Complainant

Respondent

Anonymised Parties

Chef

Restaurant owner

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017867-001

09/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00017867-002

09/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00017867-003

09/03/2018

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

CA-00017867-004

09/03/2018

The complainant commenced employment with the respondent as a chef on 3/10/2016. He earned €410 per week and worked 50 hours. He states he was unfairly dismissed on 31/1/2018.

On 9/3/2018, he submitted a complaint under the Terms of Employment (Information) Act, 1994, a complaint under section 24 of the National Minimum Wage Act, 2000, a complaint under Section 8 of the Unfair Dismissals Act, 1977 and one under section 6 of the Payment of Wages Act, 1991.

CA-00017867-001.Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The complainant did not receive a statement in writing of his terms and conditions of employment.

CA-00017867-002.Complaint under section 24 of the National Minimum Wage Act, 2000.

The complainant was paid €410 gross for working an average of 50 hours a week which at €8.20 per hour is below the minimum wage. He was paid the same amount each week even though the hours varied. The complainant looked for a statement of his hours from the company on 2/12/18. The respondent did not respond to his request. He submits that the service charge paid to him is not reckonable pay for purposes of establishing his rate. Service charge was neither guaranteed nor constant.

CA-00017867-003.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The complainant stated he was accused of stealing meat to the value of €150 on the 31 January 2018. The Gardaí were not called. There was no investigation. He was dismissed without notice.

His evidence was that he was called to the cloakroom about 6pm. He noticed his bag was not in the place where he normally left it. The bag felt heavy. He was asked to open his bag. He was reluctant to do so because it looked heavy. Meat was in it. He did not put the meat into his bag. He went back to work as his shift was 1-11pm.

On the 1 February, he was called to a disciplinary meeting. He was given a letter stating he had received his P. 45 and monies owing to him and asked to sign it. The letter was already done when it was handed to him.

The complainant took up alternative employment on 5/3/2198. He is earning €17.04 per hour.

The complainant received a letter from the Gardai on the 14 August stating that a complaint had been made against him for alleged theft. There was no further follow up from the Gardai.

There was no formal disciplinary policy in place. That being the case the complainant’s representative points to S.1. 146 of 2000, which sets out the obligations which lie with employers in a disciplinary or dismissal process.

“the principles and procedures of this Code of Practice should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues. The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures”

The complainant states that contrary to the obligations set out in S.1. 146 of 2000, he was not advised in writing of the charges facing him. It was not an impartial hearing on the 1 February in the sense that he was handed a pre- written letter and asked to sign it accepting his dismissal and that outstanding monies had been paid to him. No right of appeal was offered to the complainant.

He asks the adjudicator to find that the dismissal was unfair.

CA-00017867-004. Complaint under section 6 of the Payment of Wages Act, 1991.

He did not receive his statutory notice of one week.

CA-00017867-001 Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

The respondent rejects the complaint. The respondent submitted a copy of the contract signed by the complainant on 20/10/16. The respondent’s company secretary in attendance at the hearing stated that he gave the complainant the terms of his employment and contract on 20/10/16.

CA-00017867-002.Complaint under section 24 of the National Minimum Wage Act, 2000.

The respondent rejects the complaint. He was paid €410 for the 45 hours which he worked. He was paid €9.55 in the first year and €9.85 in the second year. He received service charge payments weekly. He received overtime pay plus meals.

The respondent asks that the adjudicator to reject this complaint based on the rosters and pay slips submitted which they maintain disproves his claim.

CA-00017867-003.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The company does periodical searches of employees’ bags as provided for in their contracts. They did a search on 30 January. They found meat to the value of €150 but with a commercial value of €600-700 in the complainant’s bag in the staff cloakroom. CCTV footage, viewed later, showed the complainant taking the meat out of the freezer. There is no CCTV footage in the cloakroom.

The complainant stated that someone must have put the meat into his bag.

On the 31 January the respondent asked him to attend a disciplinary meeting the following day the 1 February. He advised him that it was a very serious matter, that he could be dismissed and to bring someone along with him.

At the meeting neither the representative nor the complainant offered any explanation as to how the meat got into the complainant’s bag. Given that the complainant disclaimed any knowledge as to how this had happened, they decided to dismiss him. The respondent refused to accept that someone had played a joke on the complainant. Bottles of wine had gone missing previously but were not found.

The respondent head chef stated that he had no reason to dismiss him other for the theft of lamb. He was a good worker. His wife was expecting a baby. The complainant said to him ‘don’t get the Guards”. The respondent did inform the Gardai in March. The Gardai interviewed the respondent in Mid-March 2018.

He was accompanied at the hearing by Mr P, a fellow national. Mr P’s evidence was that contrary to what the complainant asserted, he did sign the letter of the 1 February. Mr P established that the complainant understood what was being said to him.

Mr. P stated that it was company policy to dismiss for stealing goods.

Mr P confirmed that the staff received paid breaks.

The respondent’s barrister states that the complainant provided no credible explanation for the existence of the meat in his bag. He was given the opportunity to prepare for the meeting and to be accompanied at the meeting. The decision to dismiss was within the band of reasonableness.

CA-00017867-004.Complaint under section 6 of the Payment of Wages Act, 1991

The respondent asserts that they were entitled to dismiss the complainant without notice. The complainant was dismissed for a fundamental breach of contract. He signed a statement stating that he was paid all outstanding monies.

CA-00017867-001 Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

I find that the complainant did receive terms and conditions of employment, a copy dated 20/10/16 and signed by the complainant was presented. The signature which he disavows as his own is like the signature attaching to his PPS card and bank statements. I therefore find that he did receive terms and conditions in accordance with section 3 of the Act of 1994.

CA-00017867-002.Complaint under section 24 of the National Minimum Wage Act, 2000.

I have considered the rosters and pay slips submitted by the respondent.

Section 19 of the Act defines reckonable pay

“Subject to section 18, all the pay of an employee in a specific pay reference period shall be included in calculating the employee's average hourly rate of pay in that period for the purposes of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in that period.”

Reckonable pay is further defined in Part 1 of the Schedule. Reckonable and Non-Reckonable Pay Components in Calculating Average Hourly Rate of Pay, Minimum Wage Act, 2000 states

PART 1 — RECKONABLE COMPONENTS

Basic salary.

Shift premium

Piece and incentive rates, commission and bonuses, which are productivity related.

The amount of any service charge distributed to the employee through the payroll”.

The service charge paid to the complainant was calculated on the restaurant’s business, was made through the pay roll section, appeared each week on the payslips for the period March 2017 – February 2018. Accordingly, I find the service charge to be a reckonable component for purposes of calculating the average hourly rate of pay.

The pay slips and corresponding rosters reveal that the basic weekly rate of €410 plus the service charge paid to the complainant brought his hourly earnings above €9.25 in 2017 and above €9.55 in 2018.

I do not find the complaint to be well founded.

CA-00017867-003.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The complainant was dismissed for being found with the respondent’s goods in his possession.

It is not disputed that racks of lamb were found in his bag. I do not accept the explanation that somebody else put them in his bag. The fact that there was a delay in informing the Gardai does not alter the fact that it happened or render his explanation more credible.

I find that the decision to dismiss was within the band of reasonableness.

I will address how the dismissal was effected.

He was given verbal notice of the disciplinary meeting a day in advance, was informed of the seriousness of the matter and that dismissal was a possibility and was advised to bring a representative with him.

At the disciplinary meeting on the 1 February, he provided no credible explanation for being in possession of the respondent’s goods. He was presented with a letter at the meeting, written, according to the respondent, a few hours before the meeting. The letter sought his written acceptance of receipt of holiday pay and his p.45, also presented to him at the meeting. So, the respondent came to the disciplinary meeting prepared and determined to dismiss the complainant. The fact they had reasonable grounds to believe that he had taken the meat did not disentitle the complainant to an impartial hearing the outcome of which had not already been decided.The evidence indicates that the outcome had been decided in advance of the hearing.

He was not offered an appeal option.

Procedurally, I find the dismissal to be unfair.

The complainant has secured alternative employment on 5/3/2018. He was at a loss of 4 weeks salary. I find he contributed to a very significant degree to his own dismissal.

I decide that the respondent should pay him €500.

CA-00017867-004.Complaint under section 6 of the Payment of Wages Act, 1991.

This complaint maintains that the failure to pay notice contravenes section 5 of the Act of 1991.

Section 5 (1) of the Act states

“An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, “

I find that a weeks’ notice was properly payable. Nothing in the contract or the terms of employment provide for non- payment of notice. His terms of employment state that notice will be given in accordance with D.E.T.E rules. The contract provides for termination without notice in relation to probationary periods and states” in other cases the company will give notice in line with the Minimum notice and Terms of Employment Act 1973-2001.”

He was not supplied with a weeks’ notice of the respondent’s intention to withhold notice.

I have found the dismissal to be procedurally unfair. I decide that the withholding of payment in lieu of notice was an infringement of the act of 1991.

CA-00017867-001.Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

I do not find this complaint to be well founded.

CA-00017867-002.Complaint under section 24 of the National Minimum Wage Act, 2000.

I do not find this complain t to be well founded

CA-00017867-003.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I find this complaint to be well founded. I decide that the respondent pay the complainant the sum of €500.

CA-00017867-004.Complaint under section 6 of the Payment of Wages Act, 1991.

I find the complaint to be well founded. I decide that the respondent should pay the complainant the sum of €500.

Minimum wage; reckonable components. Unfair Dismissals. Payment of Wages