ADJ-00020049

Complainant

Respondent

Anonymised Parties

Chef

Hotel

Representatives

  Self

John Forde,Human Resources Consultant

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-00026495-001

24/02/2019

The complainant commenced employment with the respondent on 28 May 2018 working 25 hours per week as a Breakfast Chef.  The complaint is in relation to the correct rate of pay which the complainant claims was due to be paid to him in accordance with his contract.

The complainant commenced employment with the respondent on a 3-month trial period.

The complainant’s contract provided for an increase in his rate of pay upon successfully concluding the trial period.

The respondent has failed to implement the pay increase despite numerous requests from the complainant in this regard.

The respondent was unaware of the details of the agreement which the complainant states that he had entered into with the then Head Chef as no record existed of same.

At a meeting held in March 2019 the respondent accepted the complainant’s arguments and consequently the complainant’s hourly rate was increased, and a retrospective payment made to the date the complainant finished his probationary trial.

The complainant then claimed that the agreement provided for the payment of the increase to be back-dated to his commencement date and it was agreed that this be paid subject to the complainant withdrawing his complaint to the WRC. 

The complainant received this payment but did not withdraw the complaint.

The complainant included with his submission to the WRC a copy of his contract which is signed both by the complainant himself and by the respondent’s Operations Manager.  The signatures were dated, that of the Manager on 16 September 2018 and that of the complainant on 17 September 2018.  The relevant clause is entitled “Salary” and states as follows:

Your rate of pay on commencement will be €11.05 per hour, with €0.45 per hour added to all hours worked to give a total of €11.50 per hour.  This amount will take account of unsocial hours worked and includes Sunday Premium.

You will be paid in two weeks arrears accompanied by a payslip on the last Friday of the week.  You will be paid by credit transfer directly to your Bank / Building Society account.

The respondent states in their submission that there was no knowledge by them of the agreement reached by their then Head Chef / Manager thus giving the impression that there was no written record in that regard.  I find this difficult to understand given the existence of this statement of the complainant’s terms and conditions.  I accept that there is nothing in the document regarding a 3-month trial period and the consequent adjustment of salary but, as set out above, the clause dealing with salary actually provided for the payment of €11.50 per hour from the commencement of employment.  The respondent’s evidence on this point was that the respondent at that time was a relatively new organisation and that this contract had not been issued on time and contained an incorrect rate of pay.  For his part the complainant’s evidence was that he had brought the matter to the attention of the management verbally on a number of occasions without success and that finally in February 2019 he had made a formal written request for payment.  The response was an email which seemed to suggest that the rate specified in the contract was incorrect. Following that the complainant referred the issue to the WRC where the complaint was received on 24 February 2019.

A meeting then took place between the complainant and the Operations Manager.  The complainant said in evidence that there was a suggestion that he would in future receive the increased rate of pay and that the complainant then informed the Manager that he had referred the issue to the WRC.  The result was that the complainant was informed on 9 March 2019 that the increase would be implemented and that he would receive a back-payment of the differential calculated from 28 August 2018, the date he had completed his 3-month trial.  This back-payment amounted to €721.26 and this, along with the pay increase, was paid to the complainant at that time.

The complainant indicated that he was unhappy as the agreement that he had was that he would receive payment of the differential for the first 3 months of employment as well.  A further meeting then took place and the respondent’s evidence was that there was agreement to pay this further differential on the understanding that the complainant would withdraw his complaint from the WRC.  This further back-payment amounted to €644.64 and was paid the following week.  In total therefore the complainant received payment of the differential of €1.50 per hour for a total of 910.6 hours which amounted to €1,365.90 in payments.

The complainant obviously did not withdraw his agreement.  At the hearing the complainant raised a number of issues including being transferred to another hotel operated by the respondent and consequent reduction in hours, a dispute about working on St. Patrick’s Day and a subsequent payslip on which his basic pay reverted to €10.00 per hour (an administrative error according to the respondent), all of which led to his decision to resign from his position with the respondent at the end of March 2019.  It was pointed out to the complainant that these matters occurred after the complaint which was the subject of the hearing had been lodged with the WRC and consequently the adjudication officer was precluded from any consideration of same.

It also has to be said that the response of the respondent to the complaint also took place after the referral of the complaint to the WRC. 

Section 5(6) of the Payment of Wages Act, 1991, states:

Where –

(a)    the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b)    none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except as in so far as the deficiency or non-payment is attributable to an error in computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

From the evidence before me it is clear that the respondent had a contractual obligation to pay the complainant at the rate of €11.50 per hour from the commencement of employment.  It is also clear that at the date that the complaint was filed with the WRC the complainant was in receipt of a payment of €10.00 per hour.  I therefore must find that the complaint is well founded.

Complaint No. CA-00026495-001:

For the reasons set out above I find this complaint to be well founded.  From the evidence before me I note that subsequent to the complaint being filed with the WRC the respondent engaged with the complainant which resulted in payments being made in respect of the differential amount which is the subject of the complaint.  In his submission the complainant claimed that he was due €1,350.00 but did not provide any detailed breakdown as to how he arrived at this figure.  The respondent for their part detailed their calculations as follows:

Gross pay for 28 May 2018 to 28 August 2018     €4,298.00 (429.80 hours @ €10.00)

Gross pay for 28 August to 31 December 2018     €3,557.60 (355.76 hours @ €10.00)

Gross pay for 31 December 2018 to week 9           €1,250.40 (125.04 hours @ €10.00)

TOTAL                                                                             €9,106.00 = 910.6 hours

910.6 x €1.50 = €1,365.90

Paid Week 10:  €721.26 (payslip dated 7 March 2019)

Paid Week 11:  €644.64 (payslip dated 14 March 2019)

I therefore find that the complainant has received from the respondent the amount due to him which was the subject of this complaint and that no further direction is required from me in that regard.