ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023801
Parties:
| Complainant | Respondent |
Anonymised Parties | Executive Chef | Hotel |
Representatives | None | Director |
Complaint:
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-00030516-001 | 22/08/2019 |
Date of Adjudication Hearing: 07/12/2020
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as an Executive Chef from 1st November 2018 to 3rd June 2019. He was paid €60,000 per annum. He has claimed that he is owed wages, tips and bonus. Also, the Respondent may not deduct from his wages rent and utility costs. |
Summary of Complainant’s Case:
1) Bonus He stated that he was awarded bonus for the first period and it was agreed that that the cash advances given to him would be deducted from the awarded bonus. He stated that he achieved his target / performance criteria of getting the kitchen up and running. So, the bonus was due. 2) Overtime working of 168 hours He stated that he worked exceptional hours in order to get the operation up and running. He has claimed that he worked at total of 168 hours extra that he was not paid for. He accepts that his contract of employment does not provide for overtime working. 3) Tips He has claimed €300 in unpaid tips. 4) Unpaid wages He has claimed for 3 weeks in unpaid wages. 5) Rent & Utilities He has denied that any rent or utilities are owed. |
Summary of Respondent’s Case:
1) Bonus The Respondent stated that he set three criteria for the achievement of the bonus, there was a gateway whereby the department had to become a profitable operation, Gross Profit, Margin, Payroll costs for the period January to May. These criteria were not met as the monetary kitchen profit figure was not met, so no bonus was due. He gave him a cash advance of €2,100 which is owing. |
2) Overtime working of 168 hours
He stated that the Complainant did not work these hours. He was paid an all-inclusive salary to cover the hours of work.
3) Tips
He has accepted that the Complainant is owed €300 as claimed.
4) Unpaid wages
He accepts that the Complainant is owed three weeks’ pay.
5) Rent & Utilities
He has stated that he agreed to cover the Complainant’s rent for the first six months and so he now owes May 2019 rent of €900, June 2019 rent of €900 and utilities for Nov 2018 to June 2019 for €807, a total of €2,607.
Findings and Conclusions:
1) Bonus I note the conflict of evidence in this matter. On the balance of probability, I find the evidence of the Respondent more convincing. Therefore, I conclude that the criteria were not met and so no bonus was due. I note the advance payment of €2,100. |
2) Overtime working of 168 hours
I note that the contract of employment states, “This amount (salary of €60,000) will take account of additional hours worked in excess of normal working hours and Sunday working”.
I find that in order to succeed with a claim under the Payment of Wages Act, a claimant has to have a contractual entitlement to the monies claimed.
I find that the Complainant has not established a contractual entitlement to the monies claimed.
3) Tips
I find that it is accepted that the Complainant is owed €300 in unpaid tips.
4) Unpaid wages
I find that the Complainant is owed three weeks pay, amounting to (€60,000 /52*3) €3,461.54.
I note that Sec 5(5) states “Nothing in this section applies to (a) a deduction made by an employer from wages of an employee, or any payment received from an employee where – (i) the purpose of the deduction or payment is the reimbursement of the employer in respect of (1) any overpayment in wages”.
Therefore, I find that the Respondent is entitled to deduct the overpayment of bonus cash advancement of €2,100, leaving a shortfall in wages of €1,361.54 owing.
5) Rent and utilities
I find that these expenses of rent and utilities are not deemed wages in the definition of wages in the Payment of Wages Act, Sec 1 (1) (b) of the Act states, “ the following payments shall not be regarded as wages for the purpose of this definition (1) any payment in respect of expenses incurred by the employee in carrying out this employment.”
Therefore, I find that this matter is not appropriate for me to adjudicate upon. This will have to be a matter to addressed by both parties outside the remit of this hearing.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that this claim was well founded in part only.
I have decided that the Respondent has breached Sec 5 of this act in respect of Nos 3 and 4 above.
I have decided that the Respondent should pay the Complainant (1,361.54 + 300) €1,661.54 within six weeks of the date below.
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Dated: 15-12-2020
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Wages and tips owed |