Complainant

Respondent

Anonymised Parties

A Chef

A Bar and Restaurant

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-00026514-001

25/02/2019

On his complaint form, the complainant said that he started working as a chef in the respondent’s pub on October 19^th 2018.  In the respondent’s correspondence, he says that the complainant commenced on October 27^th.  However, the complainant produced the P60 that he received from the respondent on January 2^nd 2019 and this states that he commenced on October 19^th 2018.  Further evidence of the fact that he started work on October 19^th was submitted by the complainant in the form of a copy of a text message from him to the respondent on Monday, October 22^nd, when he asked the respondent if he would be paid “today or tomorrow”.  He said that he sent this text message because he had worked the previous Friday, Saturday and Sunday and he was wondering when he would get paid. 

The complainant said that he left his job in the respondent’s pub on February 10^th 2019.  The respondent claims that his “end date period” was January 7^th 2019.  However, in the same correspondence, the respondent said that on February 2^nd, the complainant told him he would be leaving “next week.”   

The complainant said that he generally worked 43 hours per week and that his wages were €720 per week.  The respondent’s correspondence states that the payroll week is from Saturday to Sunday and wages are paid on Fridays.  The complainant finished up on Sunday, February 10^th, 2019 and he went to the pub the following Friday to collect his wages.  He was always paid in cash.  An employee gave him an envelope with €280 in cash, which he says was pay for his last two days at work.  His complaint is that he was not paid for the first complete week of his employment.  He said that he took no holidays when he worked for the respondent, and, when he left, he was not paid for holidays not taken.  He also said that he was not paid any premium when he worked on three public holidays.

The complainant said that he earned €720 per week.  He did not get a statement of his terms and conditions of employment and he was never informed about his entitlements regarding holidays, Sunday work or working on public holidays.  He claims that his wages of €720 per week was for a standard working week comprising 43 hours’ work.  He claims that he is owed the following:

Pay for the first full week of his employment:  €720

Double time for working on three public holidays:  (€720 ÷ 5) x 3 = €420

Holiday pay, based on 8% of the hours worked over 16 weeks and three days (714 hours):  57 hours x €16.74 = €954.42.  The complainant said that he was advised by the Citizens Information Centre that this is the correct method of calculating his holiday pay.

On March 18^th 2019, the respondent wrote to the WRC and said that the complainant left his employment to run his own restaurant and that he wished him well.  He said that “his final wage which included his holiday money is in the safe in the pub for the last couple of weeks.”  

On February 14^th, the respondent said that he got a text message from the complainant asking him about his wages.  This is the same day that the complainant collected two days’ pay from the pub.  The respondent said that he phoned the complainant many times but that he didn't return his calls.

The respondent said that the complainant was not on an hourly rate of pay and that his weekly pay of €720 included pay for bank holidays and Sundays.  He said that he was entitled to four weeks’ holidays a year.  At the termination of his employment, the respondent said that the complainant was entitled to 1.26 weeks’ holiday pay.  The correspondence includes a copy of a payslip indicating a payment of €908.04 gross and €490.00 net.  The respondent said that this amount is available for the complainant to collect.  He said that the complainant did not work a back week and has been paid all his wages.

The respondent said that when the complainant left, he understood that he was moving to County Meath and that he has no address to send him the payment.  He did not explain why he did not include the full amount owed to the complainant in his final wages which the complainant collected from the pub on Friday, February 15^th 2019.

I find that the complainant started working for the respondent on Friday, October 19^th 2018 and that he finished up on Sunday, February 10^th 2019.

He did not receive a statement of his terms and conditions of employment and I find therefore, that he is entitled to assume that €720 per week is for a standard working week.  As he agreed to work every Sunday, it is my view that his standard working week included Sundays.

The complainant said that he left his employment due to hygiene issues in the pub where he worked and that he didn’t open his own restaurant and he didn’t move to County Meath.  He still lives at the same address he was living at when he worked for the respondent.

In the absence of evidence to the contrary, I find that the complainant is entitled to pay for the first week of his employment, a sum owed of €720.

In accordance with section 21 of the Organisation of Working Time Act 1997, I find also that he is entitled to double time for working on three public holidays, October 29^th and December 26^th 2018 and January 1^st 2019, a sum owed of €420.

Section 23 (1) of the Organisation of Working Time Act 1997 deals with the entitlement to holiday pay at the cessation of employment:

Where –

(a)  an employee ceases to be employed, and

(b)  the whole or any portion of the annual leave in respect of the current leave, or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year, or both those years, remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or employer, an amount equal to the pay, calculated at the normal weekly rate, or, as the case may be, an amount proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

On the day that he ceased employment with the respondent, the complainant was entitled to be paid for holidays accrued from the day he commenced until his last day at work, “calculated at the normal weekly rate.”  Based on a minimum entitlement to 20 days’ holidays per year, the complainant was entitled to .38 days for each week of employment.  As he worked for 16 weeks and three days, he was entitled to pay for 6.2 days, equivalent to €908.  In his correspondence to the WRC, this is the amount that the respondent said that the complainant was owed.

I have concluded that this complaint is well founded and I decide that the respondent is to pay the complainant a sum of €2,048 gross in respect of unpaid wages, holiday pay and public holiday pay.  As the complainant has not changed his address, the payment may be sent to him at the address where he lived when he was employed by the respondent.

Non-payment of wages, holiday pay and public holiday pay