ADJ-00015420

Complainant

Respondent

Anonymised Parties

A Pizza Chef

Mr A & Mr B T/A Restaurant

Representatives

Hogan Dowling McNamara Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00020226-001

25/06/2018

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

CA-00020226-002

25/06/2018

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

CA-00020226-003

25/06/2018

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

CA-00020226-004

25/06/2018

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

CA-00020226-005

25/06/2018

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

CA-00020226-007

25/06/2018

The Complainant referred his claims to the Workplace Relations Commission on 25th June 2018.

This complaint was heard in conjunction with ADJ-00015424 and ADJ-00015417. Substantially, the same matters are complained of in all sets of proceedings. However, the Respondent in ADJ-00015417 is named as Mr A T/A Restaurant and in ADJ-00015424 as Restaurant Limited.

There was no appearance by or on behalf of the Respondent. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing. Having been satisfied of this, I waited some time to accommodate a late arrival. The Respondent did not engage with the WRC at any stage prior to the hearing, did not apply for a postponement and did not indicate any difficulties attending the hearing.

The Complainant submitted that at the time of the referral of his claims to the WRC he named three respondents, Mr A T/A Restaurant, Mr B T/A Restaurant and Restaurant Limited. At the hearing the Complainant submitted that Restaurant Limited was not in existence at the material time and was registered as a company as of 10th April 2018. The Complainant submitted that the correct Respondent is Mr A & Mr B T/A Restaurant and made an application to amend the name of the Respondent accordingly.

There was no attendance by or on behalf of the Respondent.

The Complainant referred his claims against three respondents. At the hearing, the Complainant acknowledged that one of the respondents named by him, Restaurant Limited was not in existence at the material time. Therefore, it has no liability in respect of his claims. The Complainant submitted that he under the heading “Respondent Details – Name/Company”, the Complainant entered separately Mr A T/A Restaurant (ADJ-00015417) and Mr B T/A Restaurant (ADJ-00015420). However, the Complainant submitted that the correct Respondent in this case is Mr A and Mr B T/A Restaurant and made an application to amend the name accordingly.

Section 39 of the Organisation of Working Time Act, 1997 applies to the statutes tabulated therein which include the statutes subject to these complaints. In relation to misstatement of an employer’s name when an applicable complaint still at hearing stage, Section 39(4) of the same Act provides:

“If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment or statutory instrument referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment or statutory instrument in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and- (a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent’s name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and (b) the said misstatement was due to inadvertence,

then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment or statutory instrument and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment or statutory instrument within which such proceedings may be instituted has expired:

Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.”

This provides for the granting of leave to a party to pursue the correct employer in respect of complaints under the statutes tabulated therein. The High Court Judgement in Capital Food Emporium (Holdings) Limited -v- Walsh & Others (2016) IEHC 725 at Paragraph 24 provides a useful analysis of the mechanics of Section 39 of the Organisation of Working Time Act 1997. In that case, no issue had been taken with the correct legal title of the employer until enforcement stage when the named respondent instituted Judicial Review proceedings asserting that it had been incorrectly named. In relation to Section 39(4), Mr Justice Barrett stated: “s.39(4) deals with a situation, irrelevant to the within proceedings, whereby the name of a party was inadvertently mis-stated and, as a consequence, the party that ought to have been pursued was not heard. The within application does not concern a situation in which a party that ought to have been pursued was not given an opportunity to be heard. It concerns a situation in which a party that ought to have been pursued was fully aware of the proceedings, acknowledged and accepted that it was the party concerned, and – so the Rights Commissioner found on 2nd August, 2012 – was given an opportunity to be heard.”

Therefore, and regardless of the precise wording of the employer’s name on the complaint form, once an Adjudication Officer is satisfied that the correct employer has been pursued and has been given an opportunity to be heard, then there can be no question as to jurisdiction.

I am satisfied that both, Mr A and Mr B were notified of the details of the Complainant’s claim, copy of which was sent to both on 10th July 2018. I am also satisfied that both were notified of the date, time and location of the hearing by letters issued on 24th July 2018 and 30th July 2018.

I am also guided by the observations of Mr Justice Walsh of the Supreme Court in Halal Meatpackers (Ballyhaunis) -v- EAT 1990 ILRM 293 (as endorsed by the EAT in Rahman -v- Munster Joinery UD2377/2011) to the effect that the EAT (now replaced by the WRC) was intended to be informal in nature and to relieve parties of the undue formality and technicalities associated with Courts. I am also cognisant that the Complainant was disadvantaged by the fact that he was never furnished with a contract of employment containing the Respondent’s legal name and nor did he receive payslips disclosing same. Declining jurisdiction in these circumstances would certainly amount to a “grossly disproportionate response”.

For the aforesaid reasons, I also consider the misstatement of the Respondent’s name to be no more than a clerical or administrative error and there is no requirement to invoke Section 39(4) of the Organisation of Working Time Act 1997, requiring the grant of leave to institute these complaints against the correct employer. As with any amendment to the parties’ details of such a nature, the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title.

Having considered all of the surrounding circumstances, I am fully satisfied that the Complainant’s employer was fully on notice of these complaints and dispute and was afforded every opportunity to be heard. I am satisfied that both Mr A and Mr B were on notice of the Complainant’s claims. They were aware from the commencement of these proceedings that both were named as respondents. I am satisfied given all of the circumstances of the present case that they would be neither inconvenienced nor they would suffer prejudice by the modification of the WRC form and that the said modification does not alter the nature of the claim before the hearing. Accordingly, I find that the Complainant’s claims are a matter to be addressed jointly to Mr A and Mr B T/A Restaurant.

In the view of my findings above I find that Mr A and Mr B T/A Restaurant is the correct Respondent.

The Complainant submits that he commenced his employment with the Respondent on 28th February 2018. He didn’t receive his pay from the time he started his employment. The Complainant submits that the dispute over the failure to pay his wages led to the Complainant being assaulted on 30th April 2018. The Complainant submits that from 28th February to 16th March 2018 he worked 170 hours in the restaurant and 84 hours distributing restaurant’s leaflets. He submits that from 17th March to 29th April 2018 he worked 79 hours a week in the restaurant. In total, the Complainant submits he has worked 738 hours. The Complainant claims that at the rate of €9.55 he is due €7,047.90

There was no attendance by or on behalf of the Respondent.

Section 23 of the National Minimum Wage Act, 2000 provides:

“(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12 month period immediately preceding the request.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of [Schedule 1],

(b) the working hours of the employee calculated in accordance with section 8,

(c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and

(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.”

Section 24 of the Act - Disputes about entitlement to minimum hourly rate of pay stipulates:

(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.

(2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information, and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

I note that in his Complaint Form received by the WRC on the 25th June 2018 the Complainant stated that he has not requested a statement of average hourly rate of pay from his employer. However, at hearing the Complainant submitted that the request was sent to the Respondent on the day the Complainant’s claim was referred to the WRC. The Complainant exhibited copy of a letter dated 25th June 2018 in support of his statement.

Section 24(2)(a) of the Act provides that a dispute cannot be referred to an Adjudication Officer under the Act unless an employee has received a statement pursuant to Section 23, or having requested such a statement the employer has failed to provide the statement within the period of four weeks.

I find that the Complainant referred his claim to the WRC before the time limit provided for by the Act for the employer to supply the information has elapsed. Therefore, I find that I have no jurisdiction to deal with the matter.   In Mansion House Ltd v Izquierdo MWD 3/2004, the Labour Court held that, where a claimant had failed to request a statement in accordance with s.23(1) of the Act, the “appropriate course of action” was for the rights commissioner to decline jurisdiction without prejudice to the claimant's right to re-enter the same complaint having complied with the said subsection. It was the Labour Court's view that a decision dismissing the claim on its merits on the basis of non-compliance with s.23(1) was neither “appropriate nor is it warranted by any provision of the Act”.

For the reasons set out above, I declare that I do not have jurisdiction to hear this complaint without prejudice to the claimant's right to re-enter the same complaint having complied with Section 23 of the Act.

The Complainant submits that he was required to work more than the maximum permitted number of hours. The Complainant submits that during the period from 28th February to 16th March 2018 he worked in total 170 hours in the restaurant and 84 hours distributing the restaurant’s leaflets. The Complainant submits that from 17th March 2018 to 29th Aril 2018 he worked 79 hours a week. The Complainant submits that in total during the period from 28th February 2018 to 29th April 2018 he worked 738 hours.

There was no attendance by or on behalf of the Respondent.

Section 15 of the Organisation of Working Time Act provides: “Weekly Working Hours

(1) An employer must 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”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph [3, points (a) to (e)] of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.”

Based on the uncontested evidence of the Complaint I find that the Complainant worked in excess of the hours permitted by the Act.

On the uncontested evidence of the Complainant I declare this complaint well founded. Taking all the circumstance of the case into account I direct the Respondent to pay the Complainant compensation of €1,000 for breach of the Organisation of Working Time Act, 1997.

The Complainant submits that he did not receive a statement in writing of his terms of employment.

There was no attendance by or on behalf of the Respondent.

Section 3(1) of the Terms of Employment (Information)Act, 1994 stipulates that “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…”

On the uncontested evidence of the Complainant I find that the Complainant was not provided with a written statement of Terms and Conditions of Employment as per Section 3 of the Act. The Respondent has breached Section 3 of the Act.

Based on the uncontested evidence of the Complainant I declare this complaint well-founded. I direct the Respondent to pay the Complainant compensation of €1,000 for breach of the Act.

The Complainant submits that he did not receive any holidays or any holiday pay. The Complainant claims that he is owed €563.83 gross in respect of annual leave. He calculated this amount as 8% of the hours he has worked.

There was no attendance by or on behalf of the Respondent.

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

a)      4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

b)      one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

c)       8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

The Complainant worked for the Respondent from 28th February until 29th April 2018 and worked in total 738 in that period. The Complainant claims that he is entitled to 8% of the hours he worked in respect of his annual leave entitlement. I find that the Complainant can only recover his annual leave entitlements based on the hours he was permitted to work under the Act. Consequently, the Complainant’s annual leave entitlement is calculated on the basis of 48 hours working week. The Complainant was employed for some 8.5 weeks and therefore 8% of the hours legally worked by the Complainant would be approximately 32.64 hours.

Based on the uncontested evidence of the Complainant I declare this complaint well-founded. I direct the Respondent to pay the Complainant €311.71 for the economic loss in respect of the annual leave. In addition I require the Respondent to pay the Complainant an additional €500 in compensation for breach of his rights under Section 19 of the Act.

The Complainant submits that he did not get paid for working on Sundays. The Complainant submits that he worked 9 Sundays in the period of his employment, 13 hours on each occasion. The Complainant claims that he is due €372.45. His calculations are based on the premium of 1/3 of normal pay.

There was no attendance by or on behalf of the Respondent.

Section 14 of the Organisation of Working Time Act, 1997 provides as follows: (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.

In Park House Hotel Ltd. v Wlodarczyk DWT 24/2016, the Labour Court said that what was intended by this section was that a worker who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive if they were not so obliged. In Viking Security Ltd v Valent DWT 89/2014, the Labour Court held that it could only be satisfied that an employee had obtained his or her entitlements under this section “where the element of compensation for the obligation to work on Sunday is clearly discernible from the contract of employment or from the circumstances surrounding its conclusion”.

Based on the uncontested evidence of the Complainant I find that he did not receive a premium for work performed on Sundays.

Based on the uncontested evidence of the Complainant I declare this complaint well-founded. I direct the Respondent to pay the Complainant €500 in compensation for breach of Section 14 of the Act.

The Complainant submits that he did not receive his public holiday entitlements. The Complainant submits that there were two public holidays during the period of his employment, 17th March and 2nd April 2018. He claims that he worked 12 hours on each occasion.

There was no attendance by or on behalf of the Respondent.

Sec 21 (1) of the Organisation of Working Time Act on “entitlement in respect of Public Holidays” states “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.

Reg 5 of Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997

S.I. No. 475 of 1997 stipulates:

(2) If the employee concerned (not being an employee to whom paragraphs (a), (b) and (c) of Regulation 6 of these Regulations apply) does not work on a day which is a public holiday, then—

(a) in the case the employee's pay is calculated wholly by reference to any of the matters referred to in Regulation 3(2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to one-fifth of the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid in respect of the normal weekly hours last worked by the employee before that public holiday,

(b) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to one-fifth of the average weekly pay (excluding any pay for overtime) of the employee calculated over—

(i) the period of 13 weeks ending immediately before that public holiday, or

(ii) if no time was worked by the employee during that period, the period of 13 weeks ending on the day on which time was last worked by the employee before that public holiday.

Provided that the relevant rate to which the employee concerned shall be entitled under this paragraph in respect of a public holiday shall not exceed the relevant rate to which he or she would be entitled in respect of that holiday if subparagraph (a) or (b), as the case may be, of paragraph (1) of this Regulation were to apply to him or her.

Based on the uncontested evidence of the Complainant I find this complaint well-founded. I find that there were two public holidays during the period of my investigation, 17th March and 2nd April 2018. I find that he Complainant worked on both occasions.

Based on the uncontested evidence presented at the hearing I find the complaint well- founded.

I require the Respondent to pay the Complainant compensation of €500.00 for a breach of Section 21 of the Act.

Minimum wage- public holidays- annual leave- Sunday premium