Complainant

Respondent

Anonymised Parties

Chef

Bar and Restaurant

Representatives

Self represented

Lisa Conroy Peninsula Group

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-00020501-001

11/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00020501-002

11/07/2018

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

CA-00020501-003

11/07/2018

The complaints are that the Respondent failed to pay the Complainant for wages and annual leave, that he never received written terms of conditions of employment and that he was required to work in excess of the permitted maximum weekly working hours.

The Complainant stated that he worked as a Chef for the Respondent from 16th April 2017.   He contends that payment of wages was sporadic and that following a period in December 2017 and January 2018 he had no option but to leave his employment. He stated that he had not received paid holidays with the exception of 1 week and 2 days. He stated that he had not received a written contract of employment. Further, he stated that his hours of work were generally 9am to 9pm and that he usually worked in or around 60 hours per week.

The Respondent contends that the Payment of Wages claims should be ruled out of time as they were submitted more than 6 months after the Complainant left his employment.   Further, the Respondent produced evidence to show that payment for wages during January were made urgently to him when he was on leave.   The Respondent concedes that the Complainant has not received a contract but contends that as he has not been prejudiced as a result and should not be awarded compensation. It is contended that the Complainant was not required to work in excess of the permitted hours. It is submitted that the Complainant generally came to work at 11.00am and left by 7pm Monday to Thursday and 9pm Friday to Sunday.

CA-00020501-001 Terms of Employment (Information) Act 1994

It is common case that the Respondent failed to furnish the Complainant with written terms of conditions of his employment in accordance with the requirements of section 3 of the Act.             It is in the interests of both employees and employers in relation to clarity around the various written terms, such as hours of work, remuneration, holidays that the employee is given written terms of employment within 2 months of commencing the employment.  I find the Complainant’s complaint to be well founded and in accordance with section 7 of the Act I require the Respondent to pay to the Complainant the sum of €550 compensation.

CA-00020501-002 Payment of Wages Act 1991

The Complainant contended that he was owed the amount of €2,200 wages and €1,100 for annual

leave when he vacated his employment. He amended the figure at the hearing to the total of€3,850.

This complaint was received on 11th July 2018. Section 41(6) of the Workplace Relations Act provides that an Adjudication Officer shall not entertain a complaint under the section if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. This in effect means that I can only entertain complaints that relate to alleged unlawful deduction of wages for the cognisant period from 12th January 2018.

Section 41 (8) of the Act provides that an Adjudicator may extend that period for a further 6 months if he or she is satisfied that reasonable cause prevented the complaint being presented within that time period.   Having examined the evidence in this case I do not find reasonable cause existed to extend the time. I find that the Complainant received 3 payments during January 2018 of €550 each and as he vacated his employment in January 2018, I find no wages were deducted from him for that period.

The Organisation of Working Time Act 1997 provides for a prescribed period of entitlement to annual leave of 4 working weeks or 8% of hours worked. In this case, I note that the Respondent provided no records on which the case they made that full annual leave entitlement was granted and I accept the Complainant’s evidence regarding the short periods of annual leave he was given during his employment.

Section 23 of the Act provides for compensation for annual leave accrued on cessation of employment. I find that the Respondent failed to pay to the Complainant the sum of €1,375 compensation for annual leave accrued.

I find his complaint under the Payment of Wages Act 1991 to be in part well founded and I require the Respondent to pay to the Complainant the sum of €1,365.

CA-00020501-003 Organisation of Working Time Act 1997

The Complainant contends he worked more than the permitted 48 hour week as prescribed in the Act.     I note the Respondent had no records of working time. Section 25 (4) of the Act provides that where an employer fails to keep records the onus of proof that the provision of the Act has been complied with lies with the employer. In this instant case, I find that the burden of proof has not been discharged.   I find the Complainant’s complaint to be well founded and in accordance with section 27 I require the Respondent to pay to the Complainant the sum of €1,200 compensation.

CA-00020501-001 Terms of Employment (Information) Act 1994

I find the Complainant’s complaint to be well founded and in accordance with section 7 of the Act I require the Respondent to pay to the Complainant the sum of €550 compensation.

CA-00020501-002 Payment of Wages Act 1991

I find his complaint under the Payment of Wages Act 1991 to be in part well founded, as it relates to payment on cessation of employment for annual leave accrued, and I require the Respondent to pay to the Complainant the sum of €1,365.

CA-00020501-003 Organisation of Working Time Act 1997

I find the Complainant’s complaint to be well founded and in accordance with section 27 I require the Respondent to pay to the Complainant the sum of €1,200 compensation.