Complainant

Respondent

Anonymised Parties

A Chef

A Bar /Restaurant

Representatives

Self-Representative

No Appearance

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-00034055-001

29/01/2020

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

CA-00034055-002

29/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012

CA-00034055-003

29/01/2020

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

CA-00034055-004

29/01/2020

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

CA-00034055-005

29/01/2020

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

CA-00034055-006

29/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00034055-007

29/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00034055-008

29/01/2020

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

CA-00034055-009

29/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00034055-010

29/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034055-011

29/01/2020

The Complainant is a Chef who commenced employment with the Respondent in or around July 2018. His last day of employment was on 5 October 2019. His normal working week was Monday – Friday. The claim form was first lodged on the 29 January 2020 with an updated claim form lodged on 20 February 2020.

The Complainant confirmed his weekly rate of pay received was €490 per week and worked full time at 40 hours per week.

There was no appearance on behalf of the Respondent after waiting a reasonable time for the hearing to begin. Upon review of the file it was noted correspondence was received from the Respondent’s Accountant who requested a postponement. This was refused and acknowledged by the Respondent’s Accountant.

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

CA-00034055-001

The Complainant gave evidence that he did not receive any additional payment for working on Sundays. He stated that he worked four Sundays in the year to cover while the Head Chef was on annual leave.

He raised the issue with the Respondent, but it remained unresolved.

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

CA-00034055-002

The Complainant stated he was owed monies from failure to pay annual leave and days work in lieu at the end of his employment. The Complainant gave evidence that he earned a weekly wage of €490 per week for 40 hours worked.

3.       Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012

CA-00034055-003

The Complainant confirmed this claim was made in error and withdrew it at the hearing.

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

CA-00034055-004

The Complainant stated he had accrued lieu days by way of compensation for working public holidays throughout his employment. He stated that he noted these dates on the kitchen calendar which a photograph of same was presented at the hearing. The Complainant described that this calendar was used to record annual leave and placed in the kitchen for everyone to see.

At no stage was an issued raised about these lieu days highlighted on the calendar prior to the day before his annual leave was due to commence. Nor was he paid for working these days.

The Complainant gave evidence that he had accrued the following public holidays:

2018 – July, August, October, Christmas Day and St Stephen’s Day

2019 – New Year’s Day, St Patrick’s Day, Easter Monday, May, June and August

As outlined under the above claim, the Complaint left his work and did not return, nor did he receive payment for these lieu days on either of the following two pay days or since the date he left his employment

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

CA-00034055-005

The Complainant gave evidence that he had planned a trip aboard to celebrate his birthday in October 2019 for a number of weeks and noted his leave request on the kitchen calendar. A photo of this calendar was produced in evidence noting dates marked from 5 – 22 October 2019. He gave evidence that he requested 12 days off, made up of 6 annual leave and 6 lieu days, several months in advance to ensure the dates did not clash with his colleagues. No issues was raised by the Respondent as regards this time off until the day he was finishing before he was due to beginning his annual leave on 6 October 2019. At approximately 30 mins before his shift was due to finish, the Head Chef presented him with an envelope with a list of the dates the Respondent refused to pay him for. A copy of these dates was not provided to the Complainant. He gave evidence that he responded by stating, “if he is not going to pay me there is no point carrying on my employment here. “. At this point, the Complainant left his employment and did not return. He gave evidence that he did not received payment for his annual leave accrued on what would have been his pay days of 11 October 2019 or 18 October 2019.

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

CA-00034055-006

As outlined under the above claims, the Complaint left his work and did not return, nor did he receive payment for the public holidays he worked.

7.       Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00034055-007

The Complainant confirmed this claim was made in error and withdrew it at the hearing.

8. Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00034055-008

The Complainant confirmed this claim was made in error and withdrew it at the hearing.

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

CA-00034055-009

The Complainant stated he requested a contract from the owner of the Respondent, but he just shrugged his shoulders and never produced a contract.

The Complainant seeks compensation.

10. Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00034055-010

The Complainant gave evidence of the conditions of the workplace. He stated that he would raise these issues with the Head Chef, but nothing was done to rectify. He clarified that that he did not raise these issues with his employer directly.

The Complainant seeks compensation for penalisation.

11. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034055-011

The Complainant gave evidence that he did not receive notice pay when he left his employment.

He described the events of 5 October 2019, his last day of employment, with the Respondent as follows; he was due to take his annual leave together with a number of lieu days when the Head Chef came to him with a piece of paper with a list of dates the Respondent refused to pay him for. It was the Complainant’s submission that the Respondent was refusing to pay for any of the lieu days or his annual leave. The Complainant stated to the Head Chef words to the effect that; if the Respondent was not willing to pay him, he wasn’t going to stay. He finished his shift, went on his holiday and upon return found the Respondent had terminated his employment via the Revenue website. He also stated the reason he logged onto the Revenue website was due to the fact he was seeking Social Welfare assistance.

The Complainant seeks compensation.

There was no appearance on behalf of the Respondent.

Preliminary Point

The Complainant commenced work with the Respondent in or around July 2018 and employment was terminated on 5 October 2019. The Complainant Form was first filed with the Workplace Relations Commission on 29 January 2020 with a further Form filed on 20 February 2020.

In relation to the claims pursuant to the Organisation of Working Time Act 1994, Section 27 (4) places a time limit on such claims:

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Consequently, the cognisable period for the purpose of this claim is confined to the 6-month period ending on the date on which the complaint was presented to the Workplace Relations Commission. Therefore, the cognisable period covered by the complaint is the 6-month period from 28 July 2019 to 29 January 2020, i.e. the date when the complaints were first made.

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

CA-00034055-001

The legislation provides:

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

Having heard the Complainant’s evidence that he was paid the same daily rate regardless of the day he worked and that he did not receive a contract of employment in order to allow him to ascertain the breakdown of his hourly wage, I find this complaint is well founded.

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

CA-00034055-002

Section 6 of the Payment of Wages Act 1991 refers to unlawful deduction from wages. No evidence was adduced by the Complainant in respect of any unlawful deduction. Consequently, I find this complaint is not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012

CA-00034055-003

This complaint is not well founded as it was withdrawn at the hearing.

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

CA-00034055-004

Section 21 (1) provides:

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—    

(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:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

Section 22 states:

22.—(1) The rate—

(a) at which an employee is paid in respect of a day off under section 21 , and

(b) of an employee's additional day's pay under that section, shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.

(2) For the purposes of section 21 , time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.

Section 27 (4) provides:

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The Complainant claims that he is due payment for 11 public holidays from the date he commenced employment in July 2018 to the date he left his employment in October 2019.

As outlined above I am limited to the cognisable period is the 6-month period from 28 July 2019 to 29 January 2020. The Complainant left his employment on 5 October 2019. Consequently, the only public holiday that can be consider are August Bank Holiday 2019.

No evidence was provided to rebut the claim from the Respondent.

This complaint is well founded.

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

CA-00034055-005

Section 19 provides:

19.—(1) Subject to the First Schedule   (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to 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 provide oral and documentary evidence that he had requested annual leave on the shared calendar which hung in the kitchen. He advised he had planned a long vacation to celebrate a significant birthday and booked it in advance to ensure he could go.

The Complainant stated he was not paid for the 6 days annual leave by the Respondent when he left his employment and therefore is seeking compensation of his loss of entitlement.

Consequently, I find the complaint is well founded.

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

CA-00034055-006

Section 23 of the 1997 Act provides:

23.—(1) Where—

(a) an employee ceases to be employed, and  

(b) the whole or any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee,the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(2) Where—

(a) an employee ceases to be employed during the week ending on the day before a public holiday, and

(b) the employee has worked for his or her employer during the 4 weeks preceding that week, the employee shall, as compensation for the loss of his or her entitlements under section 21   in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day's pay calculated at the appropriate daily rate.

(2) The pay in respect of an employee's annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave, Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997.

The Complainant claims is for the loss of his entitlement to 11 public holidays from the date he commenced employment in July 2018 to the date he left his employment in October 2019.

As outlined above I am limited to the cognisable period is the 6-month period from 28 July 2019 to 29 January 2020. The Complainant left his employment on 5 October 2019. Consequently, the only public holiday that can be consider are August Bank Holiday 2019.

No evidence was provided to rebut the claim from the Respondent.

This complaint is well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00034055-007

This complaint is not well founded as it was withdrawn at the hearing.

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00034055-008

This complaint is not well founded.

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

CA-00034055-009

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

“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”

The Complainant’s evidence is accepted that he was not provided with a contract of employment.

I find the complaint is well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00034055-010

Section 28 of the 2005 Act provides:

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

At the hearing the Complainant was asked if he reported the conditions of the kitchen to anyone other than the Head Chef. He confirmed he did not. He confirmed he did not raise his concerns with his employer or an external third party nor did it affect his conditions of employment to his detriment.

I find the complaint is not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034055-011

Section 4 of the Act states:

4.—(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.

Having regard for the evidence before me, it was the Complainant himself who left his position and therefore, not entitled to a period of paid notice.

I find this complaint is not well founded.

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

CA-00034055-001

Section 27 (3) provides in relation to redress:

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(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, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

In the circumstances, I award the Complainant €200 being 2 days wages in compensation for the breach of the 1997 Act.

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

CA-00034055-002

This complaint is not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012

CA-00034055-003

This complaint is not well founded.

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

CA-00034055-004

As outline above Section 27 (3) allows for redress in the event of a breach of the Organisation of Working Time Act, 1997.

In the circumstances, I award the Complainant €100 being one days’ wages in compensation for the breach of the 1997 Act.

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

CA-00034055-005

As outline above Section 27 (3) allows for redress in the event of a breach of the Organisation of Working Time Act, 1997.

In the circumstances, I award the Complainant €1,960 being 4 weeks wages in compensation for the breach of the 1997 Act.

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

CA-00034055-006

As outline above Section 27 (3) allows for redress in the event of a breach of the Organisation of Working Time Act, 1997.

In the circumstances, I award the Complainant €490 being one weeks’ wages in compensation for the breach of the 1997 Act.

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00034055-007

This complaint is not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00034055-008

This complaint is not well founded.

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

CA-00034055-009

Section 7 (2) (d) of the 1994 Act allows:

“(d) order 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 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977”

In the circumstances where no contract has been provided, I award the Complainant €1,960 being four weeks wages in compensation for the breach of the 1994 Act.

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00034055-010

This complaint is not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034055-011

This complaint is not well founded.

Payment of Wages – Public Holidays- Annual Leave- Compensation for Failure to provide Annual Leave upon cessation of employment – Contract of Employment – Penalisation – Notice Pay – Well Founded – No appearance by Respondent.