ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027089
Parties:
| Complainant | Respondent |
Parties | Tomislav Matanovic | Carxie Restaurants Limited |
| Complainant | Respondent |
Anonymised Parties | Bar manger | Restauranteur. |
Representatives | Self-represented | Did not attend |
Complaints:
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-00034659-001 | 14/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00034659-002 | 14/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034659-003 | 14/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00034659-004 | 14/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00034659-005 | 14/02/2020 |
Date of Adjudication Hearing: 04/05/2021
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
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. On this date I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained the changes arising from the judgment of the Supreme Court in Zaleski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021 to the complainant. The complainant agreed to proceed in the knowledge that decisions issuing from the WRC will disclose the parties’ identities.
Background:
The complainant commenced work as a chef with the respondent on the 12/8/2019. He received notice of termination of his employment due to the closure of the business on the 11/2/2020. He worked 40 hours a week for which he was paid €520 gross. He has submitted five complaints under the statutes set out in this decision. He submitted his complaint to the WRC on 14/2/2020. |
Summary of Complainant’s Case:
CA-00034659-001: Complaint under section 27 of the Organisation of Working Time Act, 1997 The complainant received no compensation for working on 16 of the 20 Sundays which fell during the period of his employment (12 August 2019 – 11 February 2020). The employer told him there was no extra payment for working on Sundays in the hospitality sector. CA-00034659-002: Complaint under section 6 of the Payment of Wages Act, 1991 The employer unlawfully deducted the sum of €845.00 payable in wages on the 11/02/2020 for the 65 hours worked by the complainant since his last salary payment at the end of January. The respondent failed to pay him for tips earned in the previous 6 months. CA-00034659-003: Complaint under section 27 of the Organisation of Working Time Act, 1997 CA 003. The complainant was not paid for the four bank holidays which fell during the course of his employment; they were the 28 of October 25, 26 December or the 1 January 2020. CA-00034659-004: Complaint under section 7 of the Terms of Employment (Information) Act, 1994 The complainant did not receive a statement in writing of his terms of employment. Despite repeatedly asking for his terms of employment in writing, the respondent only ever provided verbal affirmations of his terms of employment. CA-00034659-005: Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 On the 11/02/2020 he noticed that 3 hours into his shift, the owners had abandoned the premises. The complainant did not receive his statutory minimum period of notice on the termination of his employment or payment in lieu thereof. |
Summary of Respondent’s Case:
CA-00034659-001:Complaint under section 27 of the Organisation of Working Time Act, 1997 Though given due notice of the particulars of the hearing, the respondent failed to attend or make any submissions. CA-00034659-002:Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991. Though given due notice of the particulars of the hearing, the respondent failed to attend or make any submissions. CA-00034659-003: Complaint under section 27 of the Organisation of Working Time Act, 1997 Though given due notice of the particulars of the hearing, the respondent failed to attend or make any submissions. CA-00034659-004: Complaint under section 7 of the Terms of Employment (Information) Act, 1994 Though given due notice of the particulars of the hearing, the respondent failed to attend or make any submissions. CA-00034659-005: Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 Though given due notice of the particulars of the hearing, the respondent failed to attend or make any submissions. |
Findings and Conclusions:
CA-00034659-001: Complaint under section 27 of the Organisation of Working Time Act, 1997. Relevant Law concerning payment of a Sunday premium Section 14 (1) of the Act of 1997 states “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, b) By otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances” On the basis of the uncontested evidence, the respondent failed to acknowledge that any extra payment was payable in respect of Sunday working. In Viking Security Limited v Thomas Valent (DWT1489) the Labour Court stated “In practice the Court can only be satisfied that an employee has received his or her entitlement under Section 14 (1) of the Act where the element of compensation for the obligation to work on Sundays is clearly discernible from the contract of employment or from the circumstances surrounding its conclusion”. I do not find that any element of compensation for working on Sundays was paid to the complainant. I find the complaint to be well founded. The complainant’s uncontested evidence was that he worked 16 of the 20 Sundays that fell between the 12 August 2019 and the 10 February 2020. The Labour Court in that Viking Security Limited v Thomas Valent (DWT1489) case and in Chicken and Chips LTD T/A Chicken Hut v David Malinowski, DWT 159 measured the level of compensation for working on Sundays that was reasonable in all the circumstances at time-plus-one-third for each hour worked on a Sunday. I find that time- plus- one- third for each hour worked on a Sunday to be a reasonable level of compensation. I require the respondent to pay the complainant the sum of €499 for the loss of the premium subject to all lawful deductions. CA-00034659-002:Complaint under section 6 of the Payment of Wages Act, 1991. The question for determination is whether the respondent’s failure to pay the complainant the sum of €845 in respect of 65 hours worked during the period 1-11 February 2020 contravened section 5(1) of the Act of 1991. Relevant Law. The Act at Section 5 provides as follows: “5. (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”. There was no evidence to demonstrate the availability of these statutory protections which would permit the employer to deduct this complainant’s wages. The complainant was not informed of the intended deduction. Section 5 (6) of the Act of 1991 goes on to identify a deduction as follows: “(b)None of the wages that are properly payable to an employee by an employer on any occasion (after making such deductions as aforesaid) are paid to the employee then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer” The uncontested evidence of the complainant is that he was not paid for 65 hours worked from 27 January – 11 February 2020. His pay slips indicate an hourly payment of €13. On the basis of the uncontested evidence submitted by the complainant, I find this complaint to be well founded I find that the failure to pay him the sum of €845, net €728 (based on his pay slips) is a breach of Section 5(6)(b) of the Payment of Wages Act,1991 and is an illegal deduction. In accordance with section 6(2) of the Act of 1991, I order the respondent to pay the complainant the sum of €728 which is the net amount of the wages unlawfully deducted from him on the 11/2/2020. CA-00034659-003: Complaint under section 27 of the Organisation of Working Time Act, 1997 CA 003. The complaint was submitted on the 14/2/2020. The referable period is the 15 August 2019 to 10/2/2020. Four public holidays fell during that period; they were the 28 of October 25, 26 December2019 and the 1 January 2020. On the basis of the uncontested evidence I find that the respondent failed to meet his statutory obligations as set out in section 21 of the Act of 1977. I find that the complainant’s loss stands at €416. I require the respondent to pay the complainant the sum of €416 subject to all lawful deductions. In addition, I require the respondent to pay the complainant the sum of €520 in compensation for the breach of his rights under the Act. CA-00034659-004. Complaint under section 7 of the Terms of Employment (Information) Act, 1994 The relevant Law. Section 3.— (1) of the Act of 1994 states “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”. Based on the uncontested evidence of the complainant, I find the respondent failed to comply with section 3 of the Act of 1994.I find that the complaint is well founded. Section 7 of the Act provides, inter alia, for compensation not exceeding 4 weeks remuneration. I require the respondent to pay the complainant two weeks wages amounting to the sum of €1040 which I deem to be an amount that is just and equitable in compensation for this breach. CA-00034659-005. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973. I find the complainant’s employment terminated on the 10/2/20202. I find that the Complainant did not receive minimum notice as per his entitlements under section 4 of the Act of 1973 I find this complaint to be well founded. I find that the complainant is entitled to one weeks’ pay amounting to €520. |
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.
CA-00034659-001.Complaint under section 27 of the Organisation of Working Time Act, 1997 I find this complaint to be well founded. I require the respondent to pay the complainant the sum of €499 for the loss of the premia payable for the 16 Sundays that fell between the 12 August 2019 and the 10 February 2020 subject to all lawful deductions CA-00034659-002.Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991. I find this complaint to be well founded. In accordance with section 6(2) of the Act of 1991, I order the respondent to pay the complainant the sum of €728 which is the net amount of the wages unlawfully deducted from him on the 11/2/2020. CA-00034659-003: Complaint under section 27 of the Organisation of Working Time Act, 1997. I find this complaint to be well founded. I require the respondent to pay the complainant the sum of €416 subject to all lawful deductions. In addition, I require the respondent to pay the complainant the sum of €520 in compensation for the breach of his rights under the Act of 1997. CA-00034659-004. Complaint under section 7 of the Terms of Employment (Information) Act, 1994 I find this complaint to be well founded I require the respondent to pay the complainant two weeks’ wages amounting to the sum of €1040 which I deem to be an amount that is just and equitable in compensation for this breach. CA-00034659-005. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973. I find this complaint to be well founded. I find the complainant’s employment was terminated on 11/2/2020 without notice. I require the respondent to pay the complainant one weeks’ pay which amounts to €520 subject to all lawful deductions.
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Dated: August 5th 2021
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Non- payment of Sunday Premia, non-payment of wages, non- payment for public holidays, failure to provide paid notice and failure to provide terms of employment. |