Complainant

Respondent

Anonymised Parties

A Barman

A Bar and Restaurant Business

Representatives

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-00020548-001

14/07/2018

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

CA-00020548-002

14/07/2018

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

CA-00020548-003

14/07/2018

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

CA-00020548-004

14/07/2018

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

CA-00020548-006

14/07/2018

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

CA-00020550-001

14/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Act 1979

CA-00020550-002

14/07/2018

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

CA-00020550-003

14/07/2018

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

CA-00020550-004

14/07/2018

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

CA-00020550-006

14/07/2018

The complainant commenced employment with the respondent on May 2nd 2018. He accepted a job as a senior barman on an hourly rate of €13.31. One week into his employment, he said the owner told him that he was a manager, although the rate of pay remained at €13.31. He was dismissed after just eight weeks because he complained about difficulties he experienced while working for the respondent. He also complained that he did not get a statement setting out the terms and conditions of his employment. He also said he was not given his entitlements under the Organisation of Working Time Act in respect of public holidays and Sundays.

At the hearing, the complainant said that wages were paid on Fridays, although he didn’t always get a payslip. From June 12th to 17th, he said that he worked a total of 54 hours.   The following week, he was in Spain at a friend’s wedding and he expected his wages for 54 hours to be paid into his bank. His wages were due to be paid on June 22nd and on the 20th, he sent a message to his employer, to let him know that he was due to be paid for 54 hours.   He got no reply and on June 22nd, his wages were not paid into his account.

Around 4.30pm on June 22nd, the complainant got a message from his employer apologising for not transferring his wages to his bank account. On June 25th, €350 was transferred to his account, but he was due to be paid €718.74. When he went to work on Friday, June 29th, he was given a further €120 in cash.   The total shortfall in his wages for that week was €248.74. When he questioned the shortage, he was told that the accountant calculated that he was due to be paid for 34 hours. He disputes this and claims that he worked for 54 hours.

The respondent did not attend the hearing.

Based on the uncontested evidence of the complainant, I find that he was left short of wages in the amount of €248.74, related to hours he worked during the week ending on Sunday, June 17th.

This complaint under Section 6 of the Payment of Wages Act 1991 is upheld and I decide that the respondent is to pay the complainant compensation of €597.48 gross, twice the amount that he was left short in his wages for the week ending on Sunday, June 17th 2018.

On June 26th 2018, the complainant sent an e mail to his employer in which he set out his grievances about his job. He was annoyed that he had agreed to a salary for a senior barman but he was expected to work as a manager. He worked 16 hour shifts on Saturdays with no break and no satisfactory meal. As a bar manager, the complainant was asked to make a list of stock to be ordered, but the owner never ordered the stock. He took on the role of floor supervisor to mitigate the poor supervisory skills of another staff member. Finally, he consistently had to ask for payslips.

When he was not paid his full wages on Friday, June 29th, the complainant said that he decided to leave his job. He informed the owner that he was leaving, but he said that the owner asked him to stay on and he agreed. Then on Monday, July 2nd, the complainant said that he got a message from the owner who told him that he had re-considered and that he wasn’t needed.   He said he had another barman coming in for a trial. He worked until Monday, July 2nd, which was his last day. The complainant said that he had taken back his resignation as they had reached an agreement that he would stay on. He said that he told his employer that he was now being “sacked.”

The complainant’s case is that he was dismissed because he complained to his employer and asked him to resolve these issues.

The respondent did not attend the hearing.

From the complainant’s evidence, the way his employment was terminated appears to have been in retaliation for him attempting to assert his rights. It seems to me that he was penalised when he sought to regularise his employment and to persuade his employer to introduce some element of fairness and compliance into the working relationship. In this respect, I find that his dismissal was entirely unfair.

I have concluded that the complainant was dismissed unfairly. I therefore recommend that the respondent should pay compensation of two weeks’ gross pay, based on a working week of 54 hours, a sum equivalent to €1,438.

The complainant said that he did not receive a statement setting out his terms and conditions of employment. When he met the respondent as part of his interview, he said he asked for a contract and that it was agreed that he would get one. When he commenced on May 2nd, he again asked for a contract, but none was provided.

The respondent did not attend the hearing.

Section 3 of the Terms of Employment (Information) Act provides that, within two months of the commencement of an employee’s employment, they should receive a written statement setting out their terms and conditions of employment.   Generally written up in the form of a contract, these statements are to include the following:

(a) The name of the employer and the employee;

(b) The address of the employer;

(c) The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(d) The job title or the nature of the work that the employee is required to carry out;

(e) The date that the employee commences in the job;

(f) If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;

(g) The rate or method of calculation of the employee’s pay;

(h) The frequency of pay;

(i) Any terms or conditions relating to hours of work (including overtime);

(j) Any 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;

       (ii) pensions and pension schemes;

(l) The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;

(m) Details of any collective agreement which affects the employee’s terms and conditions of employment.

The complainant’s evidence is that he did not receive a statement of his terms and conditions of employment, despite asking for one.

From the evidence of the complainant, it is apparent that the respondent in this case ignored his legal responsibilities to this employee with regard to his entitlement to a written statement setting out his terms and conditions of employment.   The effect of not doing so is to tarnish the employment relationship with uncertainty and to make it difficult for the employee to assert his rights during, and at the termination of his employment. This is precisely what the enactment of the Terms of Employment (Information) Act 1994 is intended to avoid.

As he worked for the respondent for just over two months, the duration of the illegality in respect of his complaint was short. I decide that the respondent is to pay the complainant compensation of €532.40, equivalent to 40 hours’ pay.

During his employment with the respondent, the complainant worked on Monday, May 7th 2018.   He said that he did not receive any additional payment for working on the public holiday.  

The respondent did not attend the hearing.

Section 21(1) of the Organisation of Working Time Act 1994, provides that,

“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.”

As there is no mystery to this provision, and no exception to its application, it is entirely unacceptable for an employer to not pay an employee his or her entitlement to public holiday pay – which is double the standard rate of pay. Alternatively, the employer may permit an employee to take an additional paid day off in lieu of the public holiday. From the evidence of the complainant in this case, he did not get an extra day’s pay and he did not get an extra paid day off.  

I find that the respondent is in breach of section 21(1) of the Organisation of Working Time Act 1997 and I conclude that this complaint is well founded.

As I have concluded that this complaint under the Organisation of Working Time Act is well founded, I decide that the respondent is to pay the complainant compensation of €532.40, equivalent to 40 hours’ pay.

This is a complaint that the respondent paid the complainant the standard hourly rate of pay for working on Sundays.

The respondent did not attend the hearing.

From my enquiries at the hearing of this complaint and from the payslips submitted in evidence by the complainant, it appears that he worked in the bar for about six Sundays, without being paid a Sunday allowance.

In respect of Sunday working, section 14(1) of the Organisation of Working Time Act provides that, “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.”

While it is apparent that there was no contract in place to fix the rate of pay for Sunday working, and no other form of policy or agreement, it is a legal requirement for employers to pay “such an amount as is reasonable” for Sunday working. Having considered this matter, and having explored the practice in the hospitality industry, it is my view that a reasonable amount is time plus one half.

I have concluded that the complainant was not paid a Sunday premium, to which he was entitled under the Organisation of Working Time Act. As I have found that he worked on approximately six Sundays, I decide that the respondent is to pay him compensation of €270, equivalent to three days’ pay.

CA-00020548-001: €597.48           Reason: Failure to pay the correct hourly rate and overtime

CA-00020548-002: €1,438.00       Reason: Failure to pay holiday pay

CA-00020548-003: €532.40           Reason: Failure to issue a statement of terms of employment

CA-00020548-004: €532.40           Reason: Failure to issue a statement of terms of employment

CA-00020548-006: €270.00           Reason: Failure to issue a statement of terms of employment

Total award:             €3,270.28

Payment of wages, Sunday working, pay for public holidays, statement of terms and conditions of employment