Complainant

Respondent

Anonymised Parties

A chef

A restaurant

Representatives

Self.

Did not attend.

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-00034657-001

14/02/2020

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

CA-00034657-002

14/02/2020

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

CA-00034657-003

14/02/2020

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

CA-00034657-004

14/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034657-005

14/02/2020

The Complainant is a chef who was employed by the Respondent Restaurant from 29th September 2019 until 2nd February 2020. He worked between 40 and 50 hours per week and was paid the hourly rate of €13.50 per hour.

This complaint was received by the Workplace Relations Commission on 14th February 2020 and contains five complaints in total:

CA – 00034657 – 001 – referred under s.27 of the Organisation of Working Time Act, 1997 – no premium paid for working on a Sunday.

CA – 00034657 – 002 – referred under s.6 of the Payment of Wages Act, 1991 – unpaid wages due.

CA – 00034657 – 003 – referred under s.27of the Organisation of Working Time Act, 1997 – no payment for Public Holidays.

CA – 00034657 – 004 – referred under s.7 of the Terms of Employment (Information) Act, 1994 – no statement of the particulars of employment issued.

CA – 00034657 – 005 – referred under s.11 of the Minimum Notice and Terms of Employment Act, 1973 – no notice of dismissal issued.

The hearing of the complaints took place virtually on 8th December 2020.

CA – 00034657 – 001 – referred under s.27 of the Organisation of Working Time Act, 1997 – no premium paid for working on a Sunday.

The Complainant contends that during his period of employment he worked on approximately 10 Sundays and was only paid his normal hourly rate of €13.50 per hour.

CA – 00034657 – 002 – referred under s.6 of the Payment of Wages Act, 1991 – unpaid wages due.

When he was dismissed his employer failed to pay outstanding wages of €148.85.

CA – 00034657 – 003 – referred under s.27of the Organisation of Working Time Act, 1997 – no payment for Public Holidays.

The Complainant contends that he was not paid for Public Holidays throughout his period of   employment.

CA – 00034657 – 004 – referred under s.7 of the Terms of Employment (Information) Act, 1994 – no statement of the particulars of employment issued.

No written statement or contract was issued to the Complainant.

CA – 00034657 – 005 – referred under s.11 of the Minimum Notice and Terms of Employment Act, 1973 – no notice of dismissal issued.

The Complainant was given no notice of his dismissal from the Respondent.

The Respondent did not attend the hearing of the complaint.

The Respondent was notified of the arrangements for the virtual hearing by email on 16th November 2020.

From the uncontested evidence provided by the Complainant I accept such evidence as an accurate summary of events and decide the following:

CA – 00034657 – 001 – referred under s.27 of the Organisation of Working Time Act, 1997 – no premium paid for working on a Sunday.

The Complainant informed me that he worked on 10 Sundays during his period of employment.

Section 14 of the Organisation of Working Time Act, 1997 stipulates the supplemental provisions that must be made when an employee has to work on a Sunday. Clause 14 (1) reads as follows:

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 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 circumstance, 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.

The Complainant no longer works for the Respondent I will therefore address this by utilising point (a) outlined above.

The Complainant worked on 10 Sundays, I estimate this as 90 hours. The Complainants hourly rate was €13.50 per hour. I believe an allowance of 25% is fair for Sunday working. I now order the Respondent to pay the Complainant a gross sum of €303.75 in respect to this part of his complaint.

CA – 00034657 – 002 – referred under s.6 of the Payment of Wages Act, 1991 – unpaid wages due.

The Complainant contends that he is due €148.85.

I now order the Respondent to make this payment to the Complainant.

CA – 00034657 – 003 – referred under s.27of the Organisation of Working Time Act, 1997 – no payment for Public Holidays.

During his period of employment the Complainant was not paid for Public Holidays. I estimate that the Complainant is due €486.00, and I now order the Respondent to make the payment of this gross sum in respect to this part of the complaint.

CA – 00034657 – 004 – referred under s.7 of the Terms of Employment (Information) Act, 1994 – no statement of the particulars of employment issued.

The Complainant has an entitlement under law to be provided with a written statement of the main terms of his employment within two months of commencement of the employment. The statement under section 3 of the said Act must include the following:

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 or, if the contract of employment is for a fixed term, the date on which the contract expires,

fa) a reference to any registered employment agreement or employment regulation            order which applies to the employee and confirmation of where the employee may obtain a copy

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

ga) that the employee may, under section 23 of the National Minimum Wage Act,2000

     requests from the Employer, a written statement of the employee’s average hourly

     rate of pay for any pay reference period, as provided in that section.

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—

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

(ii)                pensions and pension schemes,

l)        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,

m)    a reference to any collective agreements which directly affect the terms and conditions of the 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.      

No such statement was issued to the Complainant.

Section 7(2) of the Act states:

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of contravention of section 3,4, 5 or 6 shall do one or more of the following, namely –

(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

I now order the Respondent to pay the Complainant a sum amounting to €2,430 gross (four weeks’ pay) for his failure to provide the Complainant with the statement that he was legally entitled to.

CA – 00034657 – 005 – referred under s.11 of the Minimum Notice and Terms of Employment Act, 1973 – no notice of dismissal issued.

Under this legislation the Complainant was entitled to one weeks pay in lieu of notice. I now order the Respondent to pay the Complainant the sum of €607.50 (€13.50 x 45).

All sums awarded to the Complainant should be paid within 42 days from the date of this decision.

As outlined above.

Organisation of Working Time Act, 1997; Payment of Wages Act, 1991; Terms of Employment (Information) Act, 1994; Minimum Notice and Terms of Employment Act, 1973.