ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019951
Parties:
| Complainant | Respondent |
Anonymised Parties | A General Manager of a Restaurant | The Restaurant Owner |
Representatives | Ciaran Tansey Damien Tansey Solicitors | In person |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00026423-001 | 20/02/2019 |
Date of Adjudication Hearing: 29/04/2019
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
Seven complaints in file Adj. 19856 are brought alongside the present 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. |
Summary of Complainant’s Case:
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. When the Complainant was hired by the Respondent 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. CA-00026423-001 The Complainant states that due to excessive amount of hours worked, his weekly pay of €600 when averaged out over the hours worked this resulted in receiving €7.54 per hour, lower than the national minimum wage. |
Summary of Respondent’s Case:
CA-00026423-001 This complaint is denied although the Respondent was not in a position to evidence the records to show the hours that he says the Complainant worked. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Identity of Employer I am satisfied as a matter of probability that the contract of employment was formed between the Respondent as an individual and the Complainant. The contract was made between the complainant and the Respondent personally. 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. Substantive Complaint CA-00026423-001 For the purposes of calculating arrears under the national minimum wage legislation, I am satisfied as a matter of probability that the Complainant received €500 in cash for the first 8 weeks of the employment (not €405 as the Complainant contends) and that he received €600 gross for the remainder of the employment. As it is conceded that the Complainant did some construction work in the first 8 weeks of employment, he was entitled to the minimum pay as set out under the Sectoral Employment Order (SI 455 of 2017) for the first 8 weeks. However, at the Adjudication hearing the Complainant’s calculation was incorrect in that it conflated gross and net incomes. I find that as the hours of work that the Complainant filed with payroll were not contested by the Respondent at the Adjudication hearing that there was a breach under the 2000 National Minimum Wage Act and that the complaint is well founded. This decision is consistent with the hours that the Complainant says he worked, which was upheld in complaint CA-00026141-004. Award: €1886.00
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Dated: 11/06/2019
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
Minimum wage |