Complainant

Respondent

Anonymised Parties

A Head Chef

A hotel

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00024273-001

19/12/2018

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

CA-00024273-002

19/12/2018

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

CA-00024273-003

19/12/2018

The complainant alleges that he did not receive complete terms and conditions of employment and did not receive a premium for Sunday working. In addition, his contract required him to work 50 hours per week

The Complainant commenced work with the respondent on 19th June 2018 as Head Chef and resigned on 30th August 2018. His contract of employment did not comply with the Terms of Employment (Information) Act 1994 – 2014 as it did not contain the terms required under that Act. The complainant did not receive compensation for working on Sundays. He worked every Sunday during her period of employment. The contract given to the complainant stated weekly working hours of 50 per week which is in breach of the Organisation of Working Time Act.

The Claimant and the Claimant’s wife worked for the Respondent prior to establishing their own hotel in or around 2010. Upon the winding up of the Claimant’s own hotel business, the Respondent offered the Claimant employment as a Head Chef. The Claimant requested that the Respondent also offer work to his wife. As there had previously been a good working relationship between the Claimant and Respondent, the Respondent offered the Claimant and the Claimant’s wife work.

The Claimant declined the standard statement of main terms ordinarily offered to employees. The Claimant stated his preference for setting out his own terms and in light of the prior professional relationship between Claimant and Respondent and the Claimant’s extensive knowledge and experience as an employer, the Respondent agreed to same. In particular, the Claimant specified that he would work Wednesday to Sunday only as this would facilitate the Claimant studying for a Masters Degree and attending college on each Monday and Tuesday.

The Claimant specified that he wished to work for 50 hours per week at a rate of €20.00 per hour. In light of the Claimant’s senior role and extensive experience, he was not subject to strict supervision in the completion of these hours. As the Claimant worked a highly regular working week it was understood by both Claimant and Respondent that the rate of pay for the Claimant was inclusive of statutory entitlement, including Sunday Premium.

The Claimant states; “I was not aware that I was entitled to reasonable compensation for Sunday work until I attended the Citizens Information Centre upon termination of my employment.” This is unlikely, given the Claimant’s many years working in the hotel industry and as the owner and operator of his own hotel.

The Complainant was not provided with a statement in writing compliant with s.3 Terms of Employment (Information) Act 1994.       In Philmic Ltd. t/a Premier Linen Services v. Petraitis (TED1616) the Labour Court held:

The Court finds that the Respondent was in breach of the Act at Section 3(g) and 3(ga). No submission has been made to the court to the effect that the appellant suffered any detriment as a result of these breached. The Court measures the compensation amount which is just and equitable having regard to all the circumstances of this case as being nil.

The Complainant in Philmic appealed to the High Court where it was held:

The Labour Court heard all the evidence from the Appellant and the Respondent. Its finding was to uphold the claim of the Respondent in the more substantial matters that it had provided substantial information to the appellant by way of a contract of employment which the appellant signed and an additional Employee Handbook which was available to him and which he acknowledged having received and read. The compensation to be awarded to the Appellant was a matter for the Labour Court.

The High Court decision in Philmic is authority for the proposition that the complainant can be awarded zero compensation notwithstanding a finding that there was a breach of the 1994 Act.

In Irish Water v. Hall (TED161) it was held by the Labour Court that:

No submission has been made to the Court to the effect that the Appellant suffered any detriment as a result of these breaches. The Court measures the compensation amount which is just and equitable having regard to all of the circumstances as being nil.

It is for the Complainant to establish what, if any, harm resulted to the Complainant as a result of the failure of the Respondent to provide a statement in writing compliant with s.3 1994 Act.

The Claimant worked a five day week from Wednesday to Sunday. It was agreed between the Claimant and Respondent that this was inclusive of all statutory entitlements, including Sunday Premium

Weekly Working Hours

Section 15 of the Organisation of Working Time Act 1997 stipulates

15.—(1) An employer shall 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…..

While the contract given by the respondent to the complainant stated the weekly working hours to be 50 because the complainant was employed for less than 4 months then it is clear that the respondent did not permit him to work more than the permitted hours for more than the minimum period stipulated in the Act and therefore this complaint is not well founded.

Sunday Working

Section 14 of the Organisation of Working Time Act 1997 stipulates

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

The respondent did not give the complainant a copy of the terms and conditions relating to his employment and therefore could not have made specific provision for a Sunday working premium. This complaint is therefore well founded.

Terms and Conditions

The respondent acknowledges that he did not furnish the complainant with the complete terms and conditions of his employment as required under the Terms of Employment (Information) Act, 1994 and therefore this complaint is well founded.

The complaint in relation breaches of the Organisation of Working Time Act 1997 in relation to Sunday working is well founded and I order the respondent to pay the complainant;

the sum of €700 in respect of the failure to pay the complainant a Sunday premium;

The complaint in relation breaches of the Terms of Employment (Information) Act, 1994 is well founded and I order the respondent to pay the complainant €200 in compensation.

Terms and conditions. Organisation of Working Time Act – weekly hours and Sunday premium