Complainant

Respondent

Anonymised Parties

{An Employee}

{A Butcher}

Representatives

Richard Grogan Richard Grogan & Associates

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-00013874-001

05/09/2017

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

CA-00013874-002

05/09/2017

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

CA-00013874-003

05/09/2017

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

CA-00013874-004

05/09/2017

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

CA-00013874-005

05/09/2017

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

CA-00013874-006

05/09/2017

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

CA-00013874-007

05/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00013874-008

05/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00013874-009

05/09/2017

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

CA-00013874-010

05/09/2017

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

CA-00013874-011

05/09/2017

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

CA-00013874-012

05/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00013874-013

05/09/2017

The Complainant is non-national and was employed as a Butcher with the Respondent from 10th July 2011. He was dismissed on 1st May 2017.

CA-00013847-001

The Complainant claims he did not receive a statement of terms which complies with Section 3 of   the Terms of Employment (Information) Act 1994.

There was no appearance by the Respondent at the hearing, which has ceased trading. The Respondent was notified of the hearing to their current address.

The Complainant gave evidence that he never received a statement of his terms and conditions of employment.

He seeks compensation based on weekly remuneration of 600 euro, and says payment of his wages was made to him in cash. He was not aware the employer only made returns to the Revenue Commissioners of weekly wages for him of 240 euro per week. Since discovering this following termination of his employment, he reported his employer to the Revenue Commissioners.

S 7 (2) of the Terms of Employment (Information) Act 1994 provides that a decision of an Adjudication Officer under S41 of the Workplace Relations Act 2015 in respect of a contravention of S3 of the Act shall do one or more of the following namely:-

(a)    Declare that the complaint was or, as the case may be, was not well founded,

(b)    Either-

(i)                  Confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3,4,5, of 6 or,

(ii)                Alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c)     Require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d)    Order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

The Complainant’s weekly remuneration during the period of his employment was 240 euros per week. The Complainant’s evidence is that he received 600 euro per week cash, and there is no documentary evidence of this. As he is non-national he says he was unaware that the Tax and Social Security recorded his weekly wages of 240 euro per week.

In the Supreme Court decision of Martin v Galbraith [1942] 76 I.L.T.R 94, Murnaghan J in his judgement considered the Act which determined payment of overtime to an employee who had worked excess hours permitted by the Act. He said “Parties to a contract, which produced illegality under a statute passed for the benefit of the public, could not sue upon the statute unless the legislature had clearly given a right to sue. Overtime could only be legally worked by a person who was aged sixteen or upwards, and a young person who worked overtime illegally could not, he thought sue for it under S. 20 (6)…”. He found that the employer could not be deemed to have made a contract which the statute declared to be illegal.

The Complainant was employed for almost 6 years with the Respondent. Income tax, pay related social insurance and other levies are levied by the Revenue Commissioners on all income earned in the state pursuant to the Taxes Consolidation Act 1997 as amended and Social Welfare legislation. This information is available to the public. Ignorance of the law is no excuse for an individual when a breach of the law occurs.

The Complainant’s earnings of 240 euro per week which were returned by the Respondent to the Revenue Commissioners is the remuneration which can be lawfully taken into account by me under the Terms of Employment (Information) Act 1994 in making an award of compensation. Any additional monies allegedly discharged by the Respondent to the Complainant, is in the nature of an untaxed payment and cannot be taken into account.

This is a continuing obligation of the Respondent to provide a statement of terms of employment. I find the complaint is well founded and award the Complainant compensation of 2 weeks remuneration total 420 euro.

I find the complaint is well founded and award the Complainant 2 weeks remuneration of 240 euro per week totalling 420 euro compensation.

The Complainant is non-national and was employed as a Butcher with the Respondent from 10th July 2011. He was dismissed on 1st May 2017.

CA-00013847-002

The Complainant claims he did not receive his annual leave entitlement in leave year ending 31 March 2017 nor to 1 May 2017. He worked 5 days per week including Sundays every week. He was not paid at the correct rate which was 600 euro per week, and Sunday premium was not taken into account. In addition, he seeks compensation for failure to take his 2 week’s holidays.

There was no appearance by the Respondent at the hearing. The Respondent was notified of the hearing at their current address.

The Complainant worked 57 hours per week and is entitled to 20 days statutory leave pursuant to S19 of the Organisation of Working Time Act 1997. The Complainant is owed annual leave of 20 days due for year end 31 March 2017 and in addition he is owed holidays for the period from 1 April to 1 May 2017 which is 1.88 days pro-rata for time worked.

The Complainant works 5 days a week one of which is a Sunday. S14 (1) of the Organisation of Working Time Act 1997 provides:

“An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely

(a)    By the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b)    By otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c)     By granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d)    By a combination of two or more of the means referred to in the preceding paragraphs..”

The Complainant did not receive any statement of the terms of his employment. He has given evidence that he received a payment of 600 euro per week, and he was never informed of any payment in respect of Sunday premium. I have already found in CA-00013847-001 that in considering the Complainant’s remuneration I can only lawfully take into account the weekly wage of 240 euro paid to him pursuant to S20 of the Act and which was returned to the Revenue Commissioners.

I find the Complainant is entitled to 21.88 days annual leave at a rate of 240 euro per week, and in addition 4 days Sunday premium of 35 euro per day. In addition, I award 120 euro compensation for failure to allow 2 weeks holiday.

I find the complaint is well founded and the Complainant is owed 21.88 days annual leave at a rate of 48 euro per day, and in addition 4 days Sunday premium of 35 euro per day, and 120 euro compensation for failure to allow 2 weeks holiday total 1,310.24 euro.

The Complainant is non-national and was employed as a Butcher with the Respondent from 10th July 2011. He was dismissed on 1st May 2017.

CA-00013847-003

The Complainant claims he did not receive his entitlement to 4 weeks annual leave entitlement in leave year ending 31 March 2017, nor 2 weeks uninterrupted leave.

There was no appearance by the Respondent at the hearing. The Respondent was notified of the hearing at their current address.

I have already awarded in CA- 00013847-002 compensation to the Complainant for the failure to obtain 2 weeks uninterrupted leave. I award a further 50 euro to the Complainant for failure to obtain the additional 2 weeks leave due.

I find the complaint is well founded and the Complainant is awarded 50 euro compensation for failure to allow the additional 2 weeks holiday due.

The Complainant is non-national and was employed as a Butcher with the Respondent from 10th July 2011. He was dismissed on 1st May 2017.

CA-00013847-004

The Complainant withdraws his claim for public holidays due.

There was no appearance by the Respondent at the hearing. The Respondent was notified of the hearing at their current address.

The complaint is withdrawn.

The Complainant is non-national and was employed as a Butcher with the Respondent from 10th July 2011. He was dismissed on 1st May 2017.

CA-00013847-005

The Complainant claims he did not receive his entitlement to proper rest breaks. He received one 30   minute or two 30 minute breaks usually at noon and worked 7am to 7pm 4 days per week. He worked 7am to 5pm on Sundays and received one 30 minute break.

There was no appearance by the Respondent at the hearing, who are no longer trading. The Respondent was notified of the hearing at their current address.

The Complainant says that he worked 57 hours per week. He has not furnished full particulars of his claim in submissions made.

The complaint was made on 5th September 2018 and the Complainant’s last day of work was on 1st May 2018. S27 of the Organisation of Working Time Act 1997 provides that the complaint must be presented within 6 months of the alleged contravention. The period of contravention of the Act took place from 6 March 2017 to 1 May 2017 which is a period of 8 weeks.

Section 12 of the Organisation of Working Time Act 1997 provides for rests and intervals at work. “S12 (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes, such a break may include the break referred to in subsection (1).

(3)…..

(4)A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

There was no breach of S12 by the Respondent on Sundays when the Complainant worked for 10 hours, as he was given 30 minutes break. I accept the evidence of the Complainant that he worked 57 hours per week. In relation to the other 4 days carried out in 12 hour shifts, the Complainant was entitled to a further break of at least 15 minutes. His evidence is that he sometimes received a second 30 minutes break, and there were breaches of this but this was not particularised. I find the evidence is sufficient to raise the probative burden in line with Antanas v Nolan Transport [2011] 22 E.L.R. 311.

The 30 minute break given was at noon so in breach of S12 which requires the break to be given after 4.5 hours which is at 11.30am. The evidence given is uncontested. I find that the Complainant did not receive his 15 minute break on some occasions prior to the termination of his employment, and award 200 euro compensation.

I find the complaint is well founded, and award 200 euro compensation for failure to afford 15 minute breaks to the Complainant on occasions prior to the termination of his employment.

The Complainant is non-national and was employed as a Butcher with the Respondent from 10th July 2011. He was dismissed on 1st May 2017.

CA-00013847-006

The Complainant claims he was required to work more than the maximum permitted number of hours amounting to 57.5 hours per week.

There was no appearance by the Respondent at the hearing. The Respondent was notified of the hearing at their current address.

The Complainant claims that he was consistently expected to work over the maximum weekly hourly working week and more than an average of 48 hours weekly in breach of S15 of the Organisation of Working Time Act 1997.

Employers are not permitted to allow employees to work excessive hours as stated in IBM Ireland v Svoboda DWT18/2008. The Complainant’s representative submitted that overtime was not agreed, and this was a regular work schedule.

The complaint was made on 5th September 2018 and the Complainant’s last day of work was on 1st May 2018. S27 of the Organisation of Working Time Act 1997 provides that the complaint must be presented within 6 months of the alleged contravention. The period during which the contravention is alleged is 8 weeks.

I accept that the Complainant’s evidence that he worked 57.5 hours per week and he was required to work in breach of S15 of the Act in the months prior to termination of his employment. I award compensation of 300 euro.

I find the complaint is well founded and award 300 euro compensation for breaches of S15 due to work hours required well in excess of 48 hours per week.

The Complainant is non-national and was employed as a Butcher with the Respondent from 10th July 2011. He was dismissed on 1st May 2017.

CA-00013847-007

The Complainant claims he did not receive Sunday premium in relation to his work hours. He worked 5 days per week including Sundays every week. He was not paid Sunday premium.

There was no appearance by the Respondent at the hearing. The Respondent was notified of the hearing at their current address.

The Complainant works 5 days a week one of which is a Sunday. S14 (1) of the Organisation of Working Time Act 1997 provides:

“An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely

(e)    By the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(f)      By otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(g)    By granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(h)    By a combination of two or more of the means referred to in the preceding paragraphs..”

In order to demonstrate compliance with S14 of the Act, it is for the Respondent to show that the hourly rate contains an element intended to compensate the Complainant for the requirement to work on Sunday. This must be clearly discernible from the contract of employment or the circumstances surrounding the conclusion of the contract of employment as stated by the Labour Court Viking Security Ltd v Valent, DWT1489. The Respondent has not demonstrated compliance with S14 of the Act and I find the complaint is well founded.

The period of contravention of the Act is 8 weeks as the complaint was made on 5th September 2017.

I find the Complainant is entitled to Sunday premium of 35 euro per Sunday for a period of 8 weeks which totals 280 euro.

I find the complaint is well founded and the Complainant Sunday premium of 35 euro for a period of 8 weeks which totals 288 euro.

The Complainant is non-national and was employed as a Butcher with the Respondent from 10th July 2011. He was dismissed on 1st May 2017.

CA-00013847-008

The Complainant claims he was made redundant by the Respondent on 1 May 2017. He was the only employee of the business other than family members. On 1 May 2017 the shop closed and the business ceased. He was informed it owed too much money. He was not able to obtain his knives from the shop.

He was not paid anything more by the employer and seeks a redundancy payment, which is without prejudice to his claim for unfair dismissal.

There was no appearance by the Respondent at the hearing. The Respondent was notified of the hearing at their current address.

The Complainant has given evidence of his employment since 10th July 2011 and the termination of his employment on 1 May 2017. Since then the business premises of the employer has been closed and it is not trading.

In the circumstances, in accordance with s7 of the Redundancy Payments Act 1967 I find the Complainant was dismissed by reason of redundancy. I have already found in CA-00013847-001 that in considering the Complainant’s remuneration I can only lawfully take into account the weekly wage of 240 euro paid to him which was returned to the Revenue Commissioners.

He is entitled to a redundancy payment for the period 10 July 2011 to 1 May 2017 based on his weekly remuneration of 240 euro per week.

My decision is that the complaint is upheld and the Complainant is entitled to a redundancy payment for the period 10 July 2011 to 1st May 2017 based on his remuneration of 240 euro per week.

The Complainant was employed from 10th July 2011 to 1st May 2017 as a butcher with the Respondent.

CA-00013847-009

The Complainant says he was unfairly dismissed on 1 May 2017 and he has 12 months service. He was told the company owed too much money and he was being made redundant. He did not receive any redundancy payment. The Complainant says if it is not an unfair dismissal he has been dismissed due to redundancy.

The Respondent says he was the only employee of the Respondent who was not a family member. The business has been closed down and is no longer trading.

The Respondent did not attend the hearing. The Respondent received notice of the hearing which was sent to its address.

S6 (1) of the Unfair Dismissals Acts 1977-2015 provides that the dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6 (4) of the Acts provides that the dismissal of an employee shall be deemed not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)    The capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)    The conduct of the employee,

(c)     The redundancy of the employee, and

(d)    The employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

S6 (6) of the Act provides that the onus shall be on an employer to show that the dismissal resulted wholly or mainly from one or more of the grounds set out in S 6 (4) or that there were other substantial grounds justifying the dismissal.

The Respondent has been notified of the claim and the hearing, and there is no appearance by it in order to respond to the claim.

The Complainant’s representatives have confirmed that the Respondent’s business closed on 1st May 2017 and has not traded since. The Complainant was informed that he was being made redundant on 1st of May 2017 due to the financial circumstances of the company albeit no redundancy payment or notice due was paid following dismissal.

In accordance with S6 (4) of the Unfair Dismissals Acts 1977-2015, in light of the evidence submitted, I find the Complainant was dismissed due to redundancy which is a fair dismissal.

The complaint of unfair dismissal fails as it was due to redundancy which is a fair dismissal pursuant to S6 (4) of the Unfair Dismissals Acts 1977-2015.

The Complainant was employed from 10th July 2011 to 1st May 2017 as a butcher with the Respondent.

CA-00013847-010

The Complainant says he did not receive his minimum notice due of 4 weeks.

The Respondent did not attend the hearing. The Respondent received notice of the hearing which was sent to its address.

Taking into account the uncontroverted evidence of the Complainant, I find that the Complainant is due 4 weeks minimum notice in accordance with Section 4 (2) of the Minimum Notice and Terms of Employment Act 1973.

The complaint is upheld and the Complainant is entitled to 4 weeks minimum notice of 240 euro per week in accordance with S4 (2) of the Minimum Notice and Terms of Employment Act 1973, total 960 euro.

The Complainant was employed from 10th July 2011 to 1st May 2017 as a butcher with the Respondent.

CA-00013847-011

The Complainant complains he was not permitted to work his notice. If he had done so he would have been entitled to a further 1.8 days of holidays.

The Respondent did not attend the hearing. The Respondent received notice of the hearing which was sent to its address.

The Complainant has already been compensated for his minimum notice in CA-00013847. I uphold the complaint but do not make any award of compensation based on the De Minimus rule.

The complaint is upheld, minimum notice has already been awarded but no award of compensation is made based on the De Minimus rule.

The Complainant was employed from 10th July 2011 to 1st May 2017 as a butcher with the Respondent.

CA-00013847-012

The Complainant complains that he has been discriminated against by his employer in terms of S6 and S8 of the Employment Equality Acts 1998-2015 in that he was treated less favourably than another person is has been or would be treated in a comparable situation on the race ground in relating to getting a job and the way he was treated.

He says that he was earning 600 euro per week but tax and Social Security has been recorded of 240 euro per week. His employer was involved in tax evasion and social security fraud. This has put him in a vulnerable position as a non-national who does not have supports in the country that an Irish national would have. He cannot prove what he was actually paid as he was not given a contract of employment. It is reasonable to assume that an Irish worker would not have accepted a role where the individual is expected to work excessive hours, no proper rests, no holiday, Sunday premium. The significant breaches of numerous employment Acts is indicative of an employer who is involved in activities designed to discriminate against a non-national.

This will impact on the Complainant in respect of his redundancy payments as the Department of Social Protection will only proceed with a payment based on the records that they hold which are clearly incorrect.

The Respondent did not attend the hearing. The Respondent received notice of the hearing which was sent to its address, and has ceased trading.

The Complainant alleges that he has been subjected to a pattern of discriminatory conduct in relation to employment breaches for failure to furnish a contract of employment, no proper rest breaks, excessive hours, no holiday and no Sunday premium by his employer.

S6 of the Employment Equality Acts 1998-2015 provides:

(1)    For the purposes of this Act and without prejudice to its provisions relating to discrimination occuring in particular circumstances discrimination shall be taken to occur where-

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which-

(i) exists

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iii)               is imputed to the person concerned,

(b)………

(2) As between any 2 person s, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are-

………

(i)      that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”….

The Complainant’s representatives allege that there is a discriminatory pattern of conduct in various breaches of employment Acts by the Respondent, this amounts to race discrimination and that an Irish national would not have accepted such a role.

The Labour Court in Valpeters v Melbury Developments [2010] 21 E.L.R. 64 sets out the requirements of S85A of the Employment Equality Acts 1998-2015 which requires that the Complainant must first establish facts from which discrimination may be inferred. There is no evidence that persons of a different race or nationality were or would be treated more favourably proffered by the Complainant here. The Labour Court said in that case, many employers in the construction industry wrongly classify workers who are in reality employees as subcontractors as a device to avoid their responsibilities under employment tax and social welfare legislation. The practice of employers breaching employment Acts and tax and social welfare legislation is by no means confined to workers whose national origin is outside Ireland.

I find the Complainant has failed to establish a prima facie case of race discrimination in this complaint and the complaint is dismissed.

My decision is the complaint is dismissed as there is no prima facie case of race discrimination established by the Complainant.

The Complainant was employed from 10th July 2011 to 1st May 2017 as a butcher with the Respondent.

CA-00013847-013

The Complainant says he did not receive the appropriate payment in lieu of notice of termination of his employment.

The Respondent did not attend the hearing. The Respondent received notice of the hearing which was sent to its address. The Respondent is no longer trading.

In CA-00013847-010 I already made an award in respect of 4 weeks minimum notice due. The Respondent is no longer trading. No further compensation is awarded under the De Minimus rule.

The complaint is well founded however, no further compensation is awarded under the De Minimus rule. Minimum notice has already been awarded.