Complainant

Respondent

Parties

Debora Cristina  Faria De Assis Pereira

Emi Restaurants Ltd  

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039277-001

19/08/2020

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

CA-00039277-002

19/08/2020

The complainant worked as a waitress in the respondent’s restaurant in from January 7th  2019 until March 16th 2020, a period of approximately fourteen months. 

The restaurant ceased trading due to the Covid-19 pandemic and has not re-opened. 

This is a complaint about the non-payment of wages, payment for annual leave and public holidays and a Sunday allowance.

The complainant says she was paid €10.10 per hour and was laid off in the early stages of the pandemic.

She says she is owed wages of €310.00 in respect of her starting week (the ‘lying’ week)

She also says that she is owed payment for annual leave not taken, and that she did not get any allowance for working on a Sunday.

The respondent business is in liquidation.  

Neither the liquidator or the respondent attended the hearing.

On May 18th a few days before this hearing on May 21st the respondent wrote to the WRC claiming that the complainant had been paid by the  ‘Department of Social Welfare’ (sic).

The complainant confirmed by email to the WRC the following day in writing that she had not been paid and repeated this at the hearing.  

In a separate complaint by colleagues of this complainant heard by Adjudicator Catherine Byrne on June 10th she notes that on June 2nd, 2021 the restaurant owner sent an email to the WRC in which she said that the company went into liquidation in 2020 and that forms were sent to the complainant to fill out details of wages etc owed to her and her co-workers. 

(The decision in this other complaint can be found in ADJ 29682).

On June 8th, 2021 (again subsequent to the hearing of this complaint and in relation to the second hearing), the owner wrote to say that all staff had received monies due to them from the DoSP. 

In this communication, the respondent said that she would not attend the hearing on June 10th and she was informed that the hearing would proceed in her absence. It would have been of assistance had the respondent attended one or both of the hearings.

On the morning of that other hearing on June 10th, 2021 (ADJ 29682), the liquidator, wrote to the WRC again saying that ‘This employee’s claim has been paid by the Department of Social Protection and the payment has been made to the employee. This should allow the claim to be withdrawn’.

The liquidator was advised in that case that a complaint may only be withdrawn by a complainant. Tha also applies in this case and as the complainant has not done so accordingly I find as follows.

The complainant is owed wages in the amount of €310.00 and I make an award of this amount in her favour.

In relation to the complaint about payment for Sundays the delay in making the complaint (August 19th, 2020) means that only the period between February 20th and the termination of her employment on March 16th is within the cognisable period required by the Act for a claim to be made.

Four Sundays fall within this period and her evidence was that she worked every Sunday.

Details of the shift length were not submitted but on the basis of applying a premium of 25% on the basic National Minimum Wage payment, I estimate she is due approximately €75.00.

Complaint CA-00039277-001 under the Payment of Wages Act 1991 is well-founded and I award the complainant €310.00 in wages due to her.

Complaint CA-00039277-002 under the Organisation of Working Time Act, 1997 is well-founded and I award the complainant €75.00

Liquidation, wages, notice