ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006971
Parties:
| Complainant | Respondent |
Parties | A Chef/Kitchen Porter | A Restaurant |
Representatives | Marius Marosan Marius Marosan |
|
Complaints:
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-00009500-001 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009500-002 | 01/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009500-003 | 01/02/2017 |
Date of Adjudication Hearing: 01/06/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and 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 was employed with the Respondent Company from 1st January 2013 until the employment ceased on 26th February 2017. The Complainant was paid €500.00 gross per week. The Complainant referred complaints to the Workplace Relations Commission on 1st February 2017 under the Payment of Wages Act, 1991 – 2015 alleging breach of Section 5 of that Act and a complaint under the Organisation of Working Time Act, 1997 – 2015 in relation to breaches of Sections 19 and 23 in relation to his annual leave and Section 15 in relation to maximum hours worked each week. |
Summary of Complainant’s Case:
Payment of Wages Act, 1991 – 2015 The Complainant stated that he is claiming payment of unpaid wages of €4062.00 as follows - €125.00 w/e 21/8/2016 -- €112.00 w/e 25/12/2016 – €625.00 w/e 1/12017 - €375.00 w/e 8/1/2017 - €562.50 w/e 15/1/2017 - €562.50 w/e 22/1/2017 - €625.00 w/e 29/1/2017 - €375.00 w/e 5/2/2017 – 375.00 w/e 12/2/2017 and €250.00w/e 19/2/2017 |
Organisation of Woking Time Act, 1997 – 2015
Section 15
The Complainant stated that he worked the following hours –
September 2016 w/e 4/9/2016 – 48 hours - w/e11/9/2016- 36 hours - w/e 18/9/2016 -48 hours - w/e 25/9- 56 hours - w/e 2/102016 48 hours.
October 2016 w/e 9/10/2016 48 hours - w/e 16/10/2016 48 hours - w/e 23/10/2016 48 hours - w/e 30/10 48 hours
November 2016 w/e 6/11/2016 48 hours – w/e 13/11/2016 48 hours – w/e 20/11/2016 48 hours - w/e 27/11/2016 48 hours
December 2016 w/e 4/12/2016 48hours - w/e 12/12/2016 48 hours -w /e 18/12/2016 48 hours – w/e 25/12/2016 54 hours
January 2016 w/e 1/1/2017 60 hours – w/e 8/1/2017 36 hours – w/e 15/1/2017 54 hours – w/e 22/1/2017 54 hours – w/e 29/1/2017 54 hours
February 2017 w/e 5/2/2017 36 hours – w/e 12/2/2017 36 hours and w/e 19/2/2017 24 hours.
Section 19/23
The Complainant stated that his annual leave year was from April to March. He stated that he was provided with two weeks paid leave in the 2016/2017 annual leave year and he is claiming payment of a further two weeks annual leave due and not paid on termination of his employment.
Summary of Respondent’s Case:
The Respondent did not attend |
Findings and Conclusions:
On the basis of the evidence and on the uncontested evidence of the Complainant I find as follows- Payment of Wages Act, 1991 – 2015 I declare the complaint is well founded Organisation of Working Time Act, 1997 – 2015 Section 15. .This Section of the Act provides that an Employer shall not require an employee to work more than an average of 48 hours each week in a four month period. The evidence from the Complainant was that he worked 258 hours in January 2017 – 198 hours in December 2016 -192 in November 2016 and 192 in October 2016. He therefore worked a total of 840 hours in this four month reference period = 49.41 hours worked on average each week (840 hours divided by 17 weeks) I find that the Respondent has breached Section 1 5 of the Act. Section 19/23. Section 23 of the Act provides that on termination of the employment an employee is entitled to be paid accrued annual leave. The Complainant’s evidence presented to the Hearing shows that the Complainant worked in excess of 1365 hours in the 2016/2017 annual leave year. He was paid for two weeks. I find the Complainant is entitled to payment of two weeks annual leave on termination of his employment. |
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.
Payment of Wages Act, 1991-2015 CA-00009500-001
In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare this complaint is well founded. The Respondent has breached Section 5 of the Payment of Wages Act, 1991 – 2015. I direct the Respondent to pay the Complainant €3987.00, subject to any lawful deductions, within 42 days of the date of this Decision Organisation of Working Time Act, 1997 – 2015 CA-00009500-002 and CA-00009500-003 In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare the Respondent has breached Sections 15 and 23 of the Organisation of Working Time Act, 1997 – 2015. I direct the Respondent to pay the Complainant – €1000.00, subject to any lawful deductions in respect of annual leave due and not paid on termination of the employment and compensation of €1000.00 for breaches of Sections 15 and 23 of the Act. Both sums to be paid to the Complainant within 42days of the date of this Decision |
Dated: 31st August 2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Payment of Wages –Unpaid wages OWTA-Breaches of Sections 15 and 23 of the Act |