Complainant

Respondent

Anonymised Parties

Chef

Restaurant

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027250-003

25/03/2019

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

CA-00027250-004

25/03/2019

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

CA-00027250-006

25/03/2019

The complainant was employed as a chef in the respondent’s restaurant commencing on 1 June 2018. The complainant’s employment terminated on 7 October 2018 when the restaurant closed. The complaints arise from issues regarding the terms and conditions of the complainant’s employment and the termination of that employment.

The complainant received no extra pay for working Sundays or Public Holidays.

The complainant received no payment in lieu of notice when his employment was terminated.

The complainant never received a statement of his terms of employment.

There was no appearance on behalf of the respondent.

As noted, there was no appearance at the hearing by any person representing the respondent.

When filling in the complaint form the complainant named the limited company that was his employer as respondent. The complainant also named a person as a director and contact for the respondent.   The complainant stated in evidence that that person was his manager. Prior to the hearing the WRC secretariat received communications from a firm of solicitors representing that named person to the effect that she would not be attending the hearing as she was not a director or secretary of the respondent. A CRO printout in relation to the company was attached which did not include the person’s name as director.

I am satisfied, however, that the respondent is the company named as such by the complainant and that the address given by the complainant in the complaint form and to which the notice was sent is both the business address and the registered address of the respondent. The CRO printout confirms that it is the registered address of the respondent.   The respondent was therefore properly notified of the date and time of the hearing.

According to the evidence of the complainant he never received a contract of employment nor did he receive wage slips. The complainant further stated that he worked every Sunday from 11am to 9pm but that he never received any extra payment in respect of this work. He also said that if he worked a public holiday he would get Tuesday off but would not get paid for that day. The complainant said that in October 2018 he was simply told that the restaurant was closing and that his employment was finishing. The restaurant then re-opened a few days later but the complainant was told that there was no work for him.

Complaint No. CA-00027250-003:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive his entitlements as regards payments for Sunday working or for public holidays.

Section 14(1) of the Act states:

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 so required 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 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.

On the basis of the evidence before me I find this complaint to be well founded.

Section 21(1) of the Act states:

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.

On the basis of the evidence before me I find this complaint to be well founded.

Complaint No. CA-00027250-004:

This is a complaint under the Payment of Wages Act, 1991, to the effect that the complainant did not receive any payment in lieu of notice of the termination of his employment. The Act includes the following definition of “wages”:

any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.

In the case before me the appropriate prior notice due was one week.

On the basis of the evidence before me I find this complaint to be well founded.

Complaint No. CA-00027250-006:

This is a complaint under the Terms of Employment (information) Act, 1994, to the effect that the complainant never received a statement of his terms of employment.   Section 3(1) of the Act provides that an employer shall, not later than 2 months after the commencement of employment of an employee, give to him a statement containing particulars of the terms of the employee’s employment as set out in that section.

On the basis of the evidence before me I find this complaint to be well founded.

Complaint No. CA-00027250-003:

For the reasons outlined above I find this complaint regarding Sunday working and public holiday entitlement to be well founded. I consider that a premium of €30.00 per Sunday for a total of 18 Sundays to be fair and reasonable and that the complainant should also receive payment in respect of two public holidays. Having evaluated the economic loss as €720.00, I am also conscious of the principles set out in the case of Von Colson and Kamann v Land Norheim-Westfallen (1984 ECR1891) to the effect that awards should be a sufficient deterrent against future infractions and I therefore order the respondent to pay to the complainant the sum of €950.00 as compensation in regard to these issues.

Complaint No. CA-00027250-004:

For the reasons outlined above I find this complaint in regard to minimum notice payment to be well founded and I order the respondent to pay to the complainant the sum of €440.00 as compensation in this regard.

Complaint no. CA-00027250-006:

For the reasons stated above I find this complaint in relation to not receiving a statement of the terms of his employment to be well founded and I order the respondent to pay to the complainant the sum of €1,760.00 as compensation in this regard.