Time Act 1997 states, inter alia, that an employer shall not permit an employee to work more than 48 hours a week on average over a four month period.
Having reviewed the evidence provided at the hearing, and the estimate of hours worked by the Complainant in his complaint regarding annual leave for 2016, I find that the average working week of the Complainant was 43 hours. I therefore do not find that this complaint is well founded.
Decision:
Section 41 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. Based on my consideration of the evidence provided and the findings outlined above I make the following decisions in relations to the complaints.
CA-00008056-001 Complaint under section 6 of the Payment of Wages Act, 1991, Non Payment of Wages
Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to breaches under Section 5 of that Act. As I have found the Respondent to be in contravention of Section 5 of the Act, in that he made unlawful deductions by not paying the Complainant the correct amount of wages for the hours worked, and as such the Complaint is well founded, I direct that Respondent is to pay the Complainant by way of compensation, a sum of a total of €2,223.60.
CA-00008056-002 Complaint under section 27 of the Organisation of Working Time Act, 1997: Annual Leave entitlements
Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 20 of that Act. As I have found that the complaint is well founded I require the employer to pay the Complainant compensation of €1,275 for the not payment of his annual leave entitlement.
CA-00008056-003 Complaint under section 27 of the Organisation of Working Time Act, 1997: Public Holiday Entitlements
Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 21 of that Act. As I have found that the Complainant did not received his entitlements for 2 public holidays, I require the employer to pay the Complainant compensation of €200 for the contravention of the Act.
CA-00008056-005 Complaint under section 7 of the Terms of Employment (Information) Act, 1994: Written Notice of Conditions of Employment
Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to breaches of section 3 of that Act. As I have found the Respondent has been in contravention of the Act I order the Respondent to pay the Complainant compensation of two weeks remuneration which amounts to €918.
CA-00008056-006 Complaint under section 27 of the Organisation of Working Time Act, 1997: Rest and Intervals at Work
Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 12 of that Act. As I have found that the complaint is well founded I require the employer to pay the Complainant compensation of €1,000 for failing to provide the Complainant his rest and intervals at work entitlements.
CA-00008056-007 Complaint under section 27 of the Organisation of Working Time Act, 1997: Weekly Working Hours
Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 15 of that Act. I have found that the complaint is not well founded and therefore if fails.
Dated: 4th July 2017
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Key Words:
Payment of Wages, Annual Leave Entitlements, Public Holiday Entitlements, Rests and Intervals at Work, Weekly Working Hours, Written Notice of Terms of Employment. |