Complainant

Respondent

Anonymised Parties

Kitchen Porter

Restaurant

Representatives

Citizens Information

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029929-001

29/07/2019

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

CA-00029929-002

29/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00029929-003

29/07/2019

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

CA-00029929-004

29/07/2019

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

CA-00029929-006

29/07/2019

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

CA-00029929-007

29/07/2019

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

CA-00029929-008

29/07/2019

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

CA-00029929-009

29/07/2019

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

CA-00029929-010

29/07/2019

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

CA-00029929-011

29/07/2019

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

CA-00029929-012

29/07/2019

The Complainant was employed as a Kitchen Porter from 22nd March 2019 until 23rd June 2019 when his employment was terminated by the Respondent.

The Complainant submits that when he was dismissed from his employment he was not given any notice period or payment in lieu.

The Complainant submits that he was employed for 13 weeks and 2 days and, therefore, is entitled to one week’s notice or payment in lieu which amounts to €470.40 gross (48 hours @ €9.80 per hour).

At the hearing, the Respondent accepted that the Complainant had not been paid notice.

Relevant Legislation

Section 4 of the Minimum Notice and Terms of Employment Act provides as follows:

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

( a) if the employee has been in the continuous service of his employer for less than two years, one week.”

Findings

In light of the Respondent’s acknowledgement that it has not paid notice to the Complainant, I find that the Respondent has contravened section 4 of the Act and, accordingly, that this complaint is well founded.

I find that that the Respondent has contravened section 4 of the Act. I direct the Respondent to pay the Complainant one week’s notice of €470.40 gross in compensation for the loss sustained by the Complainant by reason of the contravention.

The Complainant submits that he was not provided with a contract or statement of terms.

At the hearing, the Respondent accepted that it did not provide the Complainant with statement of his Terms and Conditions.

This complaint has been referred under Section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of Section 3 of the Act.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 provides:

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment …”

In light of the Respondent’s acknowledgement that it did not furnish the Complainant with a statement of his terms and conditions, I find that the Respondent has contravened Section 3 of the Act and that this complaint is well founded.

I find that the Respondent has contravened Section 3 of the Terms of Employment (Information) Act 1994, and that the complaint is well founded. I order the Respondent to pay to the Complainant compensation in the amount of €942 being the equivalent of approximately two weeks’ pay in respect of the contravention.

The Worker submits he did not have 12 months’ service with the Employer prior to his dismissal.

The Worker submits that he wished to take this complaint under Section 8 of the Unfair Dismissals Acts 1977-2016, as amended by section 27 of the Safety, Health and Welfare at Work Act, 2005 but was prevented by doing so by the WRC’s online complaint referral system.

The Worker submits that he was penalised by the Employer within the meaning of section 27 of the Safety, Health and Welfare at Work Act and that he does not need 12 months service to brining a claim under section 8 of the Unfair Dismissals Acts.

The Worker submits that he was dismissed as a result of his complaint to his manager regarding health and safety concerns.

The Worker submits that he was required by his manager to go down to the basement of the restaurant premises and bail buckets of dirty water containing old food, bleach and grease which he would then carry to, and pour into, a toilet on the first floor.  

The Worker submits that he was concerned that he might slip and also about the dangers posed by mouldy food, bleach and grease.

The Worker submits that he was not given protective clothing to wear while carrying out this duty.

The Worker submits that he was required to carry out this duty due to a broken pump which should have been fixed by the Employer.

The Worker submits that on the day of his dismissal, he had become tired of carrying the buckets of dirty water up two flights of stairs and instead decided to dispose of the water via a drain in the yard to the rear of the restaurant premises.

The Worker submits that, following the disposal of the water in the drain, he was confronted by a manager of the Employer company. When the Worker complained that he should not be required to carry out this duty, he was dismissed on the spot.

The Worker submits that he was not given a decision regarding his dismissal nor was he given any opportunity to appeal that decision.

At the hearing, the Worker confirmed that a meeting had taken place between the Employer, the Worker and the Head Chef. He said that he did not get any warning that his behaviour could lead to his dismissal.

The Employer submits that there was a rainwater pump to the rear of the premises which prevents flooding of the premises.

The Employer submits that the Worker damaged the pump by pouring waste water into it. According to the Employer, this led to issues with the management company and could have led to the Employer losing its lease.

The Employer submits that its next door neighbour told it that the Worker was pouring waste water outside. The Employer submits that the Worker had admitted to the behaviour.

The Employer submits that he had a number of meetings with the Worker about his general behaviour and that he asked the Head Chef, who was the same nationality as the Worker, to tell the Worker not to put waste water in the pump and to give him a verbal warning that the continuation of such behaviour could lead to dismissal.

Preliminary Issue

This dispute has been submitted pursuant to the Industrial Relations Act, 1969. The Worker has less than one year’s continuous service with the Employer.   The Worker’s representative indicated that the Worker wished to take the complaint under Section 8 of the Unfair Dismissals Acts, 1977-2016, as amended by Section 27 of the Safety, Health and Welfare at Work Act, 2005 but that the online WRC complaint referral form prevented him from doing so.

Section 2 (1)(a) of the Unfair Dismissal Acts stipulates that:

“Except in so far as any provision of this Act otherwise provides, this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him”

Section 6 of the Unfair Dismissal Acts provides for exceptions to the provisions of Section 2(1)(a) including, inter alia, dismissal for trade union membership/activity; pregnancy or related matters; exercise of rights under Maternity Protection Acts 1994-2004; exercise of rights under Adoptive Leave Acts 1995 -2005; exercise of rights under the Parental Leave Acts 1998 -2006; upholding the National Minimum Wage Act 2000; exercise of rights under the Carer’s Leave Act 2001; and, having made a protected disclosure.

Section 6 of the Acts, however, does not provide for an explicit exception to the provisions of Section 2(1)(a) for penalisation, including dismissal, pursuant to Section 27 of the Safety, Health and Welfare at Work Act, 2005.

Hedigan J addressed this matter in Nityendra Sharma and Udaiveer Saharanv Employment Appeals Tribunal [2010] 21 E.L.R. 262where he found:

“The grounds for presumed unfair dismissals have grown over the years through a series of amending legislation to the Act of 1977. It is expressly stated in several of the amending pieces of legislation that the one year's continuous service requirement, as set down in s.2(1)(a) of the Act of 1977, is not applicable to particular grounds for presumed unfair dismissal.

………………..

In contrast, s.27 of the Act of 2005 makes no mention of whether s.2(1)(a) of the Act of 1977 is applicable or not. I am satisfied, having regard to the expressio unius est exclusio alterius principle that the one year's continuous service requirement must apply. This court may not read into the Act of 1977 a specific provision lifting the service requirement specified in s.2(1)(a) in circumstances where the legislature has expressly stated in other enactments that the requirement was not to apply in respect of other grounds for dismissal but has not done so therein in respect hereof. It seems to me for these reasons that the respondent rightly concluded that it did not have jurisdiction to hear the applicants' claims.

………………..

In summary, I am satisfied that employees who pursue claims under the Unfair Dismissals Acts 1977–2007 for penalisation, as defined in s.27(1) of the Act of 2005 must have one year's continuous service with the employer who dismissed them.”

Accordingly, I find that the Worker does not have the requisite service to bring a complaint under the Unfair Dismissals Acts and, therefore, that this complaint is before me as a trade dispute pursuant to section 13 of the Industrial Relations Act, 1969.

Whilst an employee with less than twelve months’ service is not covered by the Unfair Dismissals Acts, this does not negate their entitlement to fair procedures in relation to grievance and disciplinary matters.

In a Labour Court determination concerning an employee of the Park Hotel Kenmare (LCR21798) who was dismissed while on probation, the Court found that:

“Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.

… The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

It follows, therefore, that before a decision is made to dismiss an employee, an employer should first tell the employee of the respects in which he or she is failing to do the job adequately, warn the employee of the possibility of dismissal on this ground and give the employee an opportunity of improving their performance.

At the hearing, the Employer said that he had a number of meetings with the Worker about his general behaviour and that he had asked the Head Chef, who was the same nationality, and spoke the same language, as the Worker to explain to the Worker not to put waste in the pump.

At the hearing, the Worker confirmed that a meeting had taken place between himself, the Employer and the Head Chef. He said that this was the only meeting that had taken place and disputed the Employer’s assertion that more than one meeting had taken place.

I note the differing positions of the parties as to whether the Worker was aware that the Employer had issues with his performance.

The Employer was unable to provide any proof to support its contention that fair and proper procedures were followed in this case.

I find that this dispute is well founded and I recommend that the Employer pays the Worker redress of €500.

The Complainant submits that he only received one payslip from the Respondent dated 7th April 2019.

In his submission to the WRC, the Complainant included copies of payslips which were provided to his representative in response to a data access request.

The Complainant submits that these payslips extend to 21st July 2019 even though the Complainant’s employment with the Respondent finished on 23rd June 2019.   The Complainant submits that he made an error in one part of the complaint form in which he incorrectly stated his date of termination as 23rd July 2019 whereas in actual fact it was 23rd June 2019 as stated elsewhere on the complaint form.

The Complainant asserts that he did not work for the Respondent at any time after 23rd June 2019.

The Complainant submits that the Respondent accepted the erroneous termination date and produced payslips to reflect this.

Following the hearing, the Respondent submitted copies of payslips and timesheets to the WRC.   The Complainant submits that the documentation provided to his representative in response to the data access request is not consistent with the documentation provided to the WRC post-hearing. The Complainant also submits that none of the documentation provided by the Respondent either pre- or post-hearing reflects the Complainant’s own record of the hours he worked during his employment with the Respondent and upon which he has based his submission.

In relation to each specific complaint submitted pursuant to the Payment of Wages Act, the Complainant submits as follows:

CA-00029929-006

The Complainant submits that he worked a total of 51 hours in the week of Monday 15th April to Sunday 21st April 2019. The Complainant was paid the minimum wage of €9.80 per hour and as such should have been paid €499.80 gross but only received €372 cash in hand for the week.

The Complainant submits that he is owed €127.80 gross pay for the week. 

CA-00029929-007

The Complainant submits that he worked a total of 46 hours in the week of Monday 29th April to Friday 3rd May 2019. The Complainant was paid the minimum wage of €9.80 per hour and as such should have been paid €450.80 gross but only received €355 for the week.

The Complainant submits that he is owed €95.80 gross pay for the week.

CA-00029929-008

The Complainant submits that he worked a total of 46 hours in the week of Monday 27th May to Sunday 2nd June 2019. The Complainant was paid the minimum wage of €9.80 per hour and as such should have been paid €450.80 gross but only received €360 net pay which is equivalent to €368.54 gross.

The Complainant submits that he is owed €82.26 gross pay for the week.

CA-00029929-009

The Complainant submits that he worked a total of 32 hours in the week of Monday 10th June to Sunday 16th June 2019. The Complainant was paid the minimum wage of €9.80 per hour and as such should have been paid €313.60 gross but only received €288 net pay cash in hand for the week.

The Complainant submits that he is owed €25.60 gross pay for the week.

CA-00029929-011

The Complainant submits that he worked a total of 64 hours in the week of Monday 8th April to Sunday 14th April 2019. The Complainant was paid the minimum wage of €9.80 per hour and as such should have been paid €627.20 gross but only received €231 net pay cash in hand for the week.

The Complainant submits that he is owed €334.29 net pay for the week.

The Respondent rejects the Complainant’s complaints and asserts that if the Complainant was owed any payment, he would not have waited so long for payment.

The Respondent submits that its former Head Chef was responsible for compiling the completed hours for each member of the kitchen staff and was also sent payslips for each employee for each week.

Relevant Legislation

Section 5(6)(a), of the Payment of Wages Act, cited below, provides that the under-payment of wages which are properly payable to an employee by an employer shall be treated as a deduction unless it was due to a computational error:

“ 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), ..…

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

I will investigate each specific complaint submitted pursuant to the Payment of Wages Act in turn.   The Complainant has provided both gross and net figures in the evidence adduced in support of his complaints. Where the Respondent has not provided appropriate records to rebut the complaints, I have accepted the figures put forward by the Complainant.

CA-00029929-006

I note that the Complainant submits that he worked a total of 51 hours in the week of Monday 15th April to Sunday 21st April 2019. The Complainant contends that he should been paid €499.80 gross for the week but only received €372 cash in hand. The Complainant asserts, therefore, that he is owed €127.80 gross pay for the week. 

I note that the payslip provided by the Respondent to the Complainant’s representative, on foot of a data access request, shows that the Complainant worked 37 hours in the week.   However, the payslip and timesheet submitted by the Respondent post-hearing, show that the Complainant worked 46.5 hours that week.

The lack of consistency between the documentation provided by the Respondent pre- and post- hearing causes me to question the veracity of that documentation. Accordingly, I find that the Respondent cannot rely on its documentation to support its contention that the Complainant was paid all of the wages that were due to him for the week in question.

CA-00029929-007

I note that the Complainant submits that he worked a total of 46 hours in the week of Monday 29th April to Friday 3rd May 2019. The Complainant contends that he should been paid €450.80 gross for the week but only received €355. The Complainant asserts, therefore, that he is owed €95.80 gross pay for the week.  

I note that the payslip provided by the Respondent to the Complainant’s representative, on foot of a data access request, shows that the Complainant worked 42 hours in the week ending 5th May 2019. However, the payslip and timesheet submitted by the Respondent post-hearing in respect of the same pay period, show that the Complainant worked 41 hours that week.

The lack of consistency between the documentation provided by the Respondent pre- and post- hearing causes me to question the veracity of that documentation. Accordingly, I find that the Respondent cannot rely on its documentation to support its contention that the Complainant was paid all of the wages that were due to him for the week in question.

CA-00029929-008

I note that the Complainant submits that he worked a total of 46 hours in the week of Monday 27th May to Sunday 2nd June 2019. The Complainant contends that he should been paid €450.80 gross for the week but only received €360 net pay which is equivalent to €368.54 gross. The Complainant asserts, therefore, that he is owed €82.26 gross pay for the week.  

I note that the payslip provided by the Respondent to the Complainant’s representative, on foot of a data access request and the payslip provided by the Respondent after the hearing, show that the Complainant worked 41.5 hours in the week.   However, from the timesheet submitted by the Respondent post-hearing it is impossible to calculate the number of hours worked by the Complainant in that pay period as the finishing time for Friday 31st May has been scribbled out and replaced with a different finishing time and no finishing time is shown for Sunday 2nd June.

The incompleteness of the time-sheet provided post-hearing causes me to question the veracity of that documentation. Accordingly, I find that the Respondent cannot rely on its documentation to support its contention that the Complainant was paid all of the wages that were due to him for the week in question.

CA-00029929-009

I note that the Complainant submits that he worked a total of 32 hours in the week of Monday 10th June to Sunday 16th June 2019. The Complainant contends that he should have been paid €313.60 gross but only received €288 net pay cash in hand for the week and is, therefore, owed €25.60 gross pay for the week.

I note that the payslip provided by the Respondent to the Complainant’s representative, on foot of a data access request and the payslip provided by the Respondent after the hearing, show that the Complainant worked 33 hours in the week.   However, from the timesheet submitted by the Respondent post-hearing it is impossible to calculate the number of hours worked by the Complainant in that pay period as most days do not show a finishing time and some of the start times have been scribbled out and replaced with alternative figures.

The incompleteness of the time-sheet provided post-hearing causes me to question the veracity of that documentation. Accordingly, I find that the Respondent cannot rely on its documentation to support its contention that the Complainant was paid all of the wages that were due to him for the week in question.

CA-00029929-011

I note that the Complainant submits that he worked a total of 64 hours in the week of Monday 8th April to Sunday 14th April 2019. The Complainant contends that he should have been paid €627.20 gross but only received €231 net pay cash in hand for the week and is, therefore, owed €334.29 net pay for the week.

I note that the payslip provided by the Respondent to the Complainant’s representative, on foot of a data access request and the payslip provided by the Respondent after the hearing, show that the Complainant worked 49 hours in the week.   However, from the timesheet submitted by the Respondent post-hearing it is impossible to calculate the number of hours worked by the Complainant in that pay period as there is no finishing time shown for either Monday 8th April or Tuesday 9th April.

The incompleteness of the time-sheet provided post-hearing causes me to question the veracity of that documentation. Accordingly, I find that the Respondent cannot rely on its documentation to support its contention that the Complainant was paid all of the wages that were due to him for the week in question.

CA-00029929-006

I find that this complaint is well founded and I direct the Respondent to pay the Complainant redress of €127.80 gross subject to any lawful deductions.

CA-00029929-007

I find that this complaint is well founded and I direct the Respondent to pay the Complainant redress of €95.80 gross subject to any lawful deductions.

CA-00029929-008

I find that this complaint is well founded and I direct the Respondent to pay the Complainant redress of €82.26 gross subject to any lawful deductions.

CA-00029929-009

I find that this complaint is well founded and I direct the Respondent to pay the Complainant redress of €25.60 gross subject to any lawful deductions.

CA-00029929-011

I find that this complaint is well founded and I direct the Respondent to pay the Complainant redress of €334.29 net.

The Complainant submits that he was not paid any holiday pay for the period of his employment.

The Complainant submits that he worked 460 hours while working for the Respondent.

The Complainant submits that pursuant to section 19(1)(c) of the Organisation of Working Time Act he is paid 36 hours holiday pay (8% of 460 hours) at €9.80 which amounts to €360.64.

At the hearing, the Respondent accepted that the Complainant had not been paid holiday pay

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

“(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be paid paid annual leave (in this Act referred to as “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 in 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):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

The Complainant worked for 13 week and 2 days for the Respondent. From the documentation provided by the parties, I have calculated the total number of hours worked by the Complainant in that period. In light of my findings on the Payment of Wages complaints above that I could not rely on the accuracy of the Respondent’s records, I have relied on the Complainant’s submissions in support of his payment of wages complaints.   In respect of the weeks where the hours worked were not contested by the Complainant and, therefore, he did not make submissions in relation to same, I have relied on the records provided by the Respondent.

I find that the Complainant worked a total of 541.5 hours during his employment with the Respondent. I find, therefore, that in accordance with section 19(1)(f) of the Organisation of Working Time Act, he is entitled to paid annual leave of €424.54 (8% of 541.5 hours @ €9.80 per hour).

I direct the Respondent to pay the Complainant €424.54 for the economic loss in respect of the annual leave.

In addition, I direct the Respondent to pay the Complainant an additional €200 in compensation for breach of his rights under Section 19 of the Act.

CA-00029929-010

The Complainant submits that he worked 64 hours in the week from Monday 8th April 2019 to Saturday 13th April.

CA-00029929-012

The Complainant submits that he worked 51 hours in the week from Monday 15th April 2019 to Sunday 21st April 2019.

The Complainant submits that for both complaints, he is using the four week period of 22nd March to 21st April 2019 as the reference period in accordance with Section 15 of the Organisation of Working Time Act.

The Complainant submits that during the reference period he worked a total of 212 hours and that, therefore, the average weekly hours worked is 53 (212/4) which is in breach of section 15(1) of the Act.

The Respondent rejects the complainants.

Relevant Legislation

Section 15 of the Organisation of Working Time Act requires that:

“(1) An employer must 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 [3, points (a) to (e)] 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.”

Section 15(1)(a) of the Organisation of Working Time Act provides that the reference period to be used to calculate the weekly hours for an employee such as the Complainant is 4 months and not 4 weeks as proposed by the Complainant.

The Complainant worked for 13 week and 2 days for the Respondent and, therefore, I have taken the entire period of the Complainant’s employment into account when calculating the average working week. From the documentation provided by the parties, I have calculated the total number of hours worked by the Complainant in that period. In light of my findings on the Payment of Wages complaints above that I could not rely on the accuracy of the Respondent’s records, I have relied on the Complainant’s submissions in support of his payment of wages complaints.   In respect of the weeks where the hours worked were not contested by the Complainant and, therefore, he did not make submissions in relation to same, I have relied on the records provided by the Respondent.

I find that the Complainant worked a total of 541.5 hours during his employment with the Respondent. By dividing the total hours worked by 13 weeks and 2 days, I find that the Complainant did not work an average week in excess of 48 hours during that period.

Accordingly, I find that these complaints are not well founded.

CA-00029929-010

I find that this complaint is not well founded.

CA-00029929-012

I find that this complaint is not well founded.

Payment of Wages – incomplete payment; Organisation of Working Time – annual leave and excessive hours; Unfair Dismissal – penalisation under Safety, Health and Welfare at Work Act – less than 12 months service; Terms and Conditions; Minimum Notice.