Complainant

Respondent

Anonymised Parties

A General Manager

Owner of a Restaurant

Representatives

Ciaran Tansey, Damien Tansey Solicitors

In person

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-00026141-001

07/02/2019

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

CA-00026141-003

07/02/2019

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

CA-00026141-004

07/02/2019

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

CA-00026141-005

07/02/2019

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

CA-00026141-006

07/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00026141-007

07/02/2019

The seven complaints in this file Adj. 19856 are brought alongside one other complaint in Adj. 19951. Therefore, a total of 8 complaints are being brought by a former general manager of a restaurant in Sligo against owner of the said restaurant, personally.

There are two other linked files Adj. 19860 and Adj. 19948, in which the same eight complaints are brought against the company which the present Respondent says was the employer of the Complainant.

The Complainant brought the eight complaints against two different Respondents because he was unsure as to who his employer was in circumstances where he was hired by the present Respondent in his individual capacity but 7 weeks into his employment, a pay slip issued to him which identified a limited liability company as the employer.

A preliminary ruling is necessary to identify who the employer of the complainant was. Once that ruling is made then the complaints as against the non-employing party are dismissed for want of jurisdiction.

Identifying the Employer

The Respondent is a business man who owns several companies which operate eight separate restaurant businesses.

The Respondent hired the Complainant in September 2018 as general manager of a restaurant business that was due to open in Sligo.

At the time of hiring the restaurant was not fully constructed and for the first 8 weeks of his employment the Complainant helped with the construction work of the premises and from 15 November until his employment was terminated on 16 December 2018, he worked as a general manager of the Restaurant.

In relation to who employed the Complainant, he contends that the employment contract was formed with the Respondent and that some 8 weeks into the employment (for the first time) he issued him with a payslip along with his pay. The name of a company was on the payslip. This was the first time that the Complainant heard of the company. He had no contract in writing and he did not know who his employer was. Therefore he still is uncertain as to whether it was the Respondent personally or the company cited on the payslip to was his employer.

Facts

When the Complainant was hired he left a job in the UK in which he was earning a higher salary. He left the UK as he wished to return to Ireland. He agreed an annual salary of €30,000.00 with the Respondent.

CA-00026141-001. [Payment of Wages Act 1991] The Complainant submits that he was promised a bonus of €900.00, which he did not receive. At the hearing he tried to contend another unlawful deduction namely that he received €405 cash each week instead of €600, which had been agreed.

CA-00026141-003. [OWT Act 1997]. The Complainant submits that he worked for 12 weeks with the Respondent. For the first 8 weeks (stage one of the employment) he assisted in relation to the construction of the restaurant premises and then from 15 November when the restaurant opened he worked as the general manager (stage two of the employment). For the duration of 12 weeks of employment he did not get sufficient breaks during the day. He was double jobbing during stage one in that he worked on construction during on weekdays and interviewed prospective staff at the weekends. During stage two he only got a 15-minute break where he usually ate a sandwich in the kitchen. The remedy being sought is €20,000.00 under section 27 of the OWT Act 1997

CA-00026141-004. [OWT Act 1997]. The Complainant submits that during both stage one and stage two of his employment the Complainant worked over the statutory maximum of 48 hours per week. He gave oral evidence that in stage one he worked over 48 hours per week. As well as doing construction work he had to shortlist 100 interviewees out of 250 job applications and he then interviewed the 100 applicants over the course of one month. He gave written evidence (by way of hours that were submitted) that during stage two, he worked on average 66 hours per week. The remedy being sought is €20,000.00 under section 27 of the OWT Act 1997

CA-00026141-005 [OWT Act 1997]. The Complainant submits that he did not receive a day off per week and that he worked every Sunday. The remedy being sought is €20,000.00 under section 27 of the OWT Act 1997

CA-00026141-006 [T&C Act 1994]. The Complainant submits that he did not receive a contract or statement of his terms and conditions of employment

CA-00026141-007 [Discrimination] Having worked excessive hours, having not been paid properly for those hours and under difficult work conditions where the Respondent was aggressive and dismissive to him and other staff the Complainant asked to have a conversation with the Respondent on 16 December 2018. The Complainant says, despite what the Respondent says that there had been no earlier conversation between them when he told the Respondent of his intention to leave. Neither did he have another job lined up either with a UK based restaurant or anyone else. Instead what happened was that the Complainant met with the Respondent over a cup of coffee and outlined the difficulties that he and other staff were experiencing. He said he was overworked and was no being properly paid. He also said that the tone that the Respondent used with staff was dismissive and was not appropriate. At that point the Complainant told the Respondent that he had bi-polar disorder and that the stress that he was being subjected to was triggering a recurrence of his condition. The Respondent said “lets call it quits.” The Complainant asked if he could stay to hand over the work to supervisors as there was no one who knew to do the rotas or the work sheets. The Respondent said that he was to finish up that day and he could brief the staff on these matters during the remainder of the day. The Complainant finished his shift at 10pm that night and that was the end of his employment. The Complainant had no other job to go to. The company that Respondent identified at the Adjudication hearing as being the company to which the Complainant was due to start work with, didn’t even had a base in Sligo. The Respondent’s version of events is not true. The Complainant did not succeed in getting alternative work until the week before the Adjudication hearing. The remedy sought by the Complainant for breaches under the Employment Equality Acts 1998-2015 is the maximum loss of earnings for 104 weeks €60,833.00

Identity of the Employer

The Respondent says that he is not the employer and that the Respondent cited on the linked complaints is the correct employer.

Defence to the complaints

CA-00026141-001. [Payment of Wages Act 1991]

This complaint is conceded however the Respondent submits that the amount is €700.00 not €900.00. The other complaint is not in the WRC complaint form

CA-00026141-003. [OWT Act 1997].

The Respondent denies this complaint. During stage one the Complainant was in charge of taking breaks or not. He came and left the premises as he was also doing staff interviews. He also needed to leave work for other matters and the Respondent allowed him time off to deal with these matters. During stage two the Respondent did not insist that he work through lunchtime or not take a break. The Complainant was the general manager, it was up to him to take his break or not.

CA-00026141-004. [OWT Act 1997]. The Respondent denies that the Complainant exceeded 48 hours per week. He points to written evidence in relation to the last week of the Complainant’s employment which showed that the Complainant worked in which he worked 49 hours. The Respondent did not provide any written evidence to contest the hours of work that the Complainant submitted over stage two, which were accepted and paid to him.

CA-00026141-005 [OWT Act 1997]. The Respondent accepted that interviews may have been conducted during stage one on Sundays but in general the Complainant did not work on Sundays. During stage one most of the interviews were held during the week although he accepts that some may have taken place at the weekend. During stage two, when the restaurant opened it was all hands on deck. Everyone was working very hard because the restaurant had just opened and due to construction delays there was so much to do in the first few weeks. As if often the case with business when they start, the organisation of wages, contracts, rosters, protocols and so on, these took a number of weeks to be bedded down. The Complainant gave in his notice to leave before the restaurant had even opened. The Respondent knew from then on that the Complainant would be leaving. Organising his hours correctly and giving him a contract were not a priority given that he would be leaving in January in any event.

CA-00026141-006 [T&C Act 1994]. This complaint is conceded

CA-00026141-007 [Discrimination] The Complainant gave his notice to the Respondent in early November, before the restaurant opened. When he gave him his notice he told the Respondent that he had another job with a named UK-based restaurant business, which had recently extended into Ireland. He told him he would work out his month’s notice but the Respondent asked him to stay until after Christmas because the restaurant was just about to open and he needed some breathing room. The Complainant agreed to this. On 16 December 2018 the Complainant asked the Respondent for a meeting at which he complained about being treated disrespectfully and he complained about how the Respondent was treating other staff. He was being very negative and critical. The Complainant said that he had bi-polar disorder and that the stress of the business was triggering his condition. The Complainant told him that had the Respondent recruited the Complainant properly that his condition would have been disclosed. The Respondent could see that that the Complainant was under stress and for his own good, the Respondent suggested that he finish up there and then, ie to go back to the original one month notice period that would have ended around then, instead of waiting until after Christmas. The Complainant did not disagree to this and that was the then last day that the Complainant worked. The Respondent understood from what the Complainant said that that in the Complainant’s new position he would be working 3 days in Sligo in the new employer’s Health and Safety division and 2 days in Dublin. He understood that the Complainant would be taking up this position up with immediate effect. The Respondent had known that this was going to happen in January anyway and that the new role was more suited to the Complainant’s career aspirations. There was no ill will on 16 December. As far as he was concerned the Complainant was too stressed by the work demands in the job and due to his health deteriorating they both agreed that to revert back to the original notice period would be the best option. The complaint of discrimination is denied.

Identity of Employer

I am satisfied as a matter of probability that the contract of employment was formed between the Respondent personally and the Complainant and not with the company that was later identified on the pay slip. The Complainant started to work for the Respondent in early September 2018. It has not been denied by the Respondent that the first time that there was any reference to the limited liability company was in the form of a pay slip issued to the Complainant 8 weeks into the job.

I therefore find as a matter of fact that the employer was the Respondent as an individual.

The claims in the linked cases against the limited liability company will be dismissed for want of jurisdiction as the company was not the employer.

Decision on substantive complaints

CA-00026141-001. [Payment of Wages Act 1991]

I am limited to the complaint as set out in the complaint form. To do otherwise would be incorrect as it would be a separate complaint to that cited under CA-00026141-001 and the Respondent was not put on notice of this until the Adjudication hearing.

As the complaint in relation to the lump sum payment, is conceded in part, I accept that the amount agreed to be paid should have been paid and I find that the failure to pay constitutes an unlawful deduction from wages as set out in the Payment of Wages Act 1991. I find the Complainant’s evidence in this complaint to be more credible than the Respondent’s. I find this complaint to be well founded and I make the following award.

Award: €900.00

CA-00026141-003. [OWT Act 1997].

As the Complainant was working between two locations during stage one, I find that he was in control of the hours worked and the breaks taken. In respect of stage two I find that there probably were breaches in terms of daily rest periods however as he was the general manager the rests periods were up to the Complainant to take, so if there were breaches they were self-imposed. There was no evidence that the Respondent told him not to take a break when he attempted to do so. I do not find this complaint to be well founded

CA-00026141-004. [OWT Act 1997]. The hours that were worked by the Complainant exceeded 48 hours. This was known to or should have been known to the Respondent, because the Complainant filed his work hours with payroll. These figures were not contested at the hearing by the Respondent. I find this complaint to be well founded and I award the Complainant the sum of €1000.00 in respect of this breach

Award: €1000.00

CA-00026141-005 [OWT Act 1997]. The Respondent does not deny that the Complainant was working a 7 day week and therefore there is no evidence to contest the claim that the Complainant worked 7 days per week some weeks, although not for all of the 13 weeks that he was engaged. I find the Respondent’s explanation for this to be credible but not exculpatory. That explanation was as follows: due to the construction work being delayed the opening of the restaurant was postponed which created pressure. Then, when the restaurant opened, for the 4 weeks that the Complainant worked, he did so excessively and on some weeks he worked 7 day weeks. I find this complaint to be well founded although the award reflects the fact that the breaches occurred over a limited period of time.

Award: €200.00

CA-00026141-006 [T&C Act 1994]. As this complaint is conceded I award the Complainant 1 week of pay. This is based on the payslip issued by the Respondent

Award: €600.00

CA-00026141-007 [Discrimination]

This complaint is a claim for discriminatory dismissal. I find the Respondent’s evidence to be persuasive in relation to some of the other complaints. I find his description, that these issues all arose during a very busy period of time, as being a logical explanation as to why the breaches, when they did occur, occurred. However, in relation to the complaint of discrimination, I find the Respondent’s version of events not to be consistent with his description that the Complainant’s bi polar disorder was not in part the reason for his contract being terminated.

Even on the Respondent’s version there is evidence of discrimination. He says that there was an agreement for the Complainant to finish work in January 2019 and the decision to abridge the notice period was taken by him because the Complainant was complaining and in light of his health condition, that it was in his best interest, health wise, to go early. This is not an adequate defence to a claim for discrimination. His evidence is not that the decision to leave on 16 December was the Complainant’s. On the Respondent’s evidence, it was his decision to abridge the notice period and he did so because the Complainant was suffering from stress and reporting this to the Respondent. To end the notice period early was not a matter for the Respondent to decide.

I find as a matter of probability that the Respondent was under pressure, the relationship with the Complainant had not worked out, during the coffee conversation on December 16th the Complainant was being critical of the Respondent and this annoyed the Respondent because he was under enough pressure at it was. When the Complainant told him that he had bi -polar disorder this suddenly was the tipping point for the Respondent.

What supports this likelihood is that according to the Respondent, the Complainant told him that had the Respondent done a proper job induction it would have informed him of the Complainant’s medical condition. I believe that this most likely arose in response to the Respondent telling him he should have advised him about his condition before he took the job. As such I do not accept that the news as to the Complainant’s medical condition was received in the neutral way that the Respondent described at the Adjudication. I do not accept that the Complainant had another job to go to on 16 December and this played out in terms of the Complainant having to apply for job seekers allowance after 16 December and not getting another job until some months later. All of this supports the Complainant’s version of events. I find that the employment was terminated on 16 December for reasons connected to the Complainant’s disability and therefore I find that a prima facie case of discrimination has been made out as against the Respondent. As no justification has been raised I find that this complaint is well-founded and I order the sum of €10,000.00 to be paid to the Complainant.

Award: €10,000.00