Complainant

Respondent

Parties

Sujith  Arachchige

FMMP Ltd

Representatives

  N/A

N/A

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-00040378-001

12/10/2020

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

CA-00040378-002

12/10/2020

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

CA-00040378-003

12/10/2020

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

CA-00040378-004

12/10/2020

The Complainant was employed as a Chef by the Respondent from 2 June 2020 to 13 September 2020 and was paid a rate of €15 per hour. He claimed that he was not paid for a bank holiday, did not get a premium payment for working on Sundays and did not receive his contract of employment within the required statutory period.

The Complainant stated that he did not receive payment for the August bank holiday despite being in the employment of the Respondent at the time. He also alleged that he did not receive any statement of his terms and conditions of employment until 8 September 2020, more than 2 months after he started his employment. Finally, he asserted that he was not given any premium pay on Sundays despite it having been promised to him by Mr X when he began his employment with the Respondent.  

The Respondent acknowledged that the Complainant did not receive any payment for the August bank holiday and but stated that this was an oversight. One of the Respondent’s witnesses Ms Y stated that she issued a copy of the Complainant’s contract to the manager of the restaurant when he had started his employment and that she had given this to him. As he had failed to sign the contract, Ms Y re-issued a soft copy to him on 8 September 2020. Mr X gave sworn evidence and denied that he informed the Complainant that he would receive an additional 10% Sunday premium when he worked on Sundays.

Preliminary Point:

The Respondent clarified that the correct name of the entity is FMMP Limited and not EMMP Limited as stated on the documentation furnished by the WRC. I have made the necessary amendment to reflect this.

CA-00040378-001

Section 14 of the Organisation of Working Time Act 1997 states that:

(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.

It is clear from a reading of the Act that where an employee is required to work on Sundays, they should receive additional compensation for so doing. This entitlement to additional compensation only arises however where the employee’s rate of pay does not take into account the requirement to work on Sunday. The Complainant started his employment on €15 per hour and remained on this rate until he left the Respondent’s employment on 13 September 2020.  He stated that he was informed by Mr X when he hired him that he would be paid an additional 10% of his rate for any time he worked on Sunday. While I note that Mr X in his evidence denied that he had any such conversation with the Complainant, I also note that there was no evidence presented to me to suggest that his hourly pay rate of €15 reflected that he worked on Sundays.

Pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint. This complaint was submitted to the Workplace Relations Commission on 12 October 2020 and therefore the period to be taken into account when investigating this complaint is the six-month period back to 13 April 2020 which means that the entire period of the Complainant’s employment from 2 June 2020 to 13 September 2020 is within time.

There are 11 Sundays in this period and the Complainant gave evidence that he worked all of these but was only paid a flat hourly rate of €15 at this time. Based on all of these facts, I find that the complaint is well founded and consider the just and equitable award to be €250. 

CA-00040378-002

The Organisation of Working Time Act, 1997 outlines an employee’s entitlement in respect of public holidays.

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.

I note the Complainant’s assertion that he did not receive any payment for the August bank holiday and the Respondent’s witness’s acknowledgement that this was an oversight. I find therefore this complaint is well founded and I award the Complainant €120 in respect of this unpaid public holiday.

CA-00040378-003

The Complainant highlighted in his complaint form that he had not received his full annual leave entitlement. As he stated in evidence at the hearing that this had since been paid to him in full, this complaint was withdrawn.

CA-00040378-004

The start date of the Complainant’s employment was agreed as 2 June 2020 and his employment terminated on 13 September 2020.  The complaint was received in the Workplace Relations Commission on 12 October 2020. 

The Terms of Employment (Information) Act 1994, Section 3 sets out the basic terms of employment which the employer must provide to the employee in a written form within two months of starting the employment.

(1) 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, that is to say –

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

c)       the place of work or where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee’s contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof of, if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee’s remuneration,

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to –

l)        (i)incapacity for work due to sickness or injury and paid sick leave, and

m)    (ii pensions and pension schemes.,

n)      the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

o)      a reference to any collective agreements which directly affect the terms and conditions of employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Act also required this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

This Act was amended by virtue of the Employment (Miscellaneous Provisions) Act 2018 and its provisions apply from 04/03/2019 whereby some of the core terms must be given in writing to an employee within 5 days of staring employment.  These are:

a)      the full names of the employer and employee;

b)      the address of the employer in the State, or where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

c)       in the case of a temporary contract of employment, the expected duration thereof, or, if the contract of employment is for a fixed term, the date on which the contract expires;

d)      the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

e)       the number of hours which the employer reasonably expects the employee to work –

(i) per normal working day, and

(ii) per normal working week.

It is the Complainant’s position that he did not receive a copy of his terms and conditions until 8 September 2020, more than 2 months after he started his employment. At the hearing, the Respondent’s witness outlined that she had given a copy of the Complainant’s contract to the manager of the restaurant when he had started his employment and that she had passed this onto him. In the absence of any direct evidence from the manager of the restaurant to say that she had done so however, I prefer the evidence of the Complainant and find that the complaint is well founded.

In making a decision on what compensation to award in respect of this complaint, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant claimed that her employer was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, Mr Haugh, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the failure to issue any statement of terms and conditions of employment within the required timeframes must be considered to be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the within case. I therefore award the Complainant compensation of four weeks remuneration, namely €2,460.

CA-00040378-001   I find that this complaint is well founded and I award the Complainant €250 for the reasons outlined above.

CA-00040378-002 I find that this complaint is well founded and I award the Complainant €120 for the reasons outlined above.

CA-00040378-003  This complaint was withdrawn and I therefore make no award

CA-00040378-004 I find that this complaint is well founded and I award the Complainant €2,460 for the reasons outlined above

Contract of employment; public holiday; Sunday premium