Complainant

Respondent

Anonymised Parties

A Chef

A Hotel

Representatives

Self 

IBEC

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-00034080-002

30/01/2020

The complainant was employed by the respondent from March 2013 until he submitted his resignation on 31 October 2019 and worked until his termination date of 31 December 2019.

The complainant commenced in the role of Chef de Partie following which he was promoted a number of times to Junior Sous Chef in July 2013 to Sous Chef from 1 April 2014 to Chef de Cuisine from 1 February 2016. The claim is submitted under the Payment of Wages Act, the amount being claimed is €50,456.25 which the complainant submits takes account of overtime hours worked from July 2013 to December 2019.

This claim was submitted on the 30th of January 2020 therefore the cognisable six-month period for the complaint dates from 31st of July 2019.

The complainant submits that the respondent has not paid him or has paid him less than the amount due to him.   He submits that the amount of unpaid wages due is €50,456.25 and that this was due on the 31st of December 2019. The complainant advised that this calculation takes account of overtime hours worked from July 2013 to December 2019.

The respondent submits that there was no unlawful deduction from the complainants wages. Since being promoted to a management position the complainant was on an ‘all in’ salary and his hours of work were in accordance with the business needs which was advised to him in advance of accepting the position, and as stated in his signed contract.

Section 5 provides that. — (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee),

The complainant has submitted that the respondent has not paid him or has paid him less than the amount due to him.   The complaint form submitted stated that the amount of unpaid wages was €50,456.25 relating to the period from July 2013 to December 2019.      

The complainant advised the hearing that he had worked for the respondent for over 6 years but had never been financially rewarded for all the hours he worked and all of the times he worked more than 40 hours. He claims that this underpayment dates from 2013 to 2019.   The complainant added that he has not been paid overtime since being promoted to management level.

The respondent did not dispute that the complainant was not paid for overtime since becoming a manager and advised the hearing that from this point, the claimant was in receipt of an ‘all in ‘ salary and did not have defined contractual working hours each week.     The respondent submits that the claimant was on a management contract with hours as required and no provision for overtime.

The respondent advised the hearing that claimant commenced employment with the respondent on 11 March 2013 in the role Chef de Partie until 13 July 2013 when he was appointed Junior Sous Chef. From 1 April 2014, the claimant was employed as Sous Chef until 1 February 2016 when he was appointed as Chef de Cuisine on a salary of €37,000.

The respondent stated that the complainant continued in this role and received two pay increases on the 1 May 2017 and again on the 5th February 2018 until he submitted his resignation on 31 October 2019 and worked until his termination date of 31 December 2019.  The respondent advised the hearing that for the role of Chef de Cuisine, the claimant received a final yearly salary of €45,000 as detailed in his contract.

The respondent advised the hearing that the complainant when he first commenced employment, was paid for any overtime hours worked however upon his first promotion in July 2013, he moved to a management contract with a defined salary.

The respondent did not dispute that the complainant was not paid for overtime since becoming a manager and advised the hearing that from this point, the claimant did not have defined contractual working hours each week.  The claimant was on a management contract with hours as required. This is clearly set out in the complainants contract in the salary section where it outlines as follows:

‘Your starting salary will be €37,000 per annum… Salary is inclusive of any additional hours worked in excess of normal working hours’

The contract was signed and accepted by the claimant and at no point throughout his employment did he raise a grievance in relation to this arrangement.

The Respondent refutes the claim under the Payment of Wages Act in its entirety as no unlawful deduction of wages has occurred line with the renumeration stated in his contract, hours were in accordance with the business needs which was advised to him in advance of accepting the position, and as stated in his signed contract.    At no point has the claimant received a salary below his contractual salary. In making this statement the respondent is taking into account the clear written contract of employment, but also the operation of this contract in reality for his role and the established norms of the respondent more generally.

The respondent in support of its arguments cites the case of A Sous Chef v a Hotel (ADJ-00012556) wherein the Adjudicator dismissed the claim under the Payment of Wages Act as the complainant in that case was on an ‘all in’ salary.

The complainant submitted that he was paid for overtime when he commenced employment and that he should have continued to be paid for overtime hours. The complainant at the hearing did not dispute that he was promoted to a management position attached to which was an ‘all in’ salary or that he had signed a contract to that effect.

On the basis of the submissions and having considered all of the evidence adduced I am satisfied that there was no unlawful deduction in respect of wages properly payable to the complainant under the Payment of Wages Act and accordingly I declare this claim to be not well founded.

For the reasons set out above I declare this claim under the Payment of Wages Act, 1991 to be not well founded.

Payment of Wages, Salary, Overtime