ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00021951

Parties:

	Complainant	Respondent
Anonymised Parties	A Chef	A Chinese Restaurant

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00028635-001	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00028635-003	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00028635-004	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00028635-007	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028635-009	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028635-010	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00028635-013	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00028635-014	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00028635-015	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00028635-016	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00028635-017	20/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00028635-018	20/05/2019

Date of Adjudication Hearing: 25/07/2019

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41 of the Workplace Relations Act and Section 13 of the Industrial Relations Act, 1969 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

Adjudicator’s Note.

There was some duplication of complaints and some submitted in error.

The following complaints were withdrawn at the hearing;

CA-00026635-003, (duplicates 004), 007, (duplicates 014 and 015), 013 (not pursued), 016, (wrong section of Act), 017 and 018 (both inapplicable).

Summary of Complainant’s Case:

The complainant’s main issue relates to the non-payment of wages in the amount of €1.600.00 which he says is due to him.

He had initially been employed as a delivery driver for the respondent on January 8th but took over food preparation duties in late January 2019, as he had previous experience as a chef.

He provided a detailed submission relating to his patter of work, the wages due to him and what he actually received over the course of the eight weeks to which the complaint relates.

In the first seven weeks the wages due varied between €500 and €700 and fell to €200 in week eight. As noted this left a shortfall of €1,600.00.

He also complains that he did not receive the National Minimum Wage, (CA-00028635-001), worked hours in excess of those permitted (CA-00028635-009), did not receive payment for annual leave or public holidays (CA-00028635-010) and was neither paid the required minimum notice nor had his rights honoured during the notice period (CA-00028635-014 and 015).

Summary of Respondent’s Case:

The respondent disputed the non-payment of wages and the other complaints, but agreed on the hours worked by the complainant and the daily wage contracted to the complainant. He did not offer any employment records, contract or other documentation in evidence.

Findings and Conclusions:

The facts established at the hearing were as follows.

The complainant entered into a contract of employment with the respondent in which he would receive €100.00 net per day for his work as a chef.

His actual pattern of work varied. In the eight-week period he worked five days on four occasions, six on two occasions, seven and two on one week each. This gave rise to total payments due to him of €4,100, the amount of €1,600.00 claimed above remaining outstanding.

On the basis of these figures, the wages agreed to be paid to the complainant exceed the threshold in the National Minimum Wage Act so that complaint fails. (CA-00028635-001)

The respondent was not in a position to offer any evidence of payments to the complainant and it was quite clear that he runs his business with scant regard for the need to keep employment or any records as required by law.

On the other hand, the complainant was a credible witness and I accept his evidence relating to all of the other complaints, which were not persuasively contested by the respondent or indeed in some cases at all.

His complaints relating to excess hours succeeds, his average working week was fifty-seven hours, (CA-00028635-009), he did not receive any leave or holiday pay on termination, and while he did not work on the public holiday that fell within the period he was not paid for it (CA-00028635-010) and was not paid the required statutory minimum notice. (CA-00028635-014).

His complaint under CA-00028635-015 was not pursued.

The evidence adduced at the hearing regarding the complainant’s earnings was expressed in terms of net payments. I can reach no conclusion on whether deductions of income tax and other statutory deductions were made as no records or payslips were provided.

While the Revenue Commissioners have helpfully provided a formula on their website for ‘grossing up’ net wage payments it is not possible to solely rely on this as a person’s allowances etc will not be known to an Adjudicator.

For information, the Revenue formula is to take the net wage amount; thus, net earnings of €100 x 100/51 give a gross wage of €196, The complainant worked ten hour shifts and an average of fifty seven hour per week so this estimate, (which is for illustration only) would put his weekly age at €1117.64 (€196.00 multiplied by 5.7 as the average number of days worked in the period.)

However, in my decision below, I have awarded the complainant net sums of the basis that there should be no further deductions from these and the respondent should calculate the gross sums necessary to achieve compliance with Revenue rules and make the necessary returns but ensure that the complainant receives the amounts awarded.

I have calculated the gross daily/weekly wage of the complainant and used his average weekly hours at fifty-seven per week.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I uphold complaint CA-00028635-004 (unpaid wages) and award the complainant net wages in the amount of €1,600.

(The following awards are not subject to statutory deductions)

I uphold complaint CA-00028635-009 (excess hours) and award the complainant €1,000.00

I uphold complaint CA-00028635-010 (leave) and award the complainant €1,500.00

I uphold complaint CA-00028635-014 (minimum notice) and award the complainant €1,000.00.

I do not uphold complaints CA-00028635-001 and 015 and they are dismissed.

All other complaints were withdrawn at the hearing.

Dated: 24th September 2019

Workplace Relations Commission Adjudication Officer: Pat Brady

Key Words:

Payment of Wages, Record keeping,