ADJ-00009667

Complainant

Respondent

Anonymised Parties

Chef

Restaurant owner

Representatives

Marius Marosan

Did not attend

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-00012612-001

18/07/2017

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

CA-00012612-002

18/07/2017

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

CA-00012612-003

18/07/2017

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

CA-00012612-004

18/07/2017

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

CA-00012612-005

18/07/2017

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

CA-00012612-006

18/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00012612-007

18/07/2017

The complainant commenced employment as a chef with the respondent on 26 July 2016. His gross salary per week was €700. He worked 40 hours a week.

He experienced ongoing difficulties in relation to payment of salary and acknowledgment of statutory entitlement to leave and contact terms.

He terminated his employment on the 19 January 2017.

He submitted his seven complaints to the WRC on 18 July 2017.

CA-00012612-001.Complaint section 7 of the Terms of Employment (Information) Act, 1994

The complainant did not receive his terms of employment in writing. The respondent advised him verbally of some of the terms.

CA-00012612-002.Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant worked on 20 Sundays during the period 26 July 2016 to 19 January 2017. He was advised by his employer that the premium would be €17.50 per hour. He asked the respondent on a number of occasions about this and she advised that she get back to him on it. He never received the payment.

CA-00012612-003.Complaint under section 6 of the Payment of Wages Act, 1991.

In August 2016 the respondent had guaranteed that he would be paid a Christmas bonus of one month’s pay to the amount of €2800.

The respondent failed to pay him the one week’s statutory notice to which he was entitled.

CA-00012612-004.Complaint under section 27 of the Organisation of Working Time Act, 1997.

He did not receive payment for the 5 bank holidays on which he worked and which fell between 26 July 2016 and 19 January 2017.

CA-00012612-005.Complaint under section 27 of the Organisation of Working Time Act, 1997

Complainant worked from 9 am until 1 am the following morning and had to be back in for 9 am that same morning. He did not receive the statutory minimum rest period of 11 hours specified in section 11 of the 1997 Act.

CA-00012612-006. Complaint under section 27 of the Organisation of Working Time Act, 1997

The complainant did not receive his statutory rest breaks.

CA-00012612-007.Complaint under the Industrial Relations Acts.

The complainant contends that he was constructively dismissed. Payment of his salary was constantly delayed. Since October he had been repeatedly asking for salary to be paid to him on the due dates. He requested pay slips and they were declined. The complainant did not receive payment for public holidays. The respondent accused the complainant of taking the recipe book. He denied that he had taken it. She said around Christmas that he was not to return to the restaurant until he returned the recipe book. She used abusive language towards him. The respondent advised him that he was not to contact her if his only enquiries had to do with salary and payments. She hung up the phone on him when he tried to discuss the Christmas bonus which she had guaranteed to him in July 2016.

Loss.

The complainant took up a position on 6 February 2017. He is paid €15 an hour and he works a 38-hour week on average. He states that the difference results in a loss of €217 per week.

I am satisfied that the respondent was duly notified of the details of the hearing. The respondent did not attend. Neither was an adjournment sought. The respondent made no submission in respect of these complaints.

CA-00012612-001.Complaint section 7 of the Terms of Employment (Information) Act, 1994.

The respondent did not attend.

CA-00012612-002.Complaint under section 27 of the Organisation of Working Time Act, 1997.

The respondent did not attend

CA-00012612-003.Complaint under section 6 of the Payment of Wages Act, 1991.

The respondent did not attend.

CA-00012612-004.Complaint under section 27 of the Organisation of Working Time Act, 1997.

The respondent did not attend.

CA-00012612-005.Complaint under section 27 of the Organisation of Working Time Act, 1997

The respondent did not attend.

CA-00012612-006. Complaint under section 27 of the Organisation of Working Time Act, 1997

The respondent did not attend.

CA-00012612-007 Complaint under the Industrial Relations Acts.

The respondent did not attend.

CA-00012612-001.Complaint section 7 of the Terms of Employment (Information) Act, 1994.

Based on the uncontested evidence of the complainant, I find that the respondent breached section    

3(1) of the Act of 1994 in its entirety. I direct the respondent to pay €1,400 (the equivalent of two weeks salary) to the complainant.

CA-00012612-002 Complaint under section 27 of the Organisation of Working Time Act, 1997.

This complaint refers to the non-payment of a Sunday premia on 20 Sundays during the period 26 July 2017 – 19 January 2017. The complaint was lodged on 18 July 2017. The last Sunday on which the complainant was employed was the 12 January 2017. Section41(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 6 months beginning on the date of the contravention to which the complaint relates.”

The complainant did not make a case under subsection 41(8).

I have no jurisdiction to hear this complaint.

CA-00012612-003 Complaint under section 6 of the Payment of Wages Act, 1991.

Failure to pay the complainant a Christmas bonus of €2800. The complainant in his complaint form states that the bonus was payable to him on the 27 January 2017. I notice from his salary slip that he is paid weekly. His evidence at the hearing was that he was paid each Thursday. He stated that he raised the non-payment of the bonus on the 22nd December 2016, the date on which he should have received the bonus. Not receiving it on that date, he expected to receive the bonus on the 13 January 2017. 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 6 months beginning on the date of the contravention to which the complaint relates.”

The complainant has not demonstrated how the scheduled date for payment – the 22 December- has moved out from Christmas to January 27, 2017.

Accordingly, I find that I do not have jurisdiction to hear this element of this complaint.

Failure to pay the complainant a weeks’ notice.

On the basis of the uncontested evidence, I find that the complainant was not paid a weeks’ notice in accordance with section 4(2) (a) of the Minimum Notice and Terms of Employment Act, 1973.

I require the respondent to pay him the sum of €700 which is equal to one week’s wages.

CA-00012612-004. Complaint under section 27 of the Organisation of Working Time Act, 1997

The public Holidays for which the respondent failed to compensate the complainant for having worked were the 1 August,31 October,25 and 26 December 2016 and 1 January 2017.

“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 6 months beginning on the date of the contravention to which the complaint relates.”

I find I do not have jurisdiction to hear this complaint

CA-00012612-005.Complaint under section 27 of the Organisation of Working Time Act, 1997-

The complainant ceased working on 19 January 2017. I find this complaint to be out of time as the last breach that could have occurred was on the 17 January 2017. I do not have jurisdiction to hear this complaint.

CA-00012612-006.Complaint under section 27 of the Organisation of Working Time Act, 1997

I find this complaint to be out of time. I do not have jurisdiction to hear this complaint.

CA-00012612-007.Complaint under the Industrial Relations Acts.

Constructive dismissal is defined in s 1. of the act, as

“The termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee is or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract without giving prior notice of the termination to the employer”.

The burden of proof rests with the complainant in a complaint of constructive dismissal. The tests for constructive dismissal were set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) and repeatedly set out in subsequent complaints of constructive dismissal and described thus:

“conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself discharged from any further performance”.

The reasonable test was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected t put up with it any longer, the employee is justified in leaving”

The proofs which the complainant must advance to prove his case are that the behaviour of the respondent and of which he complains corresponds with the requirements laid out in one or both of the two tests and was behaviour which left him with no option other than resignation

Did the respondent’s behaviour meet the threshold of behaviour so intolerable as to conclude that resignation was the only option?

The Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: in considering the ‘reasonableness test’ stated

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

On the basis of the uncontested evidence, I consider the refusal to pay wages on the due date, the failure to honour a guarantee to pay a bonus, the absence of breaks, the abusive language are instances of unreasonable conduct. The complainant did not have terms of employment nor a grievance procedure- the use of which would usually be a prerequisite to succeeding in a complaint of constructive dismissal. His uncontested evidence is that when he tried to contact the respondent by phone to discuss his complaints with her, she put down the phone or was abusive and refused to engage with his grievances.

I find that the conduct of the employer was such that the complainant was justified in tendering his resignation. I find that his resignation satisfies the requirements of the “reasonableness test’. I find that he was unfairly dismissed.

I recommend that the respondent should pay him the sum of €1400 which is equal to two weeks salary.

CA-00012612-001.Complaint section 7 of the Terms of Employment (Information) Act, 1994.

I find the complaint to be well founded. I require the respondent to pay the complainant the sum of €1400.

CA-00012612-002.Complaint under section 27 of the Organisation of Working Time Act, 1997.

I have no jurisdiction to hear this complaint.

CA-00012612-003.Complaint under section 6 of the Payment of Wages Act, 1991.

I find the complaint of non -payment of notice to be well founded. I require the respondent to pay the complaint at the sum of €700 which is equal to one weeks’ notice subject to all lawful deductions.

CA-00012612-004.Complaint under section 27 of the Organisation of Working Time Act, 1997.

I do not have jurisdiction to hear this complaint

CA-00012612-005.Complaint under section 27 of the Organisation of Working Time Act, 1997

I do not have jurisdiction to hear this complaint.

CA-00012612-006.Complaint under section 27 of the Organisation of Working Time Act, 1997

I do not have jurisdiction to hear this complaint.

CA-00012612-007 Complaint under the Industrial Relations.

I find that the complainant was unfairly dismissed. I recommend that the respondent pay him €1,400.

Terms of Employment; statutory rest periods; constructive dismissal.