FULL RECOMMENDATION
PARTIES : COMPASS CATERING SERVICES IRELAND LIMITED DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00019685 The Complainant states that he is owed wages for overtime worked. This is disputed by the Respondent. The Complainant lodged a claim with the Workplace Relations Commission, ‘WRC’, under the Payment of Wages Act 1991. The Adjudication Officer, ‘AO’, did not uphold this complaint. The Complainant appealed to this Court. SUMMARY OF COMPLAINANT ARGUMENTS: The Complainant’s contract provided for overtime payments and a Sunday premium. He was often required to work on week-ends to train for the coming week. The Complainant lost his clock card in September 2018. He sought a new one from his line manager but never received one. He worked about five to ten extra hours per week but was not paid for them. He had no choice. He had to work these hours. Miraculously, the Respondent cannot find his clock times on the relevant software. SUMMARY OF RESPONDENT ARGUMENTS: The Complainant is seeking payments that come to €10,000. The first time the Respondent was aware of this claim was when it was submitted to the WRC. On review of the complaint, the Respondent discovered that clocking records for all staff except the Complainant are available. This surprised the unit manager who observed the Complainant clocking in after October 2018 when he says he lost his clock card. Clocking records are closely monitored, so this is a cause of concern. The Complainant, in any event, had no automatic entitlement to overtime. His contract provided that it would only be paid if authorised in advance. In accordance with his attendance requirements, the Complainant was rarely required to stay beyond 2.30pm. When it was required, the Complainant would be notified and it was agreed in advance. During the period concerned, another Chef covered hospitality events, so there was little or no overtime assigned. The amount claimed of €10,000 is equivalent to 200 hours in a 14 week period. This is implausible as he was only paid 68 hours in a previous 8 month period. WITNESS EVIDENCE: Mr. Mickael Jego: Mr. Jego is the Complainant. The witness confirmed that the contents of his submission were truthful and accurate. Under cross examination, the witness reiterated that he had lost his clock card and that he had requested a replacement more than once, which had not been provided. In response to questions from the Court, the witness said that the period when he had been paid overtime was not comparable to the period when he had not as there were more hospitality events in the relevant period and the hours worked were greater. The witness denied that all previous overtime had been authorised in advance as he said that the need for overtime could arise and would have to be met without formality. The witness accepted that he had not raised this issue as part of his resignation letter. THE APPLICABLE LAW: Payment of Wages Act,1991 1. “wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including— (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice DELIBERATION: Under the Payment of Wages Act 1991, an employee is entitled to be paid, in accordance with their contract, for any hours worked. In this case, the Complainant is claiming that he worked additional hours for which he is entitled to be paid a sum that comes to €10,000. Unfortunately, there is no record of the claimed hours which makes it difficult for the Court to determine that they were worked. However, the Complainant contends that he lost his clock card and that, despite requests from him, it was not replaced. If the Court was to accept this, it would be necessary to take it into consideration in assessing the validity of the Complainant’s claim. However, the Complainant is not able to produce any documentary proof that he raised this issue with any representative of the Respondent. In those circumstances, the Court cannot conclude that it would be safe to take this aspect of the claim into account. Therefore, the Court is left solely with the sworn evidence of the Complainant versus the absence of documentary evidence and the imbalance between the amount of claimed overtime when considered against the preceding period. While the Court can accept the evidence of the Complainant that there was an element of informality about the allocation of overtime and it was not always formally authorised in the past, the Court requires something more tangible before it could conclude, on the balance of probabilities, that the Complainant worked the hours claimed. Therefore, having regard to all circumstances, the Court is unable to uphold the claim before it. Determination. The Decision of the Adjudication Officer is upheld.
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