Complainant

Respondent

Anonymised Parties

A Chef

A Hotel

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-00028748-001

30/05/2019

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

CA-00028748-002

30/05/2019

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

CA-00028748-004

30/05/2019

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

CA-00028748-005

30/05/2019

The Complainant was employed by the Respondent from 30/5/2017 to 28/4/2019. He referred four complaints for adjudication to the WRC pursuant to   the Payment of Wages Act   [1991-2019] and the Organisation of Working Time Act [1997-2017]. These complaints were listed under ADJ-00021886. The Complainant had also made another complaint to the WRC which was listed separately. All cases were scheduled for hearing on the 25th November, 2019 and I heard the latter separate complaint first. The Respondent’s HR Manager attended this first hearing on behalf of the Respondent but advised that she was unaware of case ADJ-00021886. I checked the correspondence and advised the HR Manager that the Respondent had been notified by letter of the 21st October, 2019 that case ADJ-00021886 was scheduled for hearing on 25 November, 2019. Notwithstanding, in response to the representations of the Respondent’s HR Manager, I agreed to a short adjournment to allow her check out matters with the Respondent. However, on resumption after the adjournment, the HR Manager did not return to the hearing room at all. The Complainant’s representative expressed displeasure at the failure of the Respondent to return to the hearing.

In the circumstances, I proceeded to hear the below complaints under ADJ-00021886.

The Complainant submitted that he did not receive payment for his contractual notice period of three months. The Complainant stated that he wrote a letter of resignation on the 1st April, 2019 citing the 28th April as the date of resignation but that following a request from the General Manager to work his contractual notice period, he changed his resignation date to the 6th July, 2019. The Complainant stated that after that he was called to a meeting with the General Manager and the HR Manager and informed that the Respondent had changed its mind and that he would be let go after two weeks. The Complainant then sent an email to the General Manager saying that if requested he would leave his employment in April 2019 but that he was seeking payment for the full contractual notice period. The Complainant left the Respondent’s employment on the 21st April, 2019 and was paid up to the 28th April.

The Complainant stated that he was entitled to payment in lieu of notice in respect of his three months contractual notice period and that the payment up to the 28th April also included pay for time in lieu.

Findings and Conclusions:

Section 1 of the Payment of Wages Act, [1991-2019] defines wages as:

“any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”.

The statutory notice periods are set out in the Minimum Notice and Terms of Employment Act [1973-2017] which specifies at paragraph 4(2)(a) that “if the employee has been in the continuous service of his employer for less than two years, one week”.

I have considered the oral and written submissions in this matter. At the hearing I requested copy of the Complainant’s contract of employment to be furnished to the WRC on or before 9 December, 2019. This was not received.

In my view I do not have jurisdiction in relation to the contractual notice period. The Complaint tendered his resignation by letter dated the 1st April 2019 and he was paid up until the 28th April – one week after he left the Respondent’s employment. In the circumstances, I deem that he received pay for the statutory notice period of one week based on his length of service.

The Complainant submitted that he worked more than 39 hours every week and generally on average 50 hours per week and that his break times were deducted from his salary. He stated that his extra hours should have been recorded as time in lieu as were “recorded a number of times in the past” and that he was granted three days time in lieu in March, 2019. In the course of his submissions the Complainant also said that he would have got paid for time in lieu as opposed to being granted time in lieu.

The Complainant stated that on the day of his resignation he asked about his entitlements and that he was advised by the Respondent’s General Manager that he was not entitled to any overtime but that he was due three weeks time in lieu. The Complainant stated that he requested an explanation as to how this was calculated as his clocking time stated that he did alot of overtime – this explanation was refused according to the Complainant. The Complainant has estimated that he worked an average of 10 extra hours per week and that over 99 weeks @€22.18/hour he was due €21,958.20.

The Complainant also stated that his contract provided for a bonus payment and in this regard that he was owed €6000.

Findings and Conclusions:

Section 1 of the Payment of Wages Act, [1991-2017] defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including-

a)      any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and….”.

Section 15 of the Organisation of Working Time Act [1997-2019] provides that “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

b)      6 months – ………..,          

or

c)       such length of time as, in the case of an employee employed in an activity mentioned in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection”.

Section 25 the Organisation of Working Time Act [1997-2019] provides that an employer is required to keep records of an employee’s hours of work and the manner as to how this is to be done is prescribed in SI 473 of 2001 - Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001. As a consequence the employer carries the statutory burden of proving compliance with the obligation to keep records of employees hours worked.

I asked the Complainant to provide a copy of his contract of employment and to specify in more particular terms the additional hours worked for which he was not paid allowing for all time in lieu he was granted and/or paid. The Complainant agreed to furnish the contract and further details in relation to the particulars of his claim on or before 9 December, 2019. This was not received.

Having considered the oral and written submissions in this matter, I accept that the Complainant was due some time in lieu in respect of additional hours worked. At the time of his resignation the Complainant claimed there was discussion between him and the Respondent in relation to a period of three weeks time in lieu. In addition, I note the following sentence in an email from the Respondent’s HR Manager to the Complainant of 4/4/2019 – “Can you please forward me the lieu time you believe you are owed as per your records, so I can compare them to ours”.

In all the circumstances, I decide this complaint is partly well founded.

The Complainant submitted that he was rostered to work each week for more than forty eight hours but that he did not get paid for any hours over and above 39 hours. The Complainant stated that his contract required him to work such hours as were necessary.

Section 15 of the Organisation of Working Time Act [1997-2019] provides that “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 –

d)      4 months, or

e)       6 months – ………..,          

or

f)        such length of time as, in the case of an employee employed in an activity mentioned in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection”.

The Complainant agreed to furnish a statement on or before 9 December, 2019 clarifying the reference period and the hours he was not paid for, whilst allowing for payments he received for time in lieu and/or time in lieu. This was not received.

Findings and Conclusions:

I have considered the oral and written submissions furnished to me in relation to this matter. Based on the uncontested evidence of the Complainant at the adjudication hearing, the email from the HR Manager of 4/4/2019 and the discussion between the Complainant and the Respondent about time in lieu, I am satisfied that there were at least some weeks where the Complainant was required to work in excess of forty eight hours. I am also taking into account that the onus was on the Respondent to keep proper records of hours worked. For these reasons I decide this complaint is partly well founded.

The Complainant stated that he did not get paid for all public holidays. He stated that he was given a bank holiday as a day off on the weeks when he worked 39 hours over four days or worked more than 39 hours.

Findings and Conclusions:

Section 21 of the Organisation of Working Time Act [1997-2019] provides that an employee, in respect of a public holiday, is entitled to whichever one of the following his/her employer determines:

a)      “a paid day off on that day,

b)      a paid day off within a month of that day,

c)       an additional day of annual leave,

d)      an additional day’s pay”

The Complainant did not specify any particular bank holiday due to him. The Complainant agreed to furnish further details in relation to the particulars of his claim on or before 9 December, 2019. This was not received.

Having considered the oral and written submissions I decide this complaint is not well founded.

·         CA-00028748-001

In accordance with Section 6 of the Payment of Wages Act, [1991-2019] and Section 41 of the Workplace Relations Act, [2015] I decide that this complaint is not well founded for the reasons outlined above.

·         CA-00028748-002

In accordance with Section 6 of the Payment of Wages Act, [1991-2019] and Section 41 of the Workplace Relations Act, [2015] I decide that this complaint is partly well founded. I award the Complainant payment in lieu for three weeks. Based on the Complainant’s pay slip of 25/4/2019 this amounts to €2,596.14 gross which is subject to the standard statutory deductions.

·         CA-00028748-004

For the reasons outlined, I have decided this complaint is partly well founded. Section 27 of the Organisation of Working Time Act [1997-2019] provides that an Adjudicator under Section 41 of the Workplace Relations Act, [2015] shall:

a)      “Declare that the complaint was or, as the case may be, was not well founded,

b)      Require the employer to comply with the relevant provision,

c)       Require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment”.

I award €2000 compensation for the breach of Section 15 of the Organisation of Working Time Act [1997-2019].

·         CA-00028748-004

For the reasons outlined, I have decided this complaint is not well founded.