Complainant

Respondent

Parties

Kleber Robert Mazeto

Falafull Cuisine Limited

Representatives

Not represented

Not represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00039238-001

19/08/2020

The complainant is a chef and he worked for the respondent’s restaurant until March 29th 2020.  He worked 40 hours each week and he was paid €10.50 per hour.  This is a complaint about the non-payment of wages and holiday pay that the complainant claims he did not receive when his employment ended.

The complainant said that he started working for the respondent on April 24th 2019.  The owner disputed this and said that he worked for her for three years.  The complainant said that he was paid €10.00 per hour, although a payslip submitted in evidence shows that he was paid €10.50 per hour.  The complainant’s case is that he didn’t get paid four weeks’ wages in respect of the hours that he worked for the complainant in March 2020.  He said that he was last paid in February 2020.  He also claimed said that he didn’t get paid for holidays.

While not included in his complaint form, at the hearing, the complainant said that he didn’t get any extra pay for working on Sundays.

The owner of the restaurant said that the complainant was a trusted member of staff who worked for them for over three years.  She said that his wages were paid monthly directly into his bank account, but that shortly before the end of March 2020, he asked to be paid in cash.  She said that he was paid in cash and he signed his payslip.  The restaurant did not close during the Covid 19 pandemic and continued to provide a takeaway service.  The owner said that they needed the complainant at work, but he didn’t turn up.  When she phoned him to ask him to come in to work, she said that the complainant’s response was, “I might as well stay at home” and he stopped taking her calls.  The owner said that she assumes that the complainant applied for the pandemic unemployment payment, although work was available for him.

The owner said that she was contacted by someone from the WRC who advised her not to dismiss the complainant.  She said that it was not her intention to dismiss him and that she wanted him to come in to work. 

With regard to holidays, the owner said that when the complainant took time off, he was paid.  She said that the complainant’s rate of pay for Sundays was included in his hourly rate of €10.50.

Following the submission of this complaint to the WRC in August 2020, an inspection was carried out by the Inspection Services and the respondent said that she provided copies of her employees’ payslips, contracts and timesheets to the inspector.  It was not possible for me to retrieve these documents from the Inspection Services, and I wrote to the respondent following the hearing and asked her to submit the complainant’s payslips, contract and any other documents relevant to his complaint.  On July 8th 2021, I received copies of the documents that I looked for.

Payment of Wages

The documents sent in by the respondent include a copy of the complainant’s payslip for the four weeks ending on March 22nd 2020.  This shows that he worked 106 hours during that period and that he was paid €1,113 gross at his hourly rate of €10.50.  Due to a tax credit of €29.04, he received €1,333.64 in net pay.  His payslip is signed, and the signature appears to me to be his, being similar to the signature on the copy of his contract, which was also submitted to me on July 8th 2020.  I find therefore that, contrary to his assertions, the complainant was paid his wages for the last four weeks that he worked with the respondent.

Sunday Allowance

Also included in the documents sent to the WRC by the respondent, are copies of rosters for nine employees for the weeks commencing February 24th, March 2nd, March 9th and March 16th.  These show that the complainant worked for five hours on two Sundays and for eight hours on another Sunday and for four hours on the fourth Sunday.

Section 14 of the Organisation of Working Time Act 1997 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 restaurant business, an allowance of between 25% and 33% is generally paid for Sunday working. 

The complainant’s contract of employment is dated February 1st 2020 and, under the heading of “Remuneration,” it states,

“Your salary will commence €10.50 per hour including of Sunday (sic) and Payslips and Salary will be four-weekly.”

On February 1st 2020, the national minimum wage increased to €10.10.  It is apparent therefore, that, at a maximum, an allowance of 40 cents per hour for all hours worked from Monday to Sunday was applied as a Sunday premium.  From my calculations, 40 cents per hour is equivalent to an uplift of just under 40% on the hourly minimum rate of pay.  As this is an uplift on all hours worked, and not just the hours worked on Sundays, the allowance may not be unreasonable.  However, this analysis assumes that the rate of pay for “normal hours” is the minimum rate of pay.  It also takes no account of whether an employee works long or short hours on Sundays.     

Findings

In relation to the complaint regarding non-payment of wages, I have concluded that the complainant was paid his wages up to March 22nd 2020.

Regarding a Sunday allowance, I accept that the complainant is paid a premium for working on Sundays and that this premium is included in his normal hourly rate of pay.  While section 14(1)(b) of the Organisation of Working Time Act permits the payment of a higher rate of pay to include a Sunday allowance, 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.”  The only information provided to the complainant concerning the payment of a Sunday allowance is the reference in his contract to the fact that the hourly rate is €10.50 and includes Sunday pay.  While the Sunday allowance may be factored into the normal rate of pay, the complainant is not informed about what their normal rate is, and the value of the Sunday allowance.

The complainant alleged that he was not paid holiday pay.  He gave no details about this complaint, and I assume that he claims payment for holidays not taken up to the date that he stopped coming to work.  The complainant has not been dismissed, and, as he did not resign, he will have an opportunity to take his holidays at some point after he returns to work.

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.

I decide that the complaints under the Payment of Wages Act concerning wages, Sunday pay and holiday pay are not well-founded.  In accordance with section 27(3)(b) of the Organisation of Working Time Act, I decide that the employer is to comply with the provision to pay a Sunday allowance by clearly communicating in the complainant’s contract of employment, the difference in the rate of pay between “normal pay” and Sunday pay.

Payment of wages, Sunday allowance