Complainant

Respondent

Anonymised Parties

A Kitchen Porter

Restaurant Owner

Representatives

N/A 

N/A 

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00034843-001

25/02/2020

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

CA-00034843-002

25/02/2020

The complainant worked for the respondent as a kitchen porter from May 2017 until his dismissal on 11 October 2019. His rate of pay was €10 per hour. He was dismissed after informing the 2nd chef he was unable to come into work. He claims he was not paid for bank holidays he worked, he received no premium payment for working Sundays and he did not get proper breaks during his employment.

The respondent says on Saturday, 12 October 2019 the complainant sent a text at 6am to the 2nd chef to say that he had to mind his baby and would not be able to come in for his shift starting at 10am. The owner was contacted by the second chef at 10am and it was agreed that the 2nd chef would text the complainant to say he should come in for 2pm. The complainant did not reply and the owner had to come in. This was the second time this had happened in 3 weeks. Also, one week before the complainant had handed in his notice and was due to leave on 20 October. For these reasons he was told if he did not come in that day he should not come back. He was paid until 18 October.

The complainant provided copies of texts sent on 12 October 2019. He sent the first text to the 2nd chef at 03.01 saying he would not make it in as his partner was not well. At 09.13 the 2nd chef asked if he could come in for 2 and, following a second text at 10.41, the complainant replied at 10.53 saying “No chance”. The second chef replied “Ok **** said leave it not to come back”. The complainant expressed his surprise at this and the 2nd chef replied “Not the way he wants it but this is twice now it’s happened.” The complainant says his dismissal was unfair.

The complainant confirmed he handed in his notice on 6 October because difficulties he was having at work were not being addressed. He was due to leave on 20 October. He missed 6 shifts as a result of his dismissal, amounting to between 45 to 50 hours. Because of stress he suffered at work he did not look for work for a couple of months. He has not been able to find work since.

The issue for decision by me is whether or not the complainant was unfairly dismissed by the respondent. Section 6 of the Unfair Dismissals Act 1977 states: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

From the evidence given at the hearing it was clear there were issues for the complainant at the workspace causing him to resign. Also, it was clear to me the respondent considered the complainant unreliable because he had missed a shift at short notice 3 weeks before and he had resigned. This was sufficient for the owner, via the 2nd chef, to tell the complainant he was dismissed when he said he could not come in for 2pm on 12 October 2019.

By the time of the incident on 12 October there was a poor relationship between the complainant and the owner. However, the complainant had worked for the respondent since May 2017 and was entitled to proper procedures to be applied before any decision to dismiss was taken. The respondent needed to establish “there were substantial grounds justifying the dismissal.” At the least this would have involved a disciplinary meeting investigating the incident, after which the respondent could have made a decision. No such meeting took place and therefore the respondent failed to establish “there were substantial grounds justifying the dismissal.” And I find the dismissal was unfair.

The complainant says he did not get paid extra or get time off for the all the bank holidays he worked for the duration of his employment, May 2017 – 12 October 2019.

He worked most Sundays and received no extra payment.

Also on Sundays, he did not get breaks in accordance with the legislation.

The respondent says the complainant was paid extra for Christmas Day, St Stephens Day and New Year’s Day bank holiday. He accepts the complainant was not paid extra for working other Bank Holidays until August 2019. The complainant should have been paid for an extra 2 bank holidays in 2017, 6 in 2018 and 5 in 2019; a total of 13.

He says the complainant received €20 ‘travel bonus’ for working Sundays

He says on Sundays everyone got a 15 minute break at 10.00 when the staff had something to eat, and another fifteen minute break around 11.30. Then the shift was very busy and staff took breaks when they could, after 3.30 when the service quietened down.

Public Holidays

Section 21(1) of the Organisation of Working Time Act, 1997 states:

“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.”

The complainant says he worked all bank holidays and received extra payment for none of them, from May 2017 until his dismissal in October 2019. The respondent says he was paid extra for working Christmas Day, St Stephens Day and New Years Day. I conclude that the complainant is entitled to an extra day’s pay for them for 2 public holidays in 2017, 6 in 2018 and 5 in 2019 (a total of 13), which he worked but for which he received none of the entitlements in the OWTA.

Sunday Working

Section 14 of the OWTA states:

“(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.

(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.”

The complainant received the same rate of pay for all hours on all days worked. The respondent made no argument that the hourly rate was a “consolidated” rate to take account of working on Sundays. He says the complainant received a €20 “travel bonus” when he worked on a Sunday. I conclude the travel bonus was intended as recompense for extra costs in travelling to work on a Sunday and the complainant was not compensated for working on a Sunday in accordance with the requirements of the OWTA.

Breaks

Section 12 of the OWTA provides that an employee shall not be required to work more than 4 hours 30 minutes without a break of at least 15 minutes and shall not work more for more than 6 hours without a 30-minute break. This 15-minute break can be included in the 30-minute break but would have to start no later than 4 hours and 30 minutes after the commencement of work.

The respondent gave evidence of the breaks generally allocated to the complainant and other staff on the shifts he worked. Whilst the complainant says he got no more than a five minute break at any one time. None of the evidence was convincing and there were no supporting records. My conclusion is that the complainant had not given the necessary evidence to support his claim.

CA-00034843-001

For the reasons give above, pursuant to Section 8 of the Unfair Dismissals Act, 1977, I find that the complainant was unfairly dismissed. In assessing compensation I have taken into account that the complainant was due to leave on 20 October and did not look for work following his dismissal and I award the complainant €480 (48 hours @ €10 per hour) for the shifts he did not work between 12 – 20 October.

CA-00034843-002

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Public Holidays: for the reasons given I find that this claim is well founded and the respondent is directed to pay the complainant thirteen day’s gross pay (€1,040.00) plus an additional €200 in compensation for the infringement of his employment rights.

Sunday Working: for the reasons given above I find that this claim is well founded and the respondent is directed to pay the complainant compensation of €1,500 for the infringement of his employment rights. I further direct the respondent that he comply with the legislation in future.

Breaks: for the reasons given above I find that this claim is not well founded

Unfair dismissal – no procedure OWTA – no Sunday premium, public holidays