Complainant

Respondent

Anonymised Parties

A restaurant and bar manager

A restaurant and bar

Representatives

The complainant

The owner’s husband

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018927-001

03/05/2018

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

CA-00018927-002

03/05/2018

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

CA-00018927-005

03/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00018927-006

03/05/2018

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

CA-00018927-008

03/05/2018

The complainant worked for a period of approx. 10 weeks for the respondent and was not given a copy of his terms and conditions of employment. He was not paid for public holidays during the Christmas period.

The complainant was employed by the respondent as the restaurant and bar manager from 6th November 2017 until 18th January 2018.

He worked on 15th and 16th January and was not paid for these dates. He worked on both the 26th December and 1st January, both bank holidays. He worked an average of 60 hours per week and did not receive any holiday pay.   His total period of employment was 10 weeks and 2 days. The respondent informed him that as he was on probation he was not entitled to holiday pay.

The respondent did not give the complainant a statement in writing of his terms and conditions of employment. Neither did he receive payslips. The respondent did not give him his P45 at the time of his departure.

The respondent states that there was a contract which the complainant did not sign. Delays in finalising his P45 and tax related to the fact that he was being paid a fixed amount of money and that his wife had all his tax credits. He had two days off during the Christmas week. His last pay included 5 days holiday pay.

The Terms of Employment (Information) Act, 1994 requires;

3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),  

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

     (i) incapacity for work due to sickness or injury and paid sick leave, and

     (ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

It is clear from the evidence of both parties that the respondent did not comply with this statutory obligation and therefore this complaint is well founded and upheld.

The agreement between the parties to pay the complainant a fixed sum nett of tax undoubtedly contributed to the difficulties relating to providing the P45 particularly as the complainant’s wife was assigned all of his tax credits. I note that the P45 was eventually given and therefore this complaint is not well founded.

The complainant’s claim for holiday pay is based on his claim that he worked 58 hours per week. He did not receive any additional remuneration for the alleged extra hours worked and again, the fixed nett wage makes it difficult to know whether or not this claim is true. Using his weekly wage for the purposes of calculating holiday he would have been entitled to €374 euros holiday pay for the employment period of 10 weeks and 2 days.   The respondent claims that he received a termination payment in excess of what he was owed, of €491.53 which was in respect of holiday pay. There is nothing in the correspondence to indicate that this payment was for holidays and it may therefore have been in respect of notice or additional hours.   I find this complaint well founded.

In relation to the Public holiday entitlement the position of the respondent is that the complainant got two days off that week. However, he would normally have been entitled to two days off and public holidays are in addition to this. I therefore find this complaint to be well founded and the complainant is entitled to €180 for these days.

The evidence presented in the complaint under the Minimum Notice & Terms of Employment Act, 1973 related to the delay in issuing P45 and P60 and is not well founded.

The complaint under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 is misconceived as the complainant is not in a category of employment covered by that regulation.

Public holidays, terms and conditions,