ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024964
Parties:
| Complainant | Respondent |
Anonymised Parties | A Chef | A Restaurant |
Representatives |
|
|
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00026453-003 | 20/02/2019 |
Date of Adjudication Hearing: 15/01/2020
Workplace Relations Commission Adjudication Officer: Conor Stokes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The respondent operates an Italian restaurant in a regional town. Although the restaurant appears to have ceased trading, the company is still operational as per the Companies Registration Office website at the date of hearing. The complainant named the respondent in the complaint form using its trading name listed on the CRO website. |
Summary of Complainant’s Case:
The complainant began work for the respondent at the end of May 2018, however in mid-September he was let go with no notice. He received his last payment in mid-September. He received €440 per week for a 40-hour week. He did not receive a contract or payslips and gave oral evidence of the employment relationship at the hearing supported with text messages on his phone which indicated his required attendance at the restaurant. The complainant submitted in writing on the application form founding this complaint as regards minimum notice but also indicated that he did not receive any Holiday pay, payment for working two bank holidays or payment for working on Sundays and gave oral evidence at the hearing in support of this submission. |
Summary of Respondent’s Case:
The respondent did not attend the hearing of this matter. I am satisfied that the appropriate notification was sent to the appropriate address. I note that the notification of the hearing details was returned to the WRC on the day before the hearing marked ‘Gone Away’ but as the CRO website indicates that this is still the address of the respondent company, which is still operating normally, I am satisfied that the respondent is on notice of the hearing details. |
Findings and Conclusions:
The complainant submitted an application form in writing founding this complaint as regards minimum notice. However, the form also clearly indicated that he did not receive any holiday pay, payment for working two bank holidays or Sunday premia on that form. The application form to initiate cases before the WRC is not a Statutory defined form, I am satisfied that the respondent is on notice of complaints relating to breaches of the Minimum Notice and Terms of Employment Act, 1973; the Terms of Employment (Information) Act, 1994; and the Organisation of Working Time Act, 1997. The complainant gave oral evidence of the existence of an employee/employer relationship and supported this by presenting a thread of text messages indicating when he should show up for work. I tested this evidence and am satisfied that the complainant has established the existence of the employee/employer relationship such as to adequately found the complaints before the Workplace Relations Commission. The complainant gave oral evidence at the hearing in support of his complaints under each of the aforementioned acts, which was tested by the adjudicator at the hearing. He submitted that he worked two bank holidays and fourteen Sundays. As the tested evidence presented was credible and was not contradicted, I find that the complainant is entitled to succeed in relation to a failure on the part of the employer to provide minimum notice.
As the tested evidence presented was credible and was not contradicted, I find that the elements of the complaint relating to holiday pay, Public Holidays and the payment of Sunday Premia are well founded. Therefore, the complainant is entitled to succeed in relation to these elements of his complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having regard to my findings above, my decision is that the complainant is entitled to succeed in relation to a compliant under Section 4 of the Minimum Notice and Terms of Employment Act, 1973, in accordance with Section 12 of that Act I award the complainant compensation equal to one weeks’ notice, i.e. €440. Having regard to my findings above, my decision is that the complainant is entitled to succeed in relation to a compliant under Section 3 of the Terms of Employment (Information) Act, 1994, in accordance with that Act, under Section 7(2)(c) I require the employer to furnish a written statement containing the particulars of his employment and under Section 7(2)(d) award the complainant compensation equal to two weeks remuneration, i.e. €880. Having regard to my findings above, my decision is that the complainant is entitled to succeed in relation to a compliant under Section 14, 19 and 21 of the Organisation of Working Time Act, 1997, relating to Sunday work, Annual Leave entitlement and Public Holiday pay respectively. The complainant has suffered economic loss and accordingly my decision is to award the complainant the following amounts – for breaches of Section 14 I award the complainant an additional 25% per day worked, i.e. €22 per Sunday worked, therefore I award the complainant €308 (€22 x 14). For breaches of Section 19 my decision is that the complainant is entitled to the amount of €563.20 (8% of the time worked in lieu of Annual Leave I). In relation to breaches of Section 21 my decision is that the complainant is entitled to payment of €176 for two Public Holidays (€88 x 2). |
Dated: 01/09/2020
Workplace Relations Commission Adjudication Officer: Conor Stokes
Key Words:
Minimum notice, Terms of Employment, Organisation of Working Time, Holiday pay, Sunday premia, well founded |