Complainant

Respondent

Parties

Complainant

Respondent

Anonymised Parties

{A Chef}

{A Pizza Parlour}

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-00020132-001

02/07/2018

The Complainant is a non-national and worked as chef for a pizza parlour when he first arrived in Dublin in July 2017. He was told he would be paid 10 euro per hour and had lodgings which cost 300 euro per month which was deducted from his wages.

The Complainant claims that he was employed with the Respondent from 10 July 2017. His contract of employment states he commenced on 1 September 2017.The Complainant says he did not receive any payslips.  The Respondent’s first payslip is dated 11th September 2017.

The Complainant set up a bank account for payment of his wages on 23 October 2017. He was due 10 euro per hour for a 40 hour week in his contract but this was not paid. The payslips show a weekly wage of 400 euro gross per week net of tax 325.08 euro. He says he is due 12,723.00 euro and has only received 7,443.00 euro.

His bank statements show a sum of 6,443 euro net wages, gross 7,927.89 received from 2 November 2017 to May 2018. He claims an estimated shortfall of 5,280 euro gross plus holidays of 1,052.00. He was not paid for bank holidays.

The Complainant says he worked 63.5 hours per week which is disputed. He says he starts 2 hours before the restaurant opens at 5pm to start preparations. At 10.30pm the last order is received and then he prepares to shut down the kitchen.

The Respondent asked him to sign a blank sheet about his hours which he did for the first number of months. However, after Christmas until he left on 13th May 2018 he refused to do this.

The Respondent says the Complainant started work on 28th August 2017 not July. He worked 40 hours per week from 4.30pm to 11pm and 4.30pm to 12 pm on Saturday and Sundays with one 30 minute break. The restaurant opens from 5-11pm daily.

The Respondent has a signed contract of employment confirming the Complainant commenced employment on 1 September 2017 at a rate of 10 euro per hour for 40 hours per week.

The Respondent says the Complainant was employed from 28 August 2017 to 1 May 2018. This is 35.5 weeks which is a total gross wages of 14,200 euro and net wages of 11, 540.34 euro. Rent was charged at 300 euro per month.

The Respondent produced payslips for the hearing showing the hourly rate paid is 10 euro per hour.

The Respondent provided documentation confirming the hours worked from September to December 2017. The weekly time sheets were not signed by the Complainant after December. The Complainant was receiving around 13 euro per hour.

The Respondent disputes the 63.5 hours worked by the Complainant. The restaurant opens at 5pm every day and closes at 11pm during the week, 12pm on Saturday and Sunday. The Complainant received a 30 minute unpaid break every day. There was no need for him to be at work 2 hours before the restaurant opened.

The Respondent paid 500 euro towards holiday pay and there is 328.13 owed which they will pay.

I have listened carefully to the evidence of the parties at the hearing on 27th September 2018 and 29th November 2018 and considered the written submissions.

The Complainant is a non-national and worked as chef for a pizza parlour when he first arrived in Dublin in August 2017. He signed a contract of employment with a commencement date of 1 September 2017 at a rate of 10 euro per hour for a 40 hour week. He was given a room in the Respondent’s house which he rented at a cost of 300 euro per month. There is no written agreement signed between the parties in relation to the cost of boarding and authorising deduction of this from the Complainant’s wages in accordance with S5 of the Payment of Wages Act 1991.

This complaint was made on 2nd July 2018. The Complainant ceased employment with the Respondent on a date which is disputed between 1 May 2018 and 13 May 2018.

S41 (6) of the Workplace Relations Act 2015 provides that the complaint shall not be entertained if presented after 6 months beginning on the date of contravention to which the complaint relates. S41 ( 8) An adjudication officer may entertain a complaint after the expiration of the period 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.

The Complainant is a non-national who has restricted English and is not familiar with the Irish legal system. I find there is reasonable cause to extend the time for a further 6 months in the circumstances.

The Respondent has a signed copy of the Complainant’s contract of employment specifying a commencement date of 1st September 2017 at a rate of 10 euro per hour for a 40 hour week.  The Respondent says the Complainant commenced employment on 28 August 2017. The Complainant says he was initially paid in cash by the Respondent. The first payslip is dated 11th September 2017.  The Complainant set up a bank account for payment of his wages on 23 October 2017. The payslips show a weekly wage of 400 euro gross per week net of tax 325.08 euro.

The Respondent says the Complainant was employed from 28 August 2017 to 1 May 2018. The Complainant disputes this and says he was employed from July until 13 May 2018. I accept the Respondent’s evidence of a commencement date of 28 August 2017 in light of the signed contract of employment. I accept the Complainant’s evidence that he was employed until 13 May 2018 which is 37 weeks. The Complainant’s bank statements show a sum of 6,443 euro net wages, gross 7,927.89 received from 2 November 2017 to 13 May 2018 which is 26 weeks. Gross salary for 26 weeks at 400 euro per week is 10,400 euro net 8,452.08 euro.

Gross salary for 37 weeks is 14,800, net 12,027.96 euro. The Complainant says he has only received 7,443 euro net which is 9,160 euro gross approximately.

The Complainant was paid just above the minimum wage at the time when the National Minimum Wage Order 2017 SI 440/2017 applied. Minimum wage for employees from 1 January 2018 is 9.55 euro per hour. The amount that can be taken into account for boarding of an employee under the National Minimum Wage Order is 0.85 euro per hour which is 34 euro per week.  The Complainant confirmed that he rented a room in the Respondent’s house. I am taking the statutory deduction applicable for employees boarding under the National Minimum Wage Order 2017 SI 440/2017 as a guide and I will use this figure to take into account the accommodation given which forms part of the Complainant’s overall pay. For 37 weeks this amounts to 1,258.00 euro.

Taking into account 9,160 euro gross paid and credit for accommodation of 1,258 euro, the shortfall of payment to the Complainant for of wages due for this period is 4,382.00 euro gross. I find this complaint to be well founded in light of the evidence adduced.

There are 5 bank holidays of 400 euro gross during this period and there is no evidence of payment of these. In addition, the Complainant is entitled to statutory holiday pay for 8.5 months which is paid pro-rata for time worked in accordance with S19 of the Organisation of Working Time Act 1997. This amounts to 14.2 days which is 5,680 euro gross. The Labour Court has ruled that the working week can only be construed as referring to the number of days or hours encompassing each work cycle ie in this case 40 hours in Irish Ferries v Seamen’s Union of Ireland DWT35/2001.

The Complainant claims that he worked 63.5 hours per week. He initially signed sheets confirming his work hours were 40 per week but refused to do so after December 2017.

The onus is on an employer to keep records of an employees working hours in the form required accordance with S25(3) of the Organisation of Working Time Act 1997. The Complainant claims that he signed blank forms up to December 2017. For the period August to December 2017 the Respondent has produced records evidencing compliance with the Organisation of Working Time Act 1997. In Rezmerita Ltd v K Uchiechowska DWT 1010 the Labour Court noted that “Where statutory records are not maintained the employer is faced with the burden of rebutting what is in effect a presumption of non-compliance”. The Respondent has failed to produce records in accordance with the Act and accordingly has failed to discharge the burden under the Act.

S15 of the Organisation of Working Time Act 1997 provides:

“S15 (1) an employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereinafter in this section referred to as a “reference period”) that does not exceed-

(a)          4 months, or-

(b)          6 months-

(c)           …………………….”

The Complainant claims that he has consistently worked 63.5 hours per week. This is disputed by the Respondent who says that the restaurant operates from 5 to 11pm every evening, to 12pm on Saturday and Sunday. The Respondent says 2 hours preparation for opening and clean up is not required.

The maximum lawful hourly working week is 48 hours. I find this complaint is well founded in the absence of the records and direct payment of an additional 8 hours per week of 80 euro to the Complainant from January to 13 May 2018 which is 19 weeks amounting to 1,520 euro gross by the Respondent.

S 6 (1) of the Payment of Wages Act 1991 provides:

A decision of an adjudication officer under S41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of S5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by a employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding- (a)the net amount of the wages (after the making of any lawful deductions therefrom) that-

(i) in case the complaint related to a deduction would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, Or (b) if the amount of the deduction or payment is greater than the amount presented to paragraph (a) twice the former amount.

Finally, I direct payment of 2 weeks wages 800 euro by the Respondent to the Complainant as compensation for the breaches under the Act.

I find the complaint of the Complainant is well founded and direct payment of 4, 382.00 euro gross shortfall of wages, 400 euro gross shortfall in respect of bank holidays, 14.2 days holidays of 5,680 euro gross, shortfall of hours owed of 1,520 euro gross total 11,982.00 euro and 800 compensation for breaches of the Act by the Respondent to the Complainant.

Shortfall of hours, extension of time, compensation, taking boarding into account, holiday pay