Complainant

Respondent

Anonymised Parties

A Restaurant Manager

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-00022124-001

24/09/2018

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

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 his claim to the Workplace Relations Commission on 24 September 2018.

The Complainant submitted that, following his successful application for a position of Restaurant Manager, with the Respondent, he commenced employment on 26 March 2018. The Complainant further submitted that the deadline for the opening of the restaurant for business was 30 March 2018.

According to the Complainant’s submission, it was an incredibly difficult task to hire all floor staff and get the restaurant set up for opening in less than two weeks. The Respondent submitted that none of the staff from the previous year’s business returned, so it was a very demanding task to replace them all. However, the Complainant submitted that he managed to hire some waitresses, the bar person and a Restaurant Supervisor.

According to the Complainant, he had a difficult job persuading the restaurant supervisor, Mr A, to take up the position as he was working as a duty manager in another hotel at the time. However, the Complainant stated that, because they had worked together before and seeing the struggle he was having in finding staff in such a very short period of time, Mr A decided to take the position.

The Complainant further stated that Mr A, with his intensive experience in the industry, was the only other professional member of staff, while the rest of the staff, who had been hired in a very short space of time, has little or no experience. According to the Complainant, following a week of hard work and long hours of preparation, cleaning and training, the business opened as planned on 30 March 2018.

The Complainant submitted that, while he was hired on a 39 hours per week contract, he was forced by the circumstances that existed in the Respondent’s business to work 10/12 hours per day, six days per week. According to the Complainant’s evidence, the additional hours worked related to, amongst others:

·         Intensive staff training.

·         Efforts to bring business to the Restaurant, as a place was struggling in actually having a return guest database and little or no new client database.

·         Ensuring the standards that had been set at the beginning were continuing.

·         Having to cover a number of different positions because there was not enough staff.

·         Staff changes which occurred in the kitchen and on the floor. In particular, the Complainant stated that he (and Mr A) had to step in, when the Head Chef was dismissed by one of the Respondent’s directors, Ms B.

According to the Complainant’s submission, he shared his concerns with Ms B with regards to the extra hours that were needed in order to have the business running smoothly. The Complainant stated that as Ms B always assured him that these extra hours will be paid in the form of lieu-days or holidays, he trusted her without hesitation. However, the Complainant stated that when he was asking for payment of his extra hours and for the bonus that was stipulated in his contract, Ms B was always trying to prolong the payments with fake promises.

The Complainant submitted that, on 3 June 2018, when he gave Ms B his notice, she came to the Restaurant and promised again that the payments would be made, if he would reconsider his decision to leave. The Complainant further submitted that, on the same day, another of the Respondent’s directors, Mr C, came and spoke with him and Mr A. According to the Complainant’s evidence, Mr C confirmed to them that they wanted them to continue working in the business and guaranteed them that everything would be sorted with regard to outstanding payments. The Complainant further submitted that he would rethink his decision to resign and would give the directors an answer shortly.

However, according to the Complainant’s evidence, when both he and Mr A were off, due to the restaurant being closed on that day, Ms B and Mr C held interviews for the position of Restaurant manager and Restaurant supervisor. The Complainant further submitted that as a result of this, both he and Mr A realised that handing in their notice was the correct thing to do.

The Complainant further submitted that, on the last day of work, Ms B thanked them for their work and guaranteed, again, that their outstanding payments would be paid shortly and that they could count on her for a reference whenever one was needed. The Complainant also stated that Ms B thanked them for the easy transition they offered the new management team.

According to the Complainant’s evidence, he contacted Ms B, via email, requesting payment of the monies due. The Complainant further stated that the money paid to him in his last payslip did not cover the extra hours that had been worked. According to the Complainant’s evidence, Ms B replied, informing him that the extra hours would not be paid as there was no legal obligation on her to do so and that the extra hours worked was the Complainant’s decision and were “not required”. The Complainant further stated that despite reminding Ms B that she had told them on numerous occasions that the extra hours would be paid as holiday payments she still refused to make the payment.

The Complainant submitted, that due to his persistence, he received an email from Ms B indicating that while there was no legal obligation on her to do so, she would make a payment of €1,000, in appreciation for the work that had been done. However, according to the Complainant, he only received €700 in payment, as opposed to the €1,000 that had been promised in the email. The Complainant further submitted that when he raised the underpayment with Ms B, she informed him that she was not obliged to pay him and would not be paying him any more than he had received. The Complainant also said that Ms B asked that he stop contacting her in relation to this matter.

In conclusion, the Complainant submitted that he put a lot of dedication, time and feeling into developing the Respondent’s business and was strongly of the view that he did not deserve to be treated in the manner in which he was.

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 Restaurant Supervisor (Mr A) was hired at the Complainant’s request, 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 extra hours were purely a question of competence. The Complainant was not a competent manager and was not able to delegate.

·         The Respondent acknowledged that the issue in relation to the additional hours was raised by the Complainant 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.

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 823.10 hours, during his 12 weeks of employment.   This represents an average of 68.59 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 €2,750 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.

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 €2,750 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.

Organisation of Working Time Act

Weekly Working Hours