Complainant

Respondent

Parties

Inga  Grehan

Go Pack Ltd T/A The Newbury Hotel

Representatives

Self

Michael O'Sullivan Arra HRD Ltd

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-00043223-005

05/07/2021

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

CA-00043223-006

05/07/2021

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

CA-00043223-007

05/07/2021

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

CA-00043223-001

22/03/2021

The parties are named in the decision. For ease of reference the generic terms of Complainant and Respondent are used throughout the text. The complaints under the Organisation of Working Time Act fall under three headings: (1) failure to pay Sunday premium; (2) public holiday entitlement not paid; (3) breaks. The Complainant was employed as a chef in a hotel. Under the Terms of Employment (Information) Act the complaint is that the Respondent did not provide a contract of employment at any stage during the employment relationship. Date of commencement of employment was 8th October 2009, terminated by the Complainant on 22nd March 2021. The rate of pay at the time of the Complainant’s resignation was an average weekly gross pay of €376 or €13.20 per hour.

Procedures

The original notification for the hearing of the complaints referred only to the claim under the Terms of Employment (Information) Act. The Complainant contacted the WRC and stated that she wished to have her other complaints heard. The Respondent also indicated that they wished to have the complaints heard at the hearing arranged. Notification was then issued to the effect that all complaints would be heard at the hearing. The date of referral for all complaints was March 22nd 2021-the July dates on the CA numbers refer only to the date those numbers were assigned by the WRC which are those used in the Decision.

The Complainant was unrepresented. A solicitor on notice did not attend the hearing and the Complainant stated that she was let down by him and was unable to find a replacement at short notice. A postponement was sought. However, as adjudication officer I decided that there was enough notice of the hearing provided to the parties and that the issues should be heard and decided. The Complainant gave evidence under oath. Michael O’Sullivan represented the Respondent and made a submission on their behalf. M. Hughes (Witness A) and G. McGinley (Witness B) gave evidence on behalf of the Respondent under affirmation.

Terms of Employment (Information) Act

The Complainant stated that she had not received a statement of terms of employment at any stage. The Complainant was employed as a chef. At one point she discovered that another chef with the same job and same responsibilities was paid more than her at €15 per hour. She felt that she was treated very unfairly, and she was hurt to learn that the other person was paid more than her although they had the same responsibilities; they were in charge when at work organising delivery, serving parties and cooking. There was on one chef rostered on at any time. She stated that she had no finishing hours; that the staff were required to draw up their own rosters and any issues that were raised as a problem were waved away by the owners of the hotel. She stated that there were no fixed working hours; no description of work duties; there were deductions from wages for breaks of 45 minutes even if she was working six or five hours; there was no extra pay for working on Sundays and she would get paid sometimes for bank holidays, sometimes not. She said she did not understand the payment system for public holidays as there was no clearness or explanation about anything or set out in a statement of terms.

Organisation of Working Time Act Complaints

Sunday premium

The Complainant explained that she worked on average every second Sunday and there was no difference in her pay from one week to the next based on Sunday premium.

Breaks

She understood that 45 minutes was deducted from her pay from each shift to allow for breaks even if this was the short shift of five to six hours. There were many occasions when she was unable to take her break as there was no cover and the break could be interrupted to provide a meal or to take an order.

Public Holidays

The Complainant stated that sometimes she was paid and sometimes not.

Mr O’Sullivan submitted that the business was closed from the 12th of March to the 22nd of June 2020. The business was then forced to close again in October, reopening on 2nd December until the end of December. From then until 7th June 2021 the business was again closed. In May 2021 as the Hotel was preparing to reopen the Complainant said she would not work on a Sunday. A complaint was submitted to the WRC without any prior notification to the Respondent. There was an informal meeting on June 5th, 2021, seeking to understand her complaints and attempt to deal with them. She was informed at the meeting that she was rostered to work for the following weekend 12th and 13th June. However, on the evening on 9th June she issued notification by email resigning her position. There were efforts to resolve her issues at the meeting and subsequently.

Regarding the rate of pay-the average rate of pay for a chef was given as €11.50 to €16 euro depending on experience. The Complainant was paid above the minimum at €13.20 and this was considered appropriate to her skills and experience.

Response to the complaints

Terms of Employment (Information) Act 1994

The Respondent provided a copy of an employment contract they maintain was given to the Complainant on 8 January 2010 approximately two months after she commenced her employment. In her evidence Witness A stated that she would have left the statement of employment with the payslip for the Complainant at the reception where the payslips could be collected, and it was there for her to collect at any time. It was her practice at that time to be collected, and it was there for her to collect at any time. It was her practice at that time to leave the contracted terms for the employee in that way generally a month or two after they started employment. The witness stated that she has since changed the practice and she now email it to the employee to ensure that she has a copy of receipt.

Organisation of Working Time Act 1997

Sunday Premium

Mr O’Sullivan submitted that the contract of employment at clause 8 states that the wages are paid weekly, revised from time to time and states clearly that the rate of pay includes a premium for working Sunday: “Your rate of pay is €X per hour which includes a premium for working Sundays.” Reference was again made to the rate of pay for a chef/cook in the hospitality sector as being in the region of €11. 50 per hour to approximately €16 per hour, and it was submitted that a rate of €13.20 (including Sunday premium) properly rewards the Complainant for her experience and skill in her role at the Hotel. Evidence was given that all employees have a contractual rate of pay which includes a reference to Sunday premium even if they do not work Sundays.

Public Holiday Pay

Mr O’Sullivan submitted that there was no specific allegation on any public holiday that was not paid. The complaint is denied, and it is submitted that all public holiday entitlements have been paid in accordance with the Organisation of Working Time Act.

Witness A stated that the practice in the employment was to add a day to the holiday entitlement for that year.

Breaks

Witness A stated that there was no way that the Complainant could not take her breaks; that she would have seen her on the phone in the afternoons and she would also have seen her taking breaks; this was absolutely incorrect. These were sometimes taken in the function room; at other times she would have seen the Complainant sitting at the fridge; that it was just not the case that the Complainant did not get breaks. She added that there were plenty of times when the Hotel described as a small place was not busy and that the Complainant had never raised this issue at any time during her employment. On payments for breaks, if the shift was 2.00 to 7.00, the break was paid. Where the shift was for 11.30 to 7.00, on that longer shift there was a 30-minute unpaid break.

This is a small hotel and between 2.00 and 5.30pm three to four meals would be served. The rest of the time in the afternoon the Complainant was free to do whatever, including taking breaks. He was on the premises seven days per week, and he would be in and out of the kitchen and in the function room and would have seen the Complainant taking breaks. Between 2.00 and 5.30 three to four meals would go out and there was time to take a break.

The complaint was received by the Workplace Relations Commission on 22nd March 2021. Under the terms of Section 41(6) of the Workplace Relations Act, a complaint should ordinarily be submitted within a period of six months beginning on the date on which the alleged contravention occurred. Section 41(6) states:

‘Subject to subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section (8) effectively extend that period of six months for a further period of six months if ‘she or he is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.’

No case was made for an extension of the initial six-month time limit. According to her own statement of complaint to the WRC these complaints were initiated by the Complainant during the period of Covid when the Complainant had time to consider her position particularly caused by learning that another chef is paid more than her an issue which does not fall for consideration under either the Organisation of Working Time or the Terms of Employment information Act.

The period of six months comprehended by this complaint therefore dates back to October 2020 when the hotel was closed. As it happens therefore, due to Covid-19 there was no public holiday worked by the Complainant during that six-month period as the level of restrictions closing hotels came into effect on October 21st, 2020. In addition, the actual period of employment worked during that time was the 2nd until the end of December 2021. While there were some days worked in June 2021 after the reopening of the hotel-these postdate the receipt of the complaint by the WRC and cannot be considered. These factual circumstances greatly reduce the impact of the complaints made by the Complainant even where those complaints are well founded.

Clearly there is conflicting evidence on this matter. This situation arises frequently where the Respondent will say that they have issued a statement of terms of employment but there is no signature for acceptance of the terms by the Complainant. There is perhaps unfortunately no lawful requirement for an employee to sign for receipt of such an important document to prove receipt or issuing as the case may be and it is the absence of this signature that frequently gives rise to a claim of not receiving the statement. The Respondent has not assisted their own case in this matter by simply leaving the statement to be collected by the Complainant and not handing it to her in person or requesting that she sign and complete the document provided to the hearing which does provide for a form of acceptance, a signature, and a date. In this case the difficulty in deciding the matter is compounded by the length of time since the document was said to have been issued or left for the Complainant. On the balance of probabilities, allowing for the fact that the Complainant raised none of the issues which she has raised within her complaint prior to 2021, her familiarity with the fact that she was not receiving a separate premium when she worked on Sundays and that there was a deduction for breaks  suggest that she was aware of her terms and conditions of employment which also suggests that she had received the document provided by the Respondent. It is so long ago, and it was done in such an informal manner that she may well have forgotten this fact. On balance, I have decided that this part of the complaint regarding a failure to provide a statement of terms of employment is not well founded.

Organisation of Working Time Act Complaints

Sunday Premium

The Statement of Terms of Employment on this point simply states: ‘Your rate of pay is x per hour which includes a premium for working Sunday.’

The Complainants evidence is that she worked every second Sunday.

Consistent with the witness evidence on behalf of the Respondents where it was said that the same terms were given to all employees whether they work Sundays or not, the Terms and Conditions of Employment provided by the Respondent read as a standard document which would be used for all employees with those terms such as the position and the date of commencement and the rate of pay completed by hand. There is no mention of the hours of Sunday Working or the frequency of Sunday Working or the amount of the Premium payable for Sundays worked. Recognising that there is no minimum premium for Sunday Working set by the Organisation of Working Time Act and that there is no longer a statutory wage mechanism for the hospitality industry including hotels, it is not unreasonable to expect that where only some of those employed have a liability for working Sundays that the amount of that premium would be stipulated. The conclusion is that what was inserted was a flat rate of pay but there is no evidence that the amount set included an actual premium for Sunday Working but rather the evidence suggests that was merely an hourly rate of pay for the position. In this regard the amount claimed by the Respondent as the rate of pay for a chef in a hotel at €13.20 being a reflection of the experience and service of a chef whose employment commenced some eleven years earlier and who performed other tasks including rosters and ordering and receipting supplies and included working a premium for working every second Sunday really does not stand up to scrutiny. This conclusion is supported by the fact that when the statutory minimum wage was €8.75 in 2009 and the reference point for Sunday Premium across EROs in the Catering and Retail Sectors was time and one third. This would mean a chef in a hotel had a premium of €1.25 per hour for her qualifications; responsibilities and Sunday Premium. A premium of a third on the national minimum wage at that time would give an hourly rate of in excess of €11.63 per hour in 2009 when the contracted rate of pay was €10 per hour.

Any compensation on this point is limited by the number of Sundays worked in the period comprehended by the complaint which was one perhaps two at most in December 2020.

The compensation for this breach of the Organisation of Working Time Act is set at €150.

Public Holiday Pay

There was no public holiday worked during the period comprehended by the complaint and therefore there can be no well-founded complaint for premium payment. However, I would urge the Respondent to review their practices in relation to public holiday pay and the requirements under the Organisation of Working Time Act for future reference as there are very clear regulations regarding public holiday pay under S.I. 475 1997 with which the Respondent is not compliant. And payment for Public Holidays should be clearly available on records including payslips.

Breaks

There is no obligation to provide paid breaks, the legal requirement is that minimum periods of breaks are provided related to the duration of the hours worked each day. The periods of fifteen minutes and thirty minute respectively provided by the Respondent are not at issue in this case.

Again, the period worked during the six months comprehended by the complaint was of very limited duration, only a few weeks in December 2020 prior to the submission of the complaint in March 2021. It lacks credibility that the Complainant could not take a break at any stage during a short or long shift throughout a lengthy period of employment during which she did not raise this issue. However, there were no records of breaks kept by the employer as they are obliged to do under the Organisation of Working Time Act. The relevant extract from statute is as follows:

“12.— (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

Records.

25.— (1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act ……..and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) ...

(3) …

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act….. in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”

A finding of compensation to the Complainant is made in  in respect of breaks on the basis that it is more likely than not, that there were occasions on which it would have been difficult for her to take her break given she was the only chef on duty; that break may not have been taken or available to her within the periods specified under the legislation; and no records can be provided to support the testimony of the witnesses. Frankly that there are no records kept in relation to these matters favours the Complainant in any event. Recognising that the period actually worked in the six-month period from October 2020 to March 2021 was very short, the award of compensation is to act in part at least as a deterrent to future breaches by the Respondent and effectively to encourage them to put their house in order. In other circumstances where the Complainant had worked more often during the six-month period the award of compensation on this aspect of the complaint would be far more substantial.

The compensation for this breach of the Organisation of Working Time Act is €400.

CA 00043223-005 Organisation of Working Time Act -Sunday Premium

The complaint brought by Inga Grehan under the Organisation of Working Time Act in respect of non-payment of Sunday Premium is well founded. The Go Pack Limited T/A Newbury Hotel is to pay €150 compensation to the Complainant in respect of breaches of this aspect of the Act.

CA 00043223-006 Organisation of Working Time Act-Public Holiday Pay

The complaint under the Organisation of Working Time Act in relation to payment for Public Holidays is not well founded.

CA 00043223-007 Organisation of Working Time Act-Breaks

The complaint brought by Inga Grehan under the Organisation of Working Time Act in respect of the provisions of the Act in relation to breaks during the working day is well founded. Go Pack Limited T/A Newbury Hotel are to pay Inga Grehan €400 in compensation in respect of the breaches of the Act.

CA 00043223-001 Terms of Employment Information Act 1994

The complaint brought by Inga Grehan un this legislation is not well founded

Provision of Statement of terms of employment; Sunday Premium; Breaks. Public Holiday Pay