Complainant

Respondent

Anonymised Parties

An Employee

A Pub and Restaurant

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012561-001

17/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012561-002

17/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012561-003

17/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012561-005

17/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00012561-006

17/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012561-007

17/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012561-008

17/07/2017

The Complainant worked for the Respondent from 1 March 2017 to 21 June 2017.

It was submitted on behalf of the Complainant, that he had a verbal agreement with the Respondent whereby he would be paid at the rate of €12 per hour for a 40-hour week. It was further stated that his working week consisted of 10:00am to 6:00pm (Tuesday to Thursday) and 10:00am to 7/8:00pm (Friday to Sunday)

With regard to the specific elements of his complaint, the Complainant made the following submissions:

CA-00012561-001 (Terms of Employment (Information) Act, 1994)

The Complainant stated that he did not receive a contract of employment during his time in the Respondent’s employment.

CA-00012561-002 (Organisation of Working Time Act, 1997)

The Complainant contends that he did not receive any compensation for work on Sundays or on bank holidays.

CA-00012561-003 (Organisation of Working Time Act, 1997)

The Complainant contends that his workday started at 10:00am and that he was required to work straight through until sometime between 6:00pm and 8:00pm without any breaks. The Complaint further contended that this happened every day.

CA-00012561-005 (Terms of Employment (Information) Act, 1994)

The Complainant submitted that he agreed a contract rate of €12 per hour for a 40 week. He contends that the Respondent paid him €480 gross every week, irrespective of the number of hours worked. In this regard, the Complainant contends that he worked an additional 8 hours each week and never received payment for this.

CA-00012561-006 (Minimum Notice and Terms of Employment Act, 1973)

The Complainant stated he was informed, in a phone call from the Respondent on 21 June 2017, that his employment was being terminated. The Complainant further stated that he received no notice or payment in lieu of notice.

CA-00012561-007 (Organisation of Working Time Act, 1997)

The Complainant stated that he received no holiday pay for his period of employment.

CA-00012561-008 (Organisation of Working Time Act, 1997)

The Complainant stated that he never got time off in lieu of public holidays or payment in lieu of time off.

As background to his response, the Respondent stated that he sold the business in mid-June 2017, however, there were delays in closing the sale, which only went through on 9 July 2017.

With regard to the specific elements of the Complainant's complaint, the Respondent made the following submissions:

CA-00012561-001 (Terms of Employment (Information) Act, 1994)

When the Respondent initially considered employing the Complainant, it was on the understanding that he was a chef. However, the Respondent subsequently discovered that the Complainant had no credentials/qualifications in this regard.

Consequently, the Respondent stated that he could not give the contract of employment.

CA-00012561-002 (Organisation of Working Time Act, 1997)

The Respondent stated that the business was subjected to an investigation by the Workplace Relations Commission Inspectorate. The Respondent stated that as a result of this, a sum of €752.25 was paid in full and final settlement of all claims under the Organisation of Working Time Act, 1997.

The Respondent stated that, as a consequence, the Complaint is not owed any further money.

CA-00012561-003 (Organisation of Working Time Act, 1997)

The Respondent stated that the Complainant could take his breaks whenever he wanted. However, the Respondent further stated that it was very difficult to get the Complainant to take breaks.

In further submission in this regard, the Respondent stated that the business was very quiet, particularly during May, when it only opened at 6:00 pm, on many evenings.

CA-00012561-005 (Terms of Employment (Information) Act, 1994)

The Respondent refuted the Complainant's claim in relation to the additional hours.

CA-00012561-006 (Minimum Notice and Terms of Employment Act, 1973)

The Respondent stated that the Complainant was having issues outside of work and knew he was not doing his job. The Respondent stated that the Complainant was becoming a liability and was getting in the way.

CA-00012561-007 (Organisation of Working Time Act, 1997)

See the Respondent’s submission under CA-00012561-002 above.

CA-00012561-008 (Organisation of Working Time Act, 1997)

See the Respondent’s submission under CA-00012561-002 above.

CA-00012561-001 (Terms of Employment (Information) Act, 1994)

The evidence presented shows that the Complainant was not provided with written terms and conditions of employment within two months of the date of commencement of his employment.

Consequently, the Respondent is in breach of Section 3 (1) of the Terms of Employment (Information) Act, 1994.

However, I believe there to be mitigating circumstances in this particular situation. These include, the casual and temporary nature of the arrangement in the first place and the fact that the business was in the process of changing hands with new owners about to take over. In a context, where the Respondent's total employment was just over three months, I am satisfied that all of these factors may have played a role in the Respondent not having complied with the strict application of the law in this regard.

Consequently, based on the above, I have factored these mitigating circumstances into my decision in relation to the level of compensation to be awarded to the Complainant. On that basis, I award the Complainant to sum of €150, which I consider to be a fair and equitable compensation in the circumstances.

CA-00012561-002 (Organisation of Working Time Act, 1997)

This complaint related to claims that the Complainant did not receive compensation for working on Sundays and bank holidays.

Based on the outcome of the WRC Inspection, I am satisfied that amount of €752.25, which was paid to the Complainant, included all outstanding payments relating to working on Bank Holidays.

With regard to the claim for Sunday work, the Complainant failed to provide any substantiating or documentary evidence to support this claim. Consequently, his complaint is not upheld.

CA-00012561-003 (Organisation of Working Time Act, 1997)

Other than his oral evidence to the effect that he never got breaks, the Respondent did not provide any substantiating evidence in this regard.

In response, the Respondent stated that the Complainant was free to take breaks whenever he wanted, however, it proved difficult to get him to do so.

Taking into account the Respondent's evidence in relation to how busy the pub was and the impact of that on opening hours, which appear to have been significantly restricted for a substantial portion of the Complainant’s employment with the Respondent, I find the Complainant's contentions in this regard to be somewhat lacking in credibility.

Consequently, I find that the Complainant's claim in this regard is not well founded and, therefore, is not upheld.

CA-00012561-005 (Terms of Employment (Information) Act, 1994)

The Complainant's claim relates to payment for additional hours worked. The claim, which is made here under the Terms of Employment (Information) Act, 1994 is clearly for the payment of wages and, therefore, is, in my view, misconceived in that regard, as it should more appropriately have been made under the Payment of Wages Act, 1991.

Notwithstanding the above, I find, in any event, that the Complainant's claim in relation to additional hours worked is not well founded. In the context of the overall levels of business and the opening hours schedule, as set out under CA-00012561-003, I find the claim somewhat lacking in credibility.

Consequently, on that basis, the complaint is not upheld.

CA-00012561-006 (Minimum Notice and Terms of Employment Act, 1973)

In considering this element of the Complainant's complaint, I note his evidence to the effect that he had agreed with the Respondent to stay working to the last day the business was open. However, the evidence suggests that the Complainant's employment was terminated on 21 June 2017 without any prior notice.

Based on the above, I find that the Complainant was not provided with the statutory notice he was entitled to under Section 4 (1) and (2) of the Minimum Notice and Terms of Employment Act, 1973.

Consequently, I find in the Complainant's favour and award one week’s pay, as his statutory entitlement.

CA-00012561-007 (Organisation of Working Time Act, 1997)

This complaint related to claims that the Complainant did not receive his holiday pay entitlement.

Based on the outcome of the WRC Inspection, I am satisfied that amount of €752.25, which was paid to the Complainant, included all outstanding payments relating to annual leave.

Consequently, the claim in this regard is not upheld.

CA-00012561-008 (Organisation of Working Time Act, 1997)

This complaint related to claims that the Complainant did not receive his public holiday entitlement.

Based on the outcome of the WRC Inspection, I am satisfied that amount of €752.25, which was paid to the Complainant, included all outstanding payments relating to public holidays while in the Respondent’s employment.

Consequently, the claim in this regard is not upheld.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out below my decisions in relation to the specific elements of the Complainant's claims:

CA-00012561-001 (Terms of Employment (Information) Act, 1994)

With regard to this element of the Complainant's claim, I find in his favour and award him the sum of €150.00, based on the considerations are set out above.

CA-00012561-002 (Organisation of Working Time Act, 1997)

Based on the considerations are set out above, I find the Complainant's claim in this regard is not upheld.

CA-00012561-003 (Organisation of Working Time Act, 1997)

Based on the considerations are set out above, I find the Complainant's claim in this regard is not upheld.

CA-00012561-005 (Terms of Employment (Information) Act, 1994)

In relation to this element of the Complainant's complaint, I find that his claim is misconceived and, in any event, to be without substantive basis. Consequently, the complaint in this regard is not upheld.

CA-00012561-006 (Minimum Notice and Terms of Employment Act, 1973)

Under this heading, I found that the Complainant did not receive his statutory entitlement to notice and, on that basis, I award him one week's salary, amounting to €480, which is subject to the normal statutory deductions in relation to wages.

CA-00012561-007 (Organisation of Working Time Act, 1997)

Based on the considerations are set out above, I find the Complainant's claim in this regard is not upheld.

CA-00012561-008 (Organisation of Working Time Act, 1997)

Based on the considerations are set out above, I find the Complainant's claim in this regard is not upheld.

Terms of Employment (Information) Act, 1994

Organisation of Working Time Act, 1997

Minimum Notice & Terms of Employment Act, 1973