Complainant

Respondent

Anonymised Parties

A Bar Tender

A Public House

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035932-001

29/04/2020

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

CA-00035932-002

29/04/2020

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

CA-00035932-003

29/04/2020

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

CA-00035932-004

29/04/2020

The respondent owns two public houses in Dublin employing around 40 people. I will refer to them as “Pub 1” and “Pub 2.” On February 17th 2017, the complainant started working Pub 1.   A few months after he started, he agreed to work additional hours in Pub 2 and, by the time his employment was terminated, he said that he was working 20 hours in Pub 1 and around 30 hours in Pub 2. The respondent disputed the hours that the complainant claimed he worked in Pub 2, and he said that he worked around 16 hours a week there. The complainant was on two different rates of pay, earning €12.00 per hour in Pub 1 and €11.00 per hour in Pub 2. In correspondence that he sent to the WRC after the hearing on November 4th 2020, the complainant said that he earned €4,129 from January 1st to March 14th 2020, when all bars were closed due to the Covid pandemic. This is a period of 10 weeks and it comprises €2,952 for 246 hours worked in Pub 1 and €1,777 for 107.5 hours in Pub 2. Based on this evidence, it would appear that, for the first 10 weeks of 2020, the complainant worked an average of about 25 hours per week in Pub 1 and 11 hours a week in Pub 2. The complainant said that he discovered that he was dismissed on April 8th 2020, when he didn’t get paid through the temporary wage subsidy scheme (TWSS).

In his evidence, the respondent said that the complainant resigned on March 19th 2020, when he sent him a text message in which he said, “now would be the least disruptive time for me to part ways.” The complainant claims that he meant to resign only from Pub 2 and that he wanted to continue working in Pub 1. The respondent’s case is that the complainant resigned and that he was not dismissed. As this matter is in dispute, the first issue I must consider is, was the complainant dismissed?

At the hearing, the respondent said that the complainant worked mainly in Pub 1, generally for five nights a week from 10.00pm or 11.00pm until closing time. A few months after he started working there, the respondent said that he asked the complainant to cover some shifts in Pub 2, which is a separate business. He said that the complainant worked in Pub 2 to cover the days off of the bar tender there. He said that 75% of his hours were in Pub 1.

The respondent referred to an injury suffered by the complainant when he was assaulted as he was closing up in Pub 2 on November 13th 2019. He said that he returned to work two weeks later, and he seemed to be happy to continue working. In December 2019, the complainant initiated a personal injuries action as a result of the assault. The respondent said that both pubs are insured and that his insurance company will manage the injuries claim. In early 2020, the respondent said that he was advised by his insurers that his employees in Pub 1 could not also be rostered in Pub 2.

On March 14th 2020, all pubs in Ireland were closed due to the Covid pandemic, and the complainant was paid through the employer’s Temporary Wage Subsidy Scheme (TWSS).

Following the hearing on November 4th 2020, the respondent sent a copy of text messages between him and the complainant from March 19th to April 8th 2020. This string of text messages shows that, on March 19th, the complainant wrote to the respondent as follows:

“Hi … if the insurance company have effectively forbidden me from working in Pub 2 then I think that’s the case either way so it’s best to proceed as before. (And it may mean I’m entitled to back pay given the lower rate and no breaks in Pub 2, (another employee) was paid the same amount for his short stint). It’s not without its risk either: an over-eager Guinness delivery man nearly hit me with a keg once. I heard there was a €2m pay out to a cellar man in the Long Hall for catastrophic injuries suffered for the same reason. Plus now would be the least disruptive time for me to part ways.”

The complainant then mentioned some cleaning issues and he confirmed the hours worked by three employees the previous week. He finished his text message as follows:

“I can drop my keys back into (name of employee) later on or tomorrow morning if you want. €XXXk from Dec 2018 to Mar 2020 so not a bad run all the same.”

On April 3rd, the respondent responded to this text message:

“Hi … Sorry about not replying earlier. I had intended to reply but then (a manager) suggested the 3 of us meet to see if you would change your mind about no longer wanting to work for me. It’s a pity about the parting of the ways but I respect your decision and will make sure you are paid all holidays due to you. Best of luck in your new Sales venture, it sounds like you are going to be very busy. If you ever want to change your mind or want to meet up let me know. In the meantime, stay safe.”

The respondent said that he knew the complainant went to Germany for an interview in December 2019 and he did not expect that, as someone with a master’s degree, he would remain working as a bar man. He said that he heard that he got the job with the German company.

On April 7th, in response to the message above, the complainant sent a text message to say,

“I’m still in Pub 1… Decision only related to Pub 2 as I’m not insured to work there and being there officially would make things more complicated regarding tax credits, emergency tax, etc. and plus this period is the least disruptive time to let someone else take the reins. Thanks.”

Pubs remained closed at this stage and later the same day, the complainant sent another text message, complaining that he hadn’t been paid since March 27th and that it appeared that he was taken off the TWSS.

The respondent replied the following day, letting the complainant know that he was in fact removed from the payroll, on the basis of his statement that it was “time for me to part ways.” The respondent said that he thought this meant that he had resigned. He said however, that the text message of the previous day had clarified the situation. The respondent went on to explain to the complainant that one third of the employees were on the TWSS and that two thirds were on the PUP. He advised the complainant to go online and apply for the PUP. In response, the complainant said that as he was taken off the payroll in error, he wanted to be put back on. The respondent replied:

“Hi … I was clear to you that the insurance company have banned Pub 1 staff working in other bars so that terminated that. It did not suit me but you or I had no say in the matter, so when I later got your resignation text in my mind it could only apply to Pub 1. Anyway, there is no work and Pub 1 staff are down from 36 to 12 and unfortunately this number will reduce not increase going forward as the virus continues.   I advise you to collect the €350.   Feel free to ring me anytime after 8.00pm if you like. Or tomorrow if you prefer.”

It appears that no telephone conversation took place and on April 29th, the complainant submitted a complaint of unfair dismissal to the WRC.

When he returned to work after being assaulted in November 2019, the complainant said that he told the respondent that he didn’t want to work in Pub 2 any longer. However, he said that, “as a measure of goodwill and in recognition of the busy Christmas season coming up,” he agreed to carry out his managerial duties of ordering stock, taking deliveries, counting cash and sending bills and the weekly staff roster to the accountant.

On December 12th 2019, the complainant initiated a personal injuries claim against his employer. About a week later, he said that the respondent offered him €5,000 to withdraw the claim. He said that six or seven times in the following weeks, including over lunch on February 7th 2020, the respondent tried to persuade him not to pursue the claim.

At the hearing, the complainant said that in December 2019, he was interviewed for a new job, a sales role for a German furniture manufacturer. He accepted the job as an independent contractor and he said that he commenced working with them on February 1st 2020, working 35 hours a week. He said that his potential annual earnings are around €6,000 to €7,000 more than what he earned with the respondent, although his contract is not that of an employee, so his earnings are not guaranteed. He said that he was prepared to work with this company and to work in the bar in the evenings.

When all pubs closed temporarily on March 14th 2020, the complainant was paid his normal wages through the TWSS up to March 27th 2020.

A copy of a text message submitted by the complainant shows that on March 30th, he was asked by the manager of Pub 1 if he had applied for the PUP. In the message, the manager said,

“Hi hope you and you family keeping well have you applied for social just need to know, you can’t claim off social if you are getting paid through (Pub 1), some of the staff are going through social it is working out better for them either way I need to know thx.”

The complainant replied that he hadn’t claimed anything from Social Welfare. On April 7th, the complainant said that he clarified to the respondent that he had only resigned from Pub 2 and that he wanted to continue working in Pub 1. When he didn’t get any wages, the complainant contacted the company’s accountant to find out why. He was advised to contact the owner who responded, “the confusion was you texting me saying ‘it’s time to part our ways.’” The complainant said that he had only quit his job in Pub 2 and that he wanted to continue working around 20 hours a week in Pub 1. He said that the owner refused to reinstate him on the TWSS, claiming that he had told an associate that he didn’t want to continue working for the respondent because he didn’t enjoy it and he had a new sales job with another company. The complainant said that he said “no such thing to anybody.” It is the complainant’s case that the respondent “wanted to get rid of me for refusing to withdraw the claim.”

Was the Complainant Dismissed?

As there is a dispute between the parties concerning whether the complainant resigned or was dismissed, I must first examine the evidence and reach a conclusion on that matter.

I have considered the details of the complaint which was submitted on April 29th 2020.   I have listened carefully to the evidence of the respondent and the complainant at the hearing on November 4th 2020 and I have taken account of the text messages sent between the parties in March and April 2020 which were submitted after the hearing.   On December 23rd, the complainant provided a further submission concerning his earnings from his self-employed job and another bar job that he took up after he finished working for the respondent. He also responded to the points made by his employer at the hearing itself. Having taken account of all this evidence, I have reached the following conclusions:

Following his assault in November 2019, the complainant said that he didn’t want to work in Pub 2.   It also turns out that he was prevented from working there by the company’s insurers, who advised that there was to be no cross-over of staff between the two businesses. He was informed of this on March 18th 2020. As he had clearly expressed a desire not to work in Pub 2 and, as he was told that he was “forbidden” by the insurers from working there, there was no need for him to resign. When he wrote to the respondent on March 19th, he said, “if the insurance company have effectively forbidden me from working in Pub 2 then I think that’s the case either way…” I interpret “either way” to mean both pubs. It was not unreasonable for the respondent to interpret this and the statement, “now would be the least disruptive time for me to part ways” as his resignation. The complainant said that “the least disruptive time” meant during the period of the Covid closure. If the complainant had not intended to resign from both pubs, it is my view that he would have said something like, “I want to continue in Pub 1, but I’m finished in Pub 2.”

On March 30th 2020, the manager of Pub 1 wrote to the complainant to ask him if he had applied for the PUP. He ended his text message with “c u soon.” It is apparent from this that, on that date, the manager of Pub 1 was not treating the complainant as if he had been dismissed.

On April 3rd, the respondent sent a text message to the complainant, referring to his message on March 19th and ending with, “If you ever want to change your mind or want to meet up let me know.”   This is not the language of an employer who has dismissed his employee.

After the complainant was assaulted in November 2019, relations between him and the respondent became somewhat strained. It appears that the respondent made some effort to settle the complainant’s personal injuries claim, but the offer of €5,000 was rebuffed. When he sent him the text message saying, “now would be the least disruptive way for us to part ways,” it seems to me that the complainant was keen to exit from a relationship that, as a result of the assault and his pending litigation, might become fractious. When he referred to the €2m pay out to the cellar man in the Long Hall Pub and the takings in Pub 2 from December 2018 until March 2020, it appears that the complainant was setting the context for what he considered to be a more realistic settlement than the €5,000 he had been offered by the respondent.

In any event when, on April 7th 2020, the complainant wrote to the respondent and said that his decision only related to Pub 2, they had a telephone conversation.   At this point, all pubs in Ireland were closed and the respondent advised the complainant to apply for the PUP.   By so doing, the respondent was keeping the complainant connected to his business as an employee who was laid off due to the Covid pandemic. It seems to me therefore, that the respondent effectively rescinded what he assumed was the complainant’s decision to resign. The correspondence between them after April 7th 2020 shows that, when the complainant made it clear that he only resigned from Pub 2 and not both pubs, the respondent accepted this, and encouraged him to do what most of his other employees had done, and apply for the PUP.

In correspondence to me on December 23rd 2020, the complainant said that the sales job that he commenced in February 2020 gave him a guaranteed income of €2,800 per month for six months. He said that he took up a new job in a bar For this reason, in March 2020, he may not have been eligible for the PUP. If he had been included in the cohort of employees being paid the TWSS, he would have received less than the €350 PUP, but he said that he would have been happy with this. Having considered this matter, it is my view that the complainant was not dismissed, and that he is free to resume work for the respondent after the Covid restrictions are lifted. It is my view also that his actual grievance is the fact that he was removed from the TWSS.

Conclusion

It is my view that the complainant was not dismissed, and that he resigned on March 19th 2020 and that he had several reasons for doing so. He had taken on a full-time job for which his qualifications were more suited, compared to working in a bar. He was about to be prevented from working in his “managerial role” in Pub 2, which he appeared to enjoy. He had embarked on litigation against his employer, which may have contributed to a souring of the relationship between them. For all that, while it is my view that he resigned entirely, I also find that the respondent accepted his plea that he intended to resign only from Pub 2. It is my view that the complainant’s case that he resigned from Pub 2 makes no sense, because he was no longer permitted to work there and there was no need to resign.  

In any event, the respondent appears to have accepted the complainant’s change of course and, on April 7th, he treated him exactly the same as he treated the majority of his employees who were then out of work, and advised him to claim the PUP.   No action was ever taken by the respondent to confirm to the complainant that his employment was terminated.

At section 22.13 of “Redmond on Dismissal Law,” by Dr Desmond Ryan, (© Bloomsbury 2017), Dr Ryan refers to the general understanding of dismissal:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt dismissal was intended or that it may be reasonably inferred.”

It is my view that no argument can be made by the complainant that his employer “clearly and unequivocally” informed him that he was dismissed. The complainant initiated the discussion about resigning; he then clarified that he only resigned from part of his job, and with this clarification, the respondent continued to treat him as an employee.   Taking account of all the evidence presented to me at the hearing and in correspondence from both sides afterwards, I have concluded that the complainant was not dismissed, that he remains an employee of the respondent and that he is currently laid off due to the Covid 19 restrictions.

As I have concluded that the complainant was not dismissed, I decide that his complaint under the Unfair Dismissals Act is not upheld.

This is a complaint about the failure of the respondent to pay a Sunday allowance, where the complainant worked after midnight on Saturday evenings. He also complained that his holiday pay did not include pay for working on Sundays.

On his complaint form, the complainant said that he generally worked in Pub 1 for 51 Saturdays a year for four hours each shift, starting at 11.30pm and that he was paid €12.00 per hour. He said that he worked in Pub 2 for an estimated 25 Sunday shifts over two and a half years, for six hours per shift. He earned €11.00 per hour in Pub 2.

At the hearing, the respondent accepted that the complainant was not paid an allowance for working on Sundays. He said that the complainant generally worked every Saturday night / early Sunday morning, except when he was on holidays.

Time Limit for Submitting a Complaint

The time limit for submitting complaints under the Organisation of Working Time Act 1997 is set out at section 6 of the Workplace Relations Act 2015:

“…an adjudication officer shall not entertain a complaint 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.”

An extension of time is provided for at subsection (8) of this section:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

On his complaint form, the complainant said that he contacted the WRC in 2019 about whether the hours he worked after midnight on Sundays should be considered as Sunday hours.   He said that he was advised by the representative in the WRC that they “couldn’t see a reason why it wouldn’t be if it’s Sunday on the calendar.” However, he took no action regarding this matter until he submitted this complaint on April 29th 2020. He made no case for an extension of the time limit.

The Legal Framework

Section 14 of the 1997 Act sets out the entitlement of employees to compensation for working on Sundays:

(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 this legislation that an employee who works on Sundays is entitled to be paid an allowance. It follows logically that the employee must know the value of the allowance and the difference between their normal wages and the rate of pay that applies to Sunday working.

Sub-section (3) of section 14 provides that, where there is no collective agreement in place in a company regarding a Sunday allowance, I must consider the rate that would be applied to a comparable employee in the sector in which the employee works.   My understanding is that, in the hospitality industry, an allowance of between 25% and 33% is generally paid for Sunday working. On his complaint form, the complainant suggested that he should have been paid an allowance of 25%.  

Where there is a finding that there has been a contravention of an entitlement under any provision of the Organisation of Working Time Act 1997 Act, section 27(3) sets out the redress available:

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

Findings

I note that in the case of Viking Security Limited v Valent DWT 89/2014, the Labour Court held that the element of compensation for working on Sundays must be “clearly discernible from the contract of employment or from the circumstances surrounding its conclusion.” No information was provided to the complainant concerning the payment of a Sunday allowance and, at the hearing, the respondent accepted that a Sunday allowance is not paid.

In the case of this complainant, he is paid an hourly rate of €12.00 or €11.00, depending on whether he is rostered in Pub 1 or Pub 2.  

Pub 1

In the six months prior to April 29th 2020, when he submitted this complaint, the complainant worked from November 1st 2019 until March 14th 2020, a period of 19 weeks. He was absent due to an assault for two weeks in November 2019 and the maximum number of Sundays he worked in Pub 1 during that period was therefore 17. At the hearing, the complainant said that he generally worked from 11.30pm until 3.30am at a rate of €12.00 per hour. I find that he was entitled to an allowance of 25% of his hourly rate of €12.00 for 3.5 hours for each Sunday that he worked for 17 weeks. I calculate the value of the allowance not paid to be €178.50 ((17 weeks x 3.5 hours) x €3.00).

Pub 2  

On his complaint form, the complainant said that he worked approximately 25 six-hour shifts on Sundays in Pub 2 over two and a half years. I estimate therefore that, in the final 17 weeks of his employment, he worked four six-hour shifts. I find that he was entitled to an allowance of 25% of his hourly rate of €11.00 for six hours for each Sunday that he worked for four weeks. I calculate the value of the allowance not paid to be €66.00 ((4 weeks x 6 hours) x €2.75).

In accordance with Section 27(3) of the Organisation of Working Time Act (“the Act”), I decide that this complaint is well founded. I order the respondent to put in place a provision for payment of a Sunday allowance in line with the requirement set out at Section 14 of the Act.

I further decide that the respondent is to pay the complainant €500.00 as compensation.   This is just over twice the value of the unpaid allowance of €244.50 and is compensation for the failure to include the Sunday allowance in holiday pay. This award is compensation for a breach of a statutory entitlement and is not subject to tax.

This is a complaint regarding the non-payment of an additional benefit for working on a public holiday, in accordance with Section 22 of the Organisation of Working Time Act 1997. The complainant said that he worked on eight out of the nine public holidays each year and that he was not paid an allowance or given an additional paid day off.

The respondent confirmed that he did not pay a differential rate for working on public holidays.

Time Limit for Submitting a Complaint

In the previous section, in relation to complaint CA-00035932-002, I have addressed the issue of the time limit for submitting a complaint under the Organisation of Working Time Act 1997. In considering this matter, I am concerned with the six months prior to April 29th 2020, when the complaint was submitted.

The Legal Framework

Section 21 of the Organisation of Working Time Act 1997 sets out the entitlement to public holidays:

(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.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

Subsection (3) of Section 21 deals with the circumstances in which an employer does not determine which of the benefits at (a), (b), (c) or (d) above apply:

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay.

Findings

In the absence of any records, I find that, during the period from November 1st 2019 until March 14th 2020, a period of 19 weeks, the complainant worked on the public holidays on December 26th 2019 and January 1st 2020. I also find that, in accordance with Section 23(2) of the Act, he was entitled to the benefit of the public holiday that fell on March 17th 2020, even though the pubs were closed on that date. I find therefore that the complainant is entitled to an additional day’s pay for these three days. I estimate that he worked for four hours on each of the three public holidays in Pub 1 and for six hours on each day in Pub 2.

Pub 1

I calculate the value of the amount not paid for the three public holidays to be €175.50 ((0.5 hours x €12.00) + (3.5 hours x €15.00) x 3 days).

Pub 2

I calculate the value of the amount not paid for the three public holidays to be €198.00 ((6 hours x €11.00) x 3 days).

In accordance with Section 27(3) of the Organisation of Working Time Act (“the Act”), I decide that this complaint is well founded. I order the respondent to put in place a provision for payment of a benefit for working on public holidays in line with the requirement set out at Section 21 of the Act.

I further decide that the respondent is to pay the complainant compensation of €750.00, equivalent to twice the value of the benefit not paid in the six months prior to the submission of this complaint. This award is compensation for a breach of a statutory entitlement and is not subject to tax.

This is a complaint concerning the fact that the complainant earned €12.00 per hour in Pub 1 and €11.00 per hour in Pub 2. He said that he wants to question whether he should have been paid the same rate in both pubs.

The complainant also claims that he may have lost out on the value of notice pay not received.

Due to the time spent on the complaints already adjudicated on above, there was no time remaining at the remote hearing to hear the evidence of the respondent regarding this issue. However, in respect of this complaint under the Payment of Wages Act, I am satisfied that the employer has no case to answer.

As there was no illegal deduction from the complainant’s wages, I find that there has been no infringement of Section 4 or 5 pf Payment of Wages Act 1991. Since he commenced employment with the respondent, the complainant worked in the two pubs at two different hourly rates. I find that this falls under the heading of a grievance rather than a complaint under the Payment of Wages Act.  

Regarding his complaint that he may not have been paid in lieu of notice, under CA-00035932-001 above, I have concluded that the complainant was not dismissed. I find therefore, that he is not entitled to pay in lieu of notice.

As I have concluded that there has been no infringement of Section 5 of the Payment of Wages Act 1991, I decide that this complaint is not well founded.

Dismissal, resignation, Sunday working, public holiday pay