Complainant

Respondent

Anonymised Parties

Chef

Licensed Premises Owner

Representatives

Self

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-00027738-001

15/04/2019

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

CA-00027738-002

15/04/2019

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

CA-00027738-003

15/04/2019

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

CA-00027738-004

15/04/2019

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

CA-00027738-005

15/04/2019

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

CA-00027738-006

15/04/2019

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

CA-00027738-007

15/04/2019

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

CA-00027738-008

15/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00027738-009

15/04/2019

The complainant commenced employment with the respondent as a full-time chef on 17 July 2018.   The complainant posted a comment on 1 March 2019 on social media in relation to standards of food presentation in the respondent’s premises. The complainant was not rostered for any more work by the respondent.

The complainant had concerns about a number of aspects regarding standards in the kitchen where he worked.

The complainant posted a comment on 1 March 2019 in this regard in a whatsapp group forum which was used by kitchen staff and the owner.

The complainant was never subsequently rostered for work by the respondent. The complainant was requested by text to leave the keys of the premises into the local Garda station.

Attempts by the complainant to arrange a meeting with the respondent were unsuccessful.

The respondent withheld money from the complainant’s final payment, did not compensate the complainant with regard to annual leave and public holiday entitlements or pay him in lieu of notice. The complainant believes that he was unfairly dismissed.

There was no attendance by the respondent at the hearing.

This case was listed for hearing in conjunction with the complaints contained in file ADJ-00020566 which involved the same complainant and respondent. The respondent was not in attendance at the hearing. It is my practice, in situations where a party is not present, to defer the commencement of the hearing for a short period to allow for delays that might occur due to traffic, difficulty in locating the hearing location, etc. In this regard, due to other factors, the commencement of the hearing was delayed and therefore that possibility was not relevant. No explanation was received as to the respondent’s non-attendance.  On examining the file I note that the complaint form was received by the WRC on 15 April 2019. Further particulars were sought from the complainant and the response received the following day included the name and address of the respondent. The address included the title of the licensed premises and the street on which it was located. The lack of a specific street number, having regard to the particular geographic location in question, would not have presented difficulties in delivery of the post. Notice of arrangements for the hearing were sent on 1 August 2019. As noted above, the hearing was also dealing with complaints in file No. ADJ-00020566 for which a separate notice was sent and with regard to which the respondent had engaged with the WRC. No communication was received from the respondent either prior or subsequent to the hearing with regard to his non-attendance. I am satisfied that the respondent was duly informed in writing of the arrangements for a hearing at which the complaints would be investigated.

The background to the complaints / dispute as set out by the complainant is as follows:

The complainant commenced employment with the respondent on 17 July 2018. The position was that of a chef in a licensed premises operated by the respondent. On 1 March 2019 the complainant posted an entry on a whatsapp group forum, the members of which included the kitchen staff and the respondent. In that entry the complainant criticised the manner of food presentation and in particular the behaviour of another chef.   As a result of this the complainant stated that he had been removed from the roster and not given any working hours. On 4 March 2019 the complainant contacted the respondent by email requesting that he be paid for two days worked on 25/26 February together with any outstanding holiday pay. The respondent replied to the effect that the complainant had been overpaid holiday pay to date and that taking everything into account, including what the respondent deemed to be advances on wages, the complainant actually owed the respondent over €1,000.00. There followed an exchange of text messages in which the respondent instructed the complainant to leave the keys of the premises in the local Garda station.   The respondent also suggested meeting the following week “to discuss where we go from here”. The complainant for his part insisted that he be paid for annual holidays and public holidays and that he intended contacting the WRC in relation to a number of matters. The respondent responded to the effect that he felt threatened and harassed by the complainant and that the referral of complaints to the WRC was an attempt at blackmail. The complainant stated in evidence that he then decided not to engage any further directly with the respondent but to leave that to his partner. The complainant’s partner in evidence stated that she telephoned the respondent on 6 March and advised that she would hand in the keys to the Garda station but that it would take a few days to arrange this. She further stated that she had enquired about the complainant’s position and was informed by the respondent that he was not sacked but that he could be put back on the roster in six months’ time. The respondent also told her that he would arrange a meeting and the partner informed the respondent about availability for such a meeting. There was no further contact from the respondent in relation to the meeting. The complainant, having consulted with Revenue, subsequently went online and removed himself as an employee of the complainant on the Revenue website.

Complaint No. CA-00027738-001:

This is a complaint under the Payment of Wages Act, 1991, to the effect that the respondent had made an unlawful deduction from the complainant’s wages. 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 the 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.

Section 5(5) of the Act states:

Nothing in this section applies to –

(a)    a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where

(i)                  the purpose of the deduction or payment is the reimbursement of the employer in respect of –

(l) any overpayment of wages, or

(ll) any overpayment in respect of expenses incurred by the employee in carrying out his employment…

In his submission the complainant refers to his request to be paid for two days that he had worked plus outstanding holiday money and the resulting refusal of the respondent in this regard. The matter of annual leave entitlement is the subject of another complaint and I will deal with that matter in that context.

On 4 March 2019 the complainant emailed the respondent requesting payment for two days worked the previous week together with any outstanding holiday pay that would be due to him. There is an email from the respondent which refers to two payments received by the complainant that the respondent states that he is off-setting against those two days. One was a payment of €500.00 which appears on the payslip of 30 October 2018 as a bonus and which the complainant in evidence stated was a bonus in recognition of work done by him at that time. On the basis of the evidence before me I have to accept that that money was a bonus. The other payment was for the sum of €300.00 which the respondent in his email terms an advance paid from the safe on Christmas week. The complainant in evidence stated that it was a personal loan advanced by the respondent to him. It appears to me that as it does not appear on a wage slip then it is a personal matter between the parties and therefore I cannot take it into consideration when investigating this matter. It does not fall into the category of being an overpayment of wages.

Finally, Section 5(6) of the Act states:

Where –

(a)    the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b)    none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except as in so far as the deficiency is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

I find therefore that the non-payment for the two days worked on 25 / 26 February 2018 amounts to a deduction from the complainant’s wages and that the deduction does not fall within the categories provided for by the Act. It follows therefore that I find that the complainant is due pay for 21 hours worked which equates to €294.00.

Complaint No. CA-00027738-002:

This is a complaint under the Payment of Wages Act, 1991, stating that the respondent has not paid the complainant the amount due to him. At the hearing the complainant accepted that this complaint duplicates other complaints and therefore no specific submission was made in this regard.

Complaint No. CA-00027738-003:

This is a complainant under the Payment of Wages Act, 1991, claiming that the complainant did not receive the appropriate payment in lieu of notice of termination of his employment. This matter has been dealt with as Complaint No. CA-00027040-002 under the Minimum Notice and Terms of Employment Act, 1973, contained in ADJ-00020566. This complaint accordingly fails.

Complaint No. CA-00027738-004:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive his annual leave entitlement. Section 19(1) of the Act states that an employee shall be entitled to paid annual leave equal to:

(a)    4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b)    One-third of a working week for each month of the leave year in which he or she works at least 117 hours, or

(c)     8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Section 2 of the Act defines the leave year as commencing on 1 April of each year.

I have examined the pay slips provided by the complainant in this regard. It appears from these that the complainant worked a total of 1,130 hours inclusive of the final two days. Applying the calculation of 8% of hours worked then the annual leave due amounts to 90.4 hours. Holiday pay appears on the wage slips as follows:

Pay slip dated 16 December: 7.5 hours

Pay slip dated 6 January:   8 hours

Pay slip dated 13 January:   48 hours

Pay slip dated 3 February:   8 hours

Total holiday hours:   71.5 hours

Holiday hours due:     18.9 hours

Based on the evidence before me I find that the complainant is due to be paid for 18.9 hours which equates to €264.60.

Complaint No. CA-00027738-005:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive his Public Holiday entitlements. Section 21 of the Act states:

(1)    Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –

(a)    a paid day off on that day,

(b)    a paid day off within a month of that day,

(c)     an additional day of annual leave,

(d)    an additional day’s pay:

The complainant has stated in his submission and in evidence that he never received any entitlement in respect of the Public Holidays worked by him. The relevant Public Holidays in the 6 month period prior to the presentation of the complaint on 15 April 2019 are October 2018, 25/26 December 2018 and New Year’s Day 2019. There is nothing that appears on the pay slips that indicates any payment in respect of these days. I also note that according to the complainant when he queried the respondent in this regard the respondent told him that such entitlement was incorporated into the complainant’s basic pay. I therefore find that this complaint is well founded.

Complaint No. CA-00027738-006:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant was not paid for 25% of the time that he was required to be available for work that did not then arise. This refers to a breach of Section 18 of the Act that deals with zero hours’ contracts.   The complaint appears to relate to the fact that the respondent removed the complainant from the roster following the posting of his comment on social media.   Section 18(1) of the Act states:

This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week –

(a)    a certain number of hours (the “contract hours”),

(b)    as and when the employer requires him or her to do so, or

(c)     both a certain number of hours and otherwise as and when the employer requires him or her to do so,

and the said requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to the said week (whether or not the number of those occasions or the circumstances otherwise touching the said engagement of the employee are such as to give rise to a reasonable expectation on his or her part that he or she would be required by the employer to do work for the employer in the said week).

The complainant stated that he had never received a contract. The complainant did not make any specific submission as to how he believed that the respondent was in breach of this particular section of the Act.   It appears to me, however, from the evidence before me, that following the removal of the complainant from the roster and certainly following the conversation with the complainant’s partner there was no longer a requirement for the complainant to make himself available to work for the respondent. The complainant has claimed that these actions in fact amount to him being unfairly dismissed by the respondent and has lodged a dispute to this effect under the Industrial Relations Act. Having regard to all the circumstances I find this complaint not to be well founded.

Complaint No. CA-00027738-007:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant was not compensated for loss of annual leave entitlement on leaving employment. The issue of payments due in relation to annual leave entitlements has been dealt with in Complaint No. CA-00027738-004 above.

Complaint No. CA-00027738-008:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant was not compensated for loss of Public Holiday entitlements on leaving employment. The issue of payments due in relation to Public Holiday entitlements has been dealt with in Complaint No. CA-00027738-005 above.

Complaint No. CA-00027738-009:

This is a claim for unfair dismissal. The complainant had less than 12 months service with the respondent and consequently the claim is lodged as a dispute under the Industrial Relations Acts.

This matter was considered in the context of the complaint under the Minimum Notice and Terms of Employment Act, 1973, contained in Complaint No. CA-00027040-002 in file No. ADJ-00020566. In summary I found that the actions of the respondent in unilaterally removing the complainant from the roster, not providing him with work and subsequently refusing to meet with the complainant amounted to a repudiation of the contract of employment by the respondent. In the ruling of Lord Denning in Western Excavating ECC Ltd.v Sharp it was stated that:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct”.

The failure by the respondent to provide work to the complainant is clearly a significant breach going to the root of the contract.

In considering this matter I not only have to look at the conduct of the employer but also must consider the conduct of the complainant. The original message, although addressed to the respondent, was placed on a “whatsapp” group site and as such was viewable by the members of that group. The group appears to be confined to members of the kitchen staff as well as the respondent. The language used by the complainant was blunt. Allegations were made and derogatory language used against a named member of the kitchen staff. In his defence the complainant stated that on a previous occasion another member of the kitchen staff had posted defamatory remarks about the complainant on the site and no action had been taken against that person by the respondent. The complainant argued therefore that he did not believe that he was breaching company rules in making the comments that he posted on the site. He should have been aware though that such remarks and allegations should have been conveyed to the respondent on a one-to-one basis and not where they could be seen by other members of the kitchen staff.

The conduct of the respondent on the other hand was compounded by his subsequent refusal to arrange a meeting with the complainant to discuss these matters.   Finally, there was obviously a complete lack of procedural fairness and the application of the principles of natural justice with regard to the actions of the respondent in these matters.

I find therefore that the actions of the respondent amounted to an unfair dismissal but that the complainant had a degree of contribution to the dismissal. I note that the complainant stated at the hearing that he had not as yet found new employment even though reports suggest that there is a scarcity of chefs at the moment. He further stated that he was considering seeking employment in the construction industry.

Taking all these factors into consideration I recommend that the respondent pay to the complainant the sum of €8,500.00 as compensation for the dismissal.

Complaint No.CA-00027738-001:

For the reasons outlined above I find this complaint under the Payment of Wages Act, 1991, to be well founded and I order the respondent to pay to the complainant the sum of €294.00 in this regard.

Complaint No. CA-00027738-002:

For the reasons outlined above I find this complaint under the Payment of Wages Act, 1991, not to be well founded.

Complaint No, CA-00027738-003:

For the reasons stated above I find this complaint under the Payment of Wages Act, 1991, has been dealt with under a previous complaint and that therefore this complaint is not well founded.

Complaint No. CA-00027738-004:

For the reasons stated above I find this complaint under the Organisation of Working Time Act, 1997, to be well founded and I order the respondent to pay to the complainant the sum of €264.60 in respect of the economic loss suffered in this regard.   In addition, and in accordance with Section 27(3)(c) of the Act, I order the respondent to pay to the complainant the sum of €125.00 as compensation in this regard. The total award under this complaint is therefore €389.60.

Complaint No. CA-00027738-005:

For the reasons stated above I find this complaint under the Organisation of Working Time Act, 1997, to be well founded and I order the respondent to pay to the complainant the sum of €516.60 in respect of the economic loss suffered in this regard.   In addition, and in accordance with Section 27(3)(c) of the Act, I order the respondent to pay to the complainant the sum of €200.00 as compensation in this regard. The total award under this complaint is therefore €716.60.

Complaint No. CA-00027738-006:

For the reasons stated above I find this complaint under the Organisation of Working Time Act, 1997, to be not well founded.

Complaint No. CA-00027738-007:

For the reasons stated above I find this complaint under the Organisation of Working Time Act, 1997, to be not well founded as it duplicates a previous complaint.

Complaint No. CA-00027738-008:

For the reasons stated above I find this complaint under the Organisation of Working Time Act. 1997, to be not well founded as it duplicates a previous complaint.

Complaint No. CA-00027738-009:

For the reasons stated above I find that the complainant was unfairly dismissed by the respondent and in accordance with the provisions of the Industrial Relations Acts, 1969, I recommend that the respondent pay to the complainant the sum of €8,500.00 as compensation in this regard.