Complainant

Respondent

Anonymised Parties

Waitress

Licensed Premises Operator

Representatives

Donal O'Sullivan, O'Sullivan Hogan Solicitors

Barry O’Mahony, B.L., instructed by DAS Ireland

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-00026698-001

01/03/2019

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

CA-00026698-002

01/03/2019

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

CA-00026698-003

01/03/2019

The complainant was employed as a waitress in a bar / restaurant business operated by the respondent. The complainant commenced employment with the respondent on 1 August 2017 and worked 19.5 hours per week. A contract was issued to the complainant in 2018. The issues that are the subject of the complaints are in relation to allegations by the complainant that she was paid less than the amount that she was contractually entitled to, that she did not receive full details of her terms of employment as provided for in legislation and that she did not receive breaks as per the relevant legislation.

The complainant’s contract specified that she would be paid the sum of €9.55 per hour with effect from 1 January 2018.

The complainant raised the issue with the respondent but there was a refusal on their part to pay the amount as specified. The respondent offered to pay the amount of the underpayment to charity.

The complainant did not receive full details of her terms of employment as provided for in the Terms of Employment (Information) Act, 1994.

The complainant has, on a number of occasions, worked for periods of 8 to 10 hours without receiving a break.

The complainant’s rate of pay increased with effect from approx. 26 August 2019. The contract issued to the complainant at that time contained an error as to her starting date.

This error does not entitle the complainant to a retrospective payment of the increase.

The complainant was provided with a contract of employment on or around 27 August 2018. The complaint was submitted to the WRC on 1 March 2019 and is therefore in excess of the 6-month period provided in legislation for the lodging of such complaints. Without prejudice to the foregoing, the breach was due to an oversight and was of a trivial nature that did not cause any harm, loss or prejudice to the complainant.

Most of the alleged breaches regarding breaks are statute barred. As regards the substantive issue the complainant is contractually obliged and has been specifically instructed to take her breaks.

Preliminary Issue:

The background to these issues is that the complainant was employed by the respondent as a waitress commencing on 1 August 2017. The complainant’s wage rate at that time was €8.00 per hour and she was paid on a fortnightly basis. No statement of employment was issued to the complainant at that time. On a date that is disputed, at the end of August or early September, the complainant was advised that her wage rate was being increased to €9.55 per hour and she was handed a copy of a statement of employment which specified that rate. The statement also contained a clause which stated that her employment commenced on 1 January 2018. The complainant, on 4 September 2018, wrote to the respondent’s Director as follows:

“Following our conversation today September 4th you gave me the contract to which I return here in, your copy signed.

I greatly appreciate you raising the hourly rate to €9.55 per hour from the 1st January 2018, it goes a long way to showing appreciation for the long hours that I have worked so far this year.

However, I would like to point out that as the contract of employment with the company commenced on January 1st 2018, having reviewed my payslips to date, it seems that there has been a shortfall of €1.55 per hour over the 811 hours worked thus far this year.

I’m sure you will see your way to rectifying this anomaly in the near future”

Subsequent to sending this letter the complainant sought to meet with the Director and ultimately a meeting took place in the workplace on 20 October 2018. The Director explained that there had been a typing error with regard to the complainant’s commencement date. The Director handed the complainant two further statements of employment, one of which detailed the complainant’s rate of pay as €8.00 per hour from 1 September 2017 and the second statement detailed the rate of pay as €9.55 per hour effective from 27 August 2018.   The Director also explained that everyone had been given a pay rise in August.

The complainant referred the matter to her solicitors who wrote to the respondent in this regard.   The Director replied on 28 November 2018 setting out the respondent’s position and in particular refuting that it had been implied that the complainant’s increase would be backdated to 1 January 2018. The Director ended the letter by stating that the respondent would not pay to the complainant the amount requested as an underpayment but, in order to bring closure to the issue, would be willing to pay that amount to a registered charity.   The complainant filed her complaint with the WRC on 1 March 2019.

The respondent raised the issue of the time period provided for by legislation in relation to the reference of complaints to the WRC and argued that both Complaints Nos. CA-00026698-001 and CA-00026698-002 were completely out of time and that most of the specific issues identified in Complaint No. CA-00026698-003 were also out of time. Further submissions in respect of these matters were requested from both parties and these were received subsequent to the hearing.

Section 41(6) of the Workplace Relations Act, 2015, states:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates.

Section 41(8) of the Act states:

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

In their submission on the matter the complainant’s representative states that the main reason for the delay was because the complainant was anxious to resolve the issue internally without recourse to a third party and only lodged her complaint with the WRC when all other options had been exhausted.

As noted above, the complainant lodged her complaint with the WRC on 1 March 2019. Applying the 6-month rule, complaints relating to issues prior to 2 September 2018 are therefore excluded unless the adjudication officer is satisfied that the failure to present the complaint within that time period was due to reasonable cause. The Labour Court has considered the import of the test of reasonable cause in Cementation Skanska v Carroll, DWT0388 as follows:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons that both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must be due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim on time.”

As noted above the main explanation put forward on behalf of the complainant was the desire on her part to resolve the matter internally and to exhaust all options in this regard before referring the complaint to the WRC. Her representative cites a letter sent to the respondent on 13 November 2018 highlighting this desire and expressing the hope that an amicable settlement could be reached on the matter. The respondent replied with the letter rejecting the claim for underpayment but proposing a payment to charity. I note, however, that on 11 January 2019 the complainant’s representative wrote to the respondent’s solicitor advising that instructions have been received from the complainant to refer the matter to the WRC. It is clear therefore that by mid-January 2019 it was accepted that attempts at resolving the matter internally had been exhausted.

The claim contained in Complaint No. CA-00026698 -001 as specified in the complainant’s submission relates to the alleged underpayment of wages for the period from 1 January 2018 to 27 August 2018. The date of the contravention that is the subject of the complaint is outside the period of 6 months in which a complaint can be lodged and the request for an extension of the time period under Section 41(8) of the Workplace Relations Act, 2015, cannot be acceded to as the explanation put forward for the delay does not, in my opinion, satisfy the test of reasonable cause as set out by the Labour Court.

As regards complaint No. CA-00026698-002 which is a complaint under the Terms of Employment (Information) Act, 1994, I note that the first statement of employment given to the complainant was dated and signed by the respondent on 29 August 2018 but that the complainant states that she did not receive same until 4 September 2018. As noted earlier there is a contemporaneous letter from the complainant dated 4 September 2018 which refers to receiving the contract on that day. I therefore accept that that is the date upon which the respondent furnished the complainant with the statement of employment.

Section 3(1) of the Act states:

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 -…..

(e) the date of commencement of the employee’s contract of employment….

It is clear that the respondent did not conform with the requirements of the legislation with regard to the provision of a statement of employment within 2 months of the commencement of employment and that that breach continued into the time period covered by this complaint.

The complainant further states that respondent further breached the legislation by including incorrect information with regard to her date of commencement. This complaint also falls within the time period covered by the complaint.

The final complaint, CA-00026698-003, alleges breaches of the Organisation of Working Time Act, 1997, with regard to the provision of breaks. As per my above finding only breaches which occurred on or after 2 September 2018 can be considered under this complaint.

Complaint No. CA-00026698-001:

I do not have jurisdiction to hear this complaint.

Complaint No. CA-00026698-002:

The respondent was in breach of the requirement to give the complainant a statement of employment within the 2-month time frame set out in legislation in Section 3(1) of the Terms of Employment (Information) Act, 1994.

The respondent accepts that there was also what they term as a technical breach of the legislation due to an oversight but plead that it was of a trivial nature and it did not prejudice the complainant in any manner. It was also pointed out that the respondent subsequently issued the complainant with two further statements that clarified this matter.   I note that the same mistake occurred on a statement issued to another work colleague of the complainant and that person recognised and accepted it as an error. I find therefore that this element of the complaint is well founded but that the complainant did not suffer any detriment in this regard.

Complaint No. CA-00026698-003:

The complainant stated that it was often the case that she was required to work in excess of 6 hours without receiving a break. The requirement to take a break was specified in her contract but in practice the complainant was unable to go on a break during busy periods. It was further pointed out that there was a clocking in / out system in place and that management should have been aware that this breach of legislation was occurring. The respondent stated that not only was the taking of breaks a contractual obligation but that the complainant had attended a staff meeting in January 2019 where it was emphasised that staff were required to take their breaks during their shifts. It was also alleged that records indicated a number of occasions when the complainant did not clock out for breaks as required.

Section 12 of the Organisation of Working Time Act, 1997, states:

(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 in her submission identifies 10 occasions during the relevant period when she did not receive a break while the respondent disputes this. The onus is of course on the employer to ensure that systems are in place to ensure that employees receive their legal entitlements as regards breaks. The respondent’s Director in evidence said that managers had been advised to ensure that staff took their breaks but accepted that there might be days when due to unexpected events this might not happen. On the balance of probabilities, I find that there were days when the complainant did not receive her entitlements as regards breaks and that consequently this complaint is well founded.

Complaint No. CA-00026698-001:

For the reasons outlined above I find that this complaint under the Payment of Wages Act,1991, is outside the 6-month period provided for the submission of such complaints and that therefore I do not have jurisdiction to hear the complaint.

Complaint No. CA-00026698-002:

I find that this complaint under the Terms of Employment (Information) Act, 1994, to be well founded and I order the respondent to pay to the complainant the sum of €1,125.00 as compensation in this regard.

Complaint No. CA-00026698-003:

As set out above I find this complaint under the Terms of Employment (Information) Act, 1997, to be well founded and I order the respondent to pay to the complainant the sum of €300.00 as compensation in this regard.