Complainant

Respondent

Anonymised Parties

A Waiter

A Restaurant

Representatives

  Manager

 Accountant

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-00018747-001

26/04/2018

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

CA-00018747-002

26/04/2018

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

CA-00018747-003

26/04/2018

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

CA-00018747-004

26/04/2018

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

CA-00018747-005

26/04/2018

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

CA-00018747-006

26/04/2018

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

CA-00018747-007

26/04/2018

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

CA-00018747-008

26/04/2018

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

CA-00018747-009

26/04/2018

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

CA-00018747-010

26/04/2018

The Complainant worked as a Waiter with the Respondent company for two years. There was a significant falling out between the parties when the Complainant took annual leave at what the employer perceived to be too short notice.

The Complainant represented himself and provided me with supporting documentation. The Complainant says he was Unfairly Dismissed following his return to work after a period of annual leave which had been sanctioned by the Employer having been requested of the Employer in the manner prescribed by the Employer. In addition, the Complainant says the workplace was discriminatory against him and that he was harassed by the Employer.

Other breaches of Statutory Terms of Employment were also outlined by the Complainant.

The Respondent Manager gave evidence on behalf of the Respondent Company. Again, I was provided with some limited supporting documentation. The Respondent refuted al allegations concerning Unfair Dismissals and workplace discrimination. Regarding the breaches of other Acts the Respondent conceded some issues and rejected others.

I have carefully considered the evidence adduced by both sides in connection with the various complaints instituted by the Complainant herein. The employment relationship appears to have worked well initially. The Complainant comes from Brazil and is in Ireland to study. In accordance with his Visa, he is entitled to hold down a part time job. The Respondent Manager described the Complainant as a most excellent waiter who had an excellent rapport with his clientele and neither party recorded a difficulty from when the Complainant started in August of 2016 to in and around February 2018. As evidence of the good relationship between the parties I was provided with documents which tended to show how the Employer was putting in a good word with potential IT Employers (the Complainant’s professional background), as well as communicating on the complainant’s behalf with his college when the Complainant was being assigned incorrect classes.

I note from the payslip provided that the Complainant was earning about €311.00 per week together with any tips he might or might not have received. The level of pay would suggest the Complainant worked about 32 hours per week as the rate of pay was €9.55 per hour.

The Respondent concedes that there was no Contract of Employment provided and that this was an oversight on the part of his spouse who ordinarily dealt with this side of things. All other members of staff have appropriate Terms and Conditions Statements.

In February 2018 the relationship appeared to become more negative. In early February 2018 there was an incident in the workplace concerning the switching off of an internal phone so that customers could not get through. The Complainant was not responsible for this but in the aftermath of this being discovered by the Manager, the Complainant overheard a conversation between the Manager and another member of staff and in particular heard the Manager comment to the effect that such a stupid action was a Brazilian thing. The Complainant took offence at this comment and took it up with the Manager who downplayed the comment. This incident has been described to me as evidence of the Employer’s discrimination against him by reason of harassment and a complaint has been made under Section 77 of the 1998 Act (as amended). In particular the Complainant seeks redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in harassing him. This appears to have been a one-off incident.

Thereafter and closer to end of February 2018 the Complainant obtained good value flights to Brazil and wanted to go home for a vacation. There is a divergence on when exactly the Complainant notified his Employer of his plan to be away for more than three weeks. The Employer says he found out three days before the intended departure and the Complainant says it was about 11 days before the intended departure.

In general terms I would have to accept that the notice given was inadequate for the imminent departure. I accept that the Employer (even if he had 10 days notice) was on the back foot in losing an experienced member of staff at a busy time of the year. I do not think it unreasonable to expect that a three-week absence would be notified at least 4 to 6 weeks before departure. I would also expect that best practise would be to obtain the sanction before any ticket is purchased. The Complainant had booked his ticket and presented his departure as a fait accompli without any regard for the availability of staff in his absence.

In any event the Employer, whilst under pressure, did manage the busy restaurant situation in the Complainant’s absence. The evidence presented to me by the Respondent is that the Complainant was gone for 25 days and the next time that he met with the Complainant was on the 23rd of March when the Complainant presented himself in the workplace. Again, there are two different accounts of what happened at this meeting. I gather it was strained, though the Respondent said that it was not on account of the holiday just taken, but had more to do with the manner of presentation with the Complainant turning up dishevelled and seemingly smelling of alcohol. The Respondent Manager categorically says he did not fire the Complainant but did tell him to get his act together.

I was provided with a series of emails which were created in the aftermath of the 23rd March meeting. The Complainant on the 26th of March wrote to the Respondent stating how disappointed he was at having been dismissed from his duties on the 23rd. The Complainant states in the letter that he put the reason for his dismissal down to his having taken his holidays. The Complainant sought his P45.

By way of response, the Manager emails the Complainant on April 1st and says that there was no dismissal and that if the Complainant has addresses his “personal issues” he should come back into work and get scheduled onto the roster. I understand this to have meant that the Employer was saying that the Employee’s position was open to him if he was prepared to come in to the workplace without having taken alcohol and/or with the understanding that taking holidays at such short notice was unworkable.

There followed a number of emails which did not progress matters. I have to be mindful of the fact that whatever happened on the 23rd of March meeting, the Employer repeatedly asked the Complainant to meet with him to “work it out” but the Complainant simply emphatically insisted that his employment had been terminated.

The Complainant claims that a dismissal has occurred and that the dismissal was unfair in all the circumstances. The Law states that the burden of proof rests with the Employer to demonstrate it has acted fairly and reasonably in all the circumstances. On balance I do not accept that the Respondent dismissed the Complainant. The only independent evidence is a trail of emails which do not support the Complainant’s contention and therefore I must infer from my understanding of what happened is that the Complainant himself opted not to return to the workplace.

In addition to the matters herein before described, the Complainant has raised Complaints regarding various aspects of his employment which he says operated contrary to Statute.

Under the Payment of Wages Act, 1991 the Complainant says the Employer has failed to pay him in the prescribed manner in that the payment often falls after the expected date of payment. The Employer conceded this may happen from time to time arising out of cash flow issues but often related to the Employee’s own Bank being slow. It is noted that there is no allegation of non-payment of wages in this regard and there is no evidence of any hardship or inconvenience caused by the tardiness.

Various claims have been brought under the Organisation of Working Time Act 1997 and I heard evidence in connection with each of the six Complaint made.

Daily rest period - Section 11 states that “An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.”

The Complainant gave evidence that on at least one occasion he had worked late into the night and returned early the next morning with a rest period well below the 11 hours demanded. The Employer recalled the occasion as being a one off private evening event (the Restaurant usually closed for evening meals) which the Complainant asked to do because of the lucrative Tips available.

Rests and intervals at work – Section 12 States that “(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).”

The Complainant gave evidence that the breaks were not given or were given in the expectation that they could be cut short subject to customer’s demands. The Respondent indicated that he took great pride in ensuring the workforce were all given a full meal before starting a shift and that he expected flexibility.

Weekly rest periods – Section 13 States “(1) In this section “daily rest period” means a rest period referred to in section 11. (2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.”

The Complainant did not expand on this Complaint in the course of his evidence.

Sunday work –Section 14 states “(1) 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 Employer herein concede it paid no particular premium having regard to any hours worked on a Sunday. The Employee claimed that he had worked 51.5 Sunday hours in the six months immediately preceding this complaint.

Weekly working hours – Section 15 states “An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period hereafter in this section referred to as a “reference period ”…..”

I note that the Complainant’s payslip does not disclose that he worked in excess of the hours allowed in the relevant reference period so this Complaint does not stand up.

Entitlement in respect of public holidays – Section 21 States “(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely— (a) a paid day off on that day,

(b)  a paid day off within a month of that day,

(c)  an additional day of annual leave,

(d)  an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom. “

The Complainant states that he was not paid for two Public Holidays in the six month period immediately preceding the issuing of the Complaint Form herein.