Complainant

Respondent

Anonymised Parties

A Restaurant Supervisor

A Bar and Restaurant

Representatives

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-00022122-001

24/09/2018

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

CA-00022127-001

24/09/2018

The Complainant commenced work with the Respondent, a bar and restaurant, on 26 March 2018 in the role of Restaurant Supervisor.

In view of the Respondent’s alleged failure to deliver on commitments given to compensate him for additional hours, which he claims he was required to work, both pre and post the seasonal opening of the business on 30 March 2018, the Complainant tendered his resignation with effect from 17 June 2018.

Following a period of email communication between the parties, during which the Complainant received a payment, which the Respondent considered to be in full settlement of any amounts owed, the Complainant submitted two claims to the Workplace Relations Commission on 24 September 2018, under complaint reference CA-00022122 and CA-00022127.

The Complainant has submitted that he was hired on a 39-hour, full-time contract, as a Restaurant Supervisor at the Respondent’s restaurant. The Complainant further stated that he had been offered the position by the newly appointed Restaurant Manager (Mr A). According to the Complainant, at the time with the offer was made to him he was working as a Duty Manager in a hotel. The Complainant stated that he accepted the offer on the basis that it was a permanent position in a lovely restaurant and provided a new challenge for him at the time.

According to the Complainant’s evidence, he took up his position on 26 March 2018. The Complainant stated that they had to have the restaurant ready to open for business on 30 March 2018, by which time everything had to be in place, including bringing in new suppliers and hiring new staff. It was further submitted that the Restaurant Manager (Mr A) was under significant pressure with regard to the hiring process, as there were no staff reapplying from the previous years’ business and it was difficult to attract qualified staff, given the location of the Respondent’s restaurant.

In addition, the Complainant submitted that he and Mr A were also required to prepare an area of the restaurant, which had not previously been in use and, as a result, was in a complete mess. According to the Complainant’s evidence, being a business with a new start, a tremendous number of working hours were required from both him and Mr A to get the place running smoothly.

According to the Complainant’s evidence, he had been informed, on numerous occasions, by the Respondent’s director (Ms B) that all the additional hours being worked would be paid as holidays or days in lieu. The Complainant further stated that, in this regard, he always trusted Ms B and he never thought that she would refuse to pay these extra hours.

In support of his complaint, the Complainant submitted that, during his employment, he had to cover various positions within the business, such as kitchen porter, cleaner, barman etc, due to the lack of qualified personnel in the kitchen and on the floor. According to the Complainant, while Mr A hired several staff members no one would stay for more than a week due to the lack of accommodation or transport to/from work. The Complainant further stated that this led to an increase in the number of working hours for him and Mr A.

According to the Complainant’s submission, both he and Mr A lived approximately 80 km from their place of work and, as a result, spent roughly 2 hours per day travelling. He further stated that due to the lack of staff, he had to work 10/12 hours per day, six days per week, in order to cover the opening hours of the restaurant.

The Complainant submitted that, on some occasions, Ms B thanked him for the hours he was putting into the business and reassured him that all hours be paid. In this regard, the Complainant submitted that, at one stage, Ms B was thinking of paying overnight accommodation for both he and Mr A at a local B&B, in order that they would get some proper sleep hours. However, the Complainant submitted that this did not happen.

According to the Complainant submission, after three months of hard work and no appreciation received and having got tired of Ms B’s promises to pay the extra hours, he decided to hand in his notice effective on 17 June 2018.

The Complainant further submitted that during his employment with the Respondent, he felt used and humiliated by Ms B’s behaviour. He further stated that, after he finished working for the Respondent, he emailed Ms B several times to request payment for the extra hours worked. According to the Complainant, Ms B replied that she was not legally forced to pay extra hours and that he (the Complainant) should know that, in the industry, extra hours are required to be worked. The Respondent stated that while he fully understands it may be necessary to do a number of hours over his contracted 39 hours per week, he does not accept that he would be required to work an additional 282 hours without getting paid for it.

According to the Complainant submission, after several emails to Ms B, she sent him a payment of €700.00, to cover the “trouble”. The Complainant submitted that once again he felt humiliated by the manner with which Ms B dealt with the matter. It was further stated that after another email was sent to Ms B advising her that the payment received did not cover the extra hours, she replied that she was not willing to pay any more and to stop contacting her.

In response to the Complainant’s claims, the Respondent made the following responses:

·         The Complainant’s contract was on a salaried basis and no overtime was either requested or approved.

·         The Complainant was hired, at the request of the Restaurant Manager (Mr A), on the understanding that they would work alternative shifts and be in a position to cover each other’s days off. The staff numbers and turnover per day did not require a manager and supervisor to work together.

·         Systems and procedures were already in place when the Complainant started work and considerable operational support was provided by the Respondent’s director (Ms B) and the management team.

·         The Respondent acknowledged that the issue in relation to the additional hours was raised by the Restaurant Manager, (Mr A) during management meetings. However, the Respondent did not say the extra hours would be paid by days in-lieu or as holiday pay.

·         It is an understanding in the hospitality sector that any additional hours worked by staff would be compensated by means of tips, which based on previous experience are quite considerable at the Respondent’s restaurant, reaching €600/800 per week at times. In addition, the issue of tips has nothing to do with the Respondent and is completely within the control of the Restaurant Manager.

·         Notwithstanding the above submissions, the Respondent confirmed that they did appreciate the contribution made by the Complainant and in light of his dedication and commitment, he was offered an ex-gratia payment of €1,000 in appreciation of the extra effort he had put into the business. The Respondent confirmed that this payment was taxable and was put through their payroll system.

In conclusion, the Respondent submitted that this was not a personal issue but was a business issue and had been dealt with accordingly.

The Complainant initially submitted two claims under the following references: CA-00022122 and CA-00022127. As the latter claim was a duplicate of the first, it was withdrawn at the Hearing by the Complainant and his claim was dealt with under complaint reference CA-00022122.

Having carefully considered all of the evidence adduced and the respective submissions made by the Complainant and the Respondent, I am satisfied that the matter at issue concerns additional hours worked by the Complainant during his 12 weeks employment with the Respondent.

Section 15 of the Organisation Working Time Act, 1997, sets out the statutory requirements in relation to weekly working hours as follows:

“(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 (hereafter in this section referred to as a “reference period”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5 , it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

(2) Subsection (1) shall have effect subject to the Fifth Schedule (which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule).

(3) The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.

(4) A reference period shall not include—

(a) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),

(b) any absences from work by the employee concerned authorised under the Maternity Protection Act, 1994 , or the Adoptive Leave Act, 1995 , or

(c) any sick leave taken by the employee concerned.

(5) Where an employee is employed in an activity (including an activity referred to in subsection (1) (b) (i))—

(a) the weekly working hours of which vary on a seasonal basis, or

(b) as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,

then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24 may specify, for the purposes of subsection (1) (c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months)”.

Given that the Complainant only worked for the Respondent for a period of three months, I am satisfied that the only “reference period” that is applicable in this case, in order to calculate average weekly hours of work, is the period between 26 March 2018 and 17 June 2018.

The time sheets, covering the above period, which were provided by the Complainant in evidence, show that he worked a total of 756.10 hours, during his 12 weeks of employment.   This represents an average of 63 hours per week, which is clearly well in excess of the 48 hours average as set out at Section 15 (1) of the 1997 Act. Consequently, I find that it constitutes a breach of the Act.

Section 27 (3) of the 1997 Act, as amended, sets out, as follows, the options open to an Adjudication Officer where he/she finds that the Complainant’s claim is well-founded and where it is adjudged that the Respondent has contravened provisions of the Act:

“(3) F22[A decision of an adjudication officer under section 41 of the Workplace

Relations Act 2015 in relation to a complaint of a contravention of a relevant provision

shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

In the context of the above Section of the Act and having carefully considered all the evidence adduced and the submissions made, I find that the Complainant’s complaint is well-founded and I award him an amount of €1,750 as just and equitable compensation, in all the circumstances. It should be noted that, in arriving at the amount of compensation, I factored in a payment of €1,000 which the Respondent had already made to the Complainant, as I considered this payment to have been a bona fide attempt on behalf of the Respondent to resolve the matter.

Complaint Reference - CA-00022122:

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint under the Organisation of Working Time Act, 1997, as amended, is well-founded and I award him an amount of €1,750 as just and equitable compensation, in all the circumstances, for the Respondent’s breach of the Act.

The above award is made as in the context of compensation for breach of the Complainant’s statutory entitlements and, as such, is not subject to the normal statutory deductions that apply to wages/salary.

Complaint Reference - CA-00022127:

This claim was withdrawn at the Hearing.

Organisation of Working Time

Average Weekly Hours