Complainant

Respondent

Anonymised Parties

Waitress

Restaurant

Representatives

  Self

No attendance

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-00034008-001

27/01/2020

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

CA-00034008-002

27/01/2020

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

CA-00034008-003

27/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00034008-004

27/01/2020

The Complainant attended the hearing and gave evidence regarding her employment history and the termination of her employment together with the basis of her complaints under the Payment of Wages Act 1991,concerning a claim for minimum notice pay and the Organisation of Working time Act 1997, concerning a failure to pay Sunday premium, public holiday pay and underpayment of annual leave. The details are set out under the summary of the Complainants case. The complaint was received by the WRC on 27 January 2020. The employment relationship ended on August 4th, 2019 according to the complaint document.

The Respondent was notified of the complaint and the hearing at the address provided. Another party informed the WRC that the business was no longer operated by the Respondent at the address provided. The Complainant is not aware of any alternative address or business operated by the Respondent. As I am satisfied that every reasonable effort was made by the Workplace Relations Commission to serve notice of the proceedings on the Respondent and as the Complainant attended to give attendance at the hearing, I proceeded to hear the complaints based on her uncontested evidence and to decide the matters taking into account her evidence and the terms of the relevant legislation.

The Complainant was employed as a waitress in a restaurant/takeaway. She commenced employment at the restaurant in 2011 and she believes the business transferred to the Respondent in 2016. She did not receive a statement of terms of employment or payslips. Her rate of pay was €400 per week. Her roster was for two days off each week, always Wednesday and Thursday.

Payment of Wages Act 1991.

The evidence of the Complainant is that on Friday August 2nd, 2019 she had a fight with the Respondent in his office and he slapped her across the face, telling her to get out and not to come back. Her complaint under the Payment of Wages Act 1991, is for non-payment of notice on termination of her employment.

Organisation of Working Time Act 1997

It is the Complainants case that she was paid €600 per annum for annual leave in two amounts of €300. Sometimes she had time off when she was paid these amounts. She believes she received one payment of €300 in 2019.

Regarding Sunday Premium, the Complainants case is that she was rostered every Sunday as part of her rostered week. The complaint is that she received no Sunday Premium for those hours worked either by way of an additional payment or paid time in lieu contrary to the Act of 1997(Section 14 of the Act of 1997 refers).

Regarding Public Holidays, the Complainants case is that she worked at least half of all Public Holidays each year. Her complaint is that she received no additional payment or paid time off in lieu for Public Holidays worked.

The Respondent did not attend and did not provide any evidence to contradict the complaints.

Payment of Wages Act 1991

Based on her uncontested evidence I am satisfied that the Complainant was dismissed by the respondent without following any recognised procedures and without any pay in lieu of notice. In the circumstances as described, the complainant is entitled to four weeks pay in lieu of notice based on having between five- and ten-years service in the employment at the time of her dismissal.

Organisation of Working Time Act 1997, as amended.

Based on the uncontested evidence of the complainant, I am satisfied that the respondent employed her on terms which were contrary to the provisions of the Organisation of Working Time Act in so far as there was a failure to pay her Sunday Premium for hours worked on that day; a failure to pay her holiday entitlements as they fell due and in accordance with the calculations required by the legislation, that is to say at a rate of 8% per cent of hours worked up to a maximum of twenty days paid days per annum; a failure to either pay an additional days pay or provide a paid day off within a month in respect of Public Holidays worked.

Holiday Pay

Sunday Premium.

In the absence of payslips or a statement of terms which could establish if the daily rate of pay included an allowance for Sunday working it is reasonable to conclude there was no premium paid to the Complainant for working Sundays which the Complainant worked as part of her roster. In the absence of a recent reference point for Sunday premium in this type of employment I have allowed a premium of 10% for each Sunday worked in the period six months prior to the submission of the complaint to the WRC(January 27th, 2020). This calculation allows for the payment of a premium for Sunday July 27th, 2019, a total of €8. When allied to the non-provision of payslips which denied the complainant the knowledge of how her pay was calculated , the amount of compensation to be paid to the Complainant in respect of the failure to pay her Sunday Premium is doubled.

Public Holiday Pay.

Complaint was lodged with the WRC on January 27th, 2020, almost six months after the cessation of employment. As no public holidays fell within the six-month period prior to the submission of the complaint during July 2019 there was no breach of the Organisation of Working Time Act in the period comprehended by the complaint.

No case was made for extending the time limit of six months set out in Section 41(6) of the Workplace Relations Act 2015, and I have therefore decided against any compensation for breaches of the Organisation of Working Time Act 1997 in respect of payment for Public Holidays, which may have occurred prior to July 2019.

Calculation of amounts payable is based on a weekly remuneration rate of €400 per week

Payment of Wages Act 1991

The complaint that the Complainant was entitled to pay in lieu of notice on termination of her employment is well-founded. The Respondent is to pay the Respondent €1600 pay in lieu of notice calculated in accordance with the terms of the Minimum Notice and Terms of Employment Act 1973.

Organisation of Working Time Act 1997

The complaints that the Complainant was entitled to payment of additional premium or allowances in respect of Sunday Working and is well founded. The complaint that the Complainant was entitled to payment for outstanding annual leave on termination of her employment is well founded. The complaint that the complainant was due payment for public holidays at the time her employment was terminated is not well founded.

The Respondent is to pay the Complainant the following amounts of compensation in respect of the breaches of the Organisation of Working Time Act 1997.

Sunday Premium a total of €16

Non-payment of Annual Leave €1259.60

Total compensation due to the Complainant, €1275.60

Sunday Premium/Annual Leave/Public Holiday pay and Notice Pay on termination.