Complainant

Respondent

Anonymised Parties

A Bar Tender

An Entertainment Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00008408-001

26/11/2016

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

CA-00008408-002

26/11/2016

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

CA-00008408-003

26/11/2016

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

CA-00008408-004

26/11/2016

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

CA-00008408-005

26/11/2016

The Complainant was employed as a Bar Tender from October 29th 2016 to November 18th 2016. The Complainant submitted five claims to the WRC against the Respondent on November 26th 2016.

The Complainant submitted that he was unfairly dismissed both on a substantive and procedural basis. He stated the provisions of S.I. 146 were not applied in the context of his dismissal. He also alleged the provisions of natural and constitutional justice were not applied to the dismissal process and that he was not afforded the right of reply, representation or advised of any right to appeal the decision to dismiss.

The Complainant submitted he was not paid for 11 hours worked on October 29th 2016. He stated that he was no paid for 4.5 hours or the Sunday premium worked on November 13th 2016. He was not paid the contractual notice of his contract (one week) and he was underpaid his annual leave entitlements due to those shortfalls in payments.

The Complainant submitted he only received sporadic break during his employment and specifically did not receive no break on 2 shifts in contravention of the provision of the Organisation of Working Time Act 1997.

He also submitted he was not paid his full annual leave entitlements on the termination of his employment.

The Complainant also submitted he was not advised in writing of the start date of his contract and that his contract was unilaterally changed to exclude the first day of work and that he was not advised in writing that the notice element of his contract would be discontinued. He stated this was a breach of the Terms of Employment Information Act 1994.

The Complainant submitted that he was told just “good luck” on his final day of employment and was given no notice or explanation for the termination of his employment.

The Respondent was notified of the Hearing but verbally advised the WRC prior to the Hearing that they would not be attending the Hearing.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. This claim is Reference number CA-0008048-001. The core issue in this claim is that the Complainant was dismissed without notice, given no right of reply, no right to representation and no right of appeal. These are all fundamental breach of good industrial relations practice under S.I. 146 regarding the conduct of grievance or disciplinary processes. For an employer to treat a person in this manner is not conducive to good employee or industrial relations. I find that the Complainants fundamental right to fair process on the termination of his employment have been breached on several counts and I recommend the Complainant be paid 1,000 Euros for these poor practices by the Respondent in this instance.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Under claim reference number CA00008048-002 the Complainant stated he was not paid for 11 hours work on October 29th 2016, from 6pm to 5am, at a rate of 9.15 Euro per hour and he was legally contracted as an employee for this time. I find the Complainants claim well founded and award the Complainant 100.65 Euro for breach of the Payment of Wages Act under Section 5.1. of this Act which states “an employer shall not make a deduction from the wages of an employee unless the deduction is required or authorised to be made by virtue of any statute or ay instrument made under statute” etc.

Again, under claim reference number CA00008048-002 the Complainant stated he was paid for working 3 hours and he had worked 7.5 hours from 9pm to 4.30 am on Saturday November 12th 2016 a deficiency of 4.5 hours. I find the Complainants claim well founded and award the Complainant 41.17 Euro for breach of the Payment of Wages Act under Section 5.1. of this Act which states “an employer shall not make a deduction from the wages of an employee unless the deduction is required or authorised to be made by virtue of any statute or ay instrument made under statute” etc.

Under claim reference number CA-00008048-005 the Complainant was entitled to one week’s notice pay on termination of his contract. He was not paid this amount of 106.75 as his employment was terminated without notice. I find the Complainants case well founded and award the Complainat 106.75 Euros for this breach of the Complainant’s rights under the Terms of Employment (Information) Act 1994 section 5.1. (a) which requires an employer to notify, in writing, an employee of any changes to their contract of employment no later than one month after the change.

Under claim reference number CA-00008048-004 the Complainant submitted he was not paid 13.20 Euros holiday pay due. I find the Complainants case well founded and award the Complainant 13.20 Euros for the breach of Section 20.2 (a) of the Organisation of Working Time Act 1997 which states “The pay in respect of an employees annual leave shall (A) be paid to the employee in advance of his or her taking the leave”.

The Complainant also submitted he was not paid a Sunday premium for the Sunday Hours worked of those hours a deficiency of 51.17 Euros. I find the Complainants case well founded and award the Complainant 41.17 Euros for the non-payment of wages and 51.17 Euros Sunday premium for breach of the Organisation of Working Time Act 1997 (Also Claim Reference number CA-00008048-004) Euro for breach of the Organisation of Working Time Act under Section 14.1 (b) of the Act which states “an employee who is required to work on a Sunday..shall be compensated by otherwise increasing the employee rate of pay by such an amount as is reasonable having regard to all the circumstances by increasing the employees rate of pay by such an amount that is reasonable..etc”.

The Complainant submitted that he was not given breaks in line with Section 12.1 of the Act which states “An employer shall not require an employeeto work for more than 4 hours and 15 minutes without allowing him or her to a break of at least 15 minutes”. and had to work well over the allowed times under the Act without a break and specifically this was covered on two occasions and the Complainat advised that this was a frequent occurrence. I award the Complainant 2,000 Euros for this breach of the Act.

Non payment of wages, annual leave, changes to contract of employment and unfair termination processes