ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006759

Parties:

A Chef A Restaurant  

Complaint:

ActComplaint Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00009253-001 24/01/2017   Date of Adjudication Hearing: 16/06/2017 Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 24th January 2017, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Payment of Wages Act. The complaint was scheduled for adjudication on the 15th June 2017. The complainant attended the adjudication. The respondent was represented by Business & Commercial Solicitors and both the respondent and a Head Chef attended as witnesses.   In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, 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.  

Background:

The complainant claims he was not paid wages and the respondent denies the claim.

Summary of Complainant’s Case:

The complainant worked at the respondent’s restaurant between the 29th September and the 6th November 2017. The complainant outlines that he is owed for 57 hours he worked for the respondent, for which he was not paid. His agreed rate of pay was €13, but he was only paid €11 for the hours he worked and was paid for. He claims that he is owed money for this underpayment.   The complainant stated that the agreement regarding the rate of pay at €13 was made on the 21st September 2016. There had been issues in getting paid by the respondent and the complainant asked for pay slips. He later received pay slips but noticed that he was paying too much tax. The pay slips were issued in the wrong name and had the wrong PPSN. This made the complainant upset and he also noticed that his rate of pay was stated as being €11. He received these pay slips after leaving his employment.   The complainant outlined that he resigned on the 6th November 2016 after he was verbally assaulted by the respondent. He contacted the Gardaí. He was subject to harassment by the respondent and this made him upset and scared. The respondent had thrown him out as he had found a replacement chef. He was never given a statement or a contract to sign.   The complainant stated that he is owed for 57 hours at €13 and for the shortfall of €2 for a further 24.46 hours. He had emailed the respondent to seek payment after his employment ended.

Summary of Respondent’s Case:

The issue of the identity of the respondent was clarified. It is a person trading as a restaurant.   The respondent stated that the complainant had been paid in cash for the first two weeks. The agreement was an hourly rate of pay of €11 and a further hourly pay of €2, but this would be paid in cash. €630 had been paid to the complainant for the first two weeks; this was his rate of pay at €11/hour. As corroboration, the respondent referred to a red, spillage book where he had written down expenditure. The additional €2 was paid for every hour work, except for those in the first week. This was his record and he would issue pay slips. They were subject of an inspection by the Workplace Relations Commission.   The respondent said that the complainant had told his day manager that he would cause trouble. The complainant had left on the 4th November 2016. Since then, he had been stalking the restaurant and also scratched his car. This was witnessed by a named person. The complainant had worked slowly and under-performed. He had left his employment without giving notice. The respondent said he gave the complainant a statement of terms of employment, which the complainant refused to sign.   The respondent said that he initially had to pay cash as there were issues with the complainant’s P45 from his last employer. He made the payment of €630 in cash at the end of the second week and the complainant exploited his position. The respondent had corroboration for the payment and pay slips would issue. Communication had been face-to-face. There was a tips policy where tips were shared with all staff.   The Head Chef stated that he was present in the kitchen when cash payments were made on a regular basis to the complainant. He saw this on several occasions. The complainant had asked for cash payments and had initially wanted all his pay in cash.   The respondent concluded by saying that the complainant was paid €11 for every hour worked, so the dispute was about the additional €2 per hour. The complainant had worked 160.5 hours outside of the first two weeks.

Findings and Conclusions:

It is in dispute whether wages for the first two weeks of employment were paid and whether the complainant is also entitled to recover for a shortfall in pay. Other issues were raised at the adjudication, but this complaint relates only to the Payment of Wages Act.   Section 4 of the Payment of Wages Act provides that the employer shall give the employee a written statement of wages payable at the time the wages are payable. This paper trail avoids the issues that have arisen in this case.   Given the lack of written corroboration to support the evidence of the respondent, I find that the claim is well-founded. The evidence presented was not sufficient to find against the verbal evidence of the complainant. The complainant is entitled to recover for the first two weeks of his employment (€741) and €321 for the shortfall of €2 over 160.5 hours. The total due is €1,062.

Decision:

Section 41 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. CA-00009253-001 I find that the complaint made pursuant to the Payment of Wages Act is well-founded and the respondent shall pay to the complainant €1,062 less any lawful deductions made for tax.  

Dated:   14/12/2017                                         Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words: Payment of Wages Act, section 4