Complainant

Respondent

Parties

Derrick  Connors

Jason's Chinese Takeaway

Act

Complaint 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-00040230-002

03/10/2020

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

CA-00040230-003

03/10/2020

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

CA-00040230-004

03/10/2020

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

CA-00040230-005

03/10/2020

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

CA-00040230-006

03/10/2020

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

CA-00040230-007

03/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00040230-008

03/10/2020

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

CA-00040230-009

03/10/2020

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

CA-00040230-010

03/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00040230-011

03/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00040230-012

03/10/2020

The complainant has been an employee of the respondent since 2006, as a delivery driver for his Chinese Takeaway.

At first, he worked two days per week then, around 2008, this increased to six days per week.  His shifts were then reduced to two days per week in 2014.

His wages are a matter of dispute and his income was substantially made up of tips.

The employment terminated on October 2nd, 2020.

The complainant says that problems began when the owner’s wife started to work on the counter.

She would regularly make mistakes and blame the complainant.

For example, she would get the address or order wrong and argue so as to not pay the complainant for the delivery, which meant he had to shoulder the costs of any unpaid delivery.

He believes the respondent told customers that he had in fact received the order for delivery and that it was on its way, when in fact the food had not even been cooked. This sometimes resulted in abuse from customers. He regularly asked the owner and his wife not to do this, but it fell on deaf ears.

Additionally, he was not given meal breaks but was given a meal to take with him on the delivery run.

He has not been given a statement of his Terms of Employment, nor has he been provided with pay slips, and he was criticised for asking for them.

He has also asked that driving hours be recorded as he often does deliveries past 01.00 without breaks or overtime.

On Sunday  August 16th  2020 he had a childminding problem but when he phoned the respondent to inform them of the situation, he could not get through. On arriving for work the owner’s wife shouted at him in front of three customers for being late.

He explained he was late was because he had to collect his child, but she continued to shout at him, and he left.   The following day he contacted the respondent to enquire regarding his employment to be told that he had left of his own accord and that his employment had been terminated.

In response, he explained that he had to walk away from the owner’s wife because of her conduct towards him in front of customers and repeated that the reason he was late was the problem with collecting his child.

He contacted SIPTU which negotiated his return to work and the provision of payslips, holiday pay entitlements, terms of employment be provided, payment for overtime and compliance with tax regulations.

Immediately his working hours were reduced. He did not receive any additional pay for working Sundays and neither payslips nor holiday pay which had been promised materialised.

He brought this to the attention of the respondent in August, but nothing was done.

On reviewing his Revenue payments, it then emerged COVID payments under the Temporary COVID-19 Wage Subsidy Scheme had been claimed but not passed on to him.

The respondent says that the complainant quit his employment voluntarily.  

The respondent says he was supportive and accommodated him working elsewhere by being flexible about starting times etc.

The only reason he left was because he got better job nearer to home.

He never requested holiday pay or a contract, and he was paid an annual bonus of €100.

While there are eleven distinct complaints (CA-00040230-002 to 012) it is convenient to view them as follows. (Number references are the appendage to the main complaint number CA-00040230)

Four arise under the Organisation of Working Time Act (002, 004, 005 and 006) and relate to annual leave, wages and Sunday premia and public holidays respectively.

Four relate to Terms of Employment (007, 008, 009 and 012).

One (003) is a claim for wages under the Payment of Wages Act, 1991.

One is a complaint under the Unfair Dismissals Act (010) and one is a complaint of penalisation under the Parental Leave Act (011).

In approaching the complaints, I take into account the following.

The complainant worked variable hours over two days per week and stated in evidence that his hours were about fourteen per week.

His average income was €240 per week, but this included tips from customers. The respondent said he paid the complainant a basic €60 per day. The complainant said this was only €30.

From this it is clear that something between a half and three quarters of the complainant’s income was derived from tips for customers.

As to the status of tips as part of income the following is relevant and important. It is taken from the 2018 Report of the Low Pay Commission ‘A Review of Current Practices into Tipping and Gratuities’. (LPC No 10 2018).

The practice of tipping has been defined as ‘money exchanged from customer to service provider which is not legally required by the agreement for purchase of the service (Casey, 1998).’ Tipping in Ireland is primarily associated with the hospitality sector. However, evidence from submissions and international comparisons suggests that it may extend to a wide range of other professions including taxi drivers, hairdressers, tour guides, croupiers and delivery drivers. While tipping may be relatively widespread in a number of industries, there is nothing in Irish law which states that an employee is automatically entitled to keep their tips.

As an example of how tips are currently viewed in Ireland from a legal/industrial relations standpoint, a complaint was brought before the Workplace Relations Commission (WRC) in November 2017 by a hotel porter who claimed that their employer was not passing on tips and gratuities to staff. The WRC was of the view that the key question to consider was whether tips are considered wages under the Payment of Wages Act. They also pointed to the fact that there was no reference to tips in the complainant’s employee contract and that his remuneration was clearly outlined at an hourly rate. The Adjudicator ultimately ruled that tips are not wages payable within the meaning of Section 1 of the Payment of Wages Act and therefore the complaint failed.

Under the National Minimum Wage Act 2000, ‘any amount distributed to the employee of tips or gratuities paid into a central fund managed by the employer and paid through the payroll’ is defined as a non-reckonable component when it comes to the calculation of the National Minimum Wage.

While tips cannot be used as a reckonable component for calculating the National Minimum Wage and are not considered wages under the Payment of Wages Act, the ownership of tips is not addressed anywhere in Irish legislation and therefore there is nothing to stop an employer from taking ownership of employee tips.

The report goes on to note, (page 7) and I accept this for the purposes of these complaints, that tips are not included within the definition of wages, as described in section 1 the Payment of Wages Act 1991.

If one excludes the complainant’s tips it is clear from this that he was not being remunerated in accordance with the National Minimum Wage, even on the respondent’s higher figures. The hourly rate for seven hours works out at €8.57; considerably less if the complainant’s assertion regarding his income and excess hours is correct.

The statutory minimum for that period was €10.10. In my view I am obliged to base my calculations and awards on no less than the statutory, legal minimum.

Considering the complaints in the order they are listed above, it was not disputed that the complainant had never received paid annual leave, or payment in lieu at the point when the employment terminated.

His complaint in relation to wages arises from the fact that while his income was fixed, his hours were not, and they could exceed the expected shift by an hour or more, on occasion, often bringing his finishing time to beyond midnight.

The respondent disputed this, saying that it would only happen once a month on average.

It is not disputed that he received no extra payment for working on a Sunday.

It emerged in the course of the hearing that the complainant had been given a statement of his terms of employment which he had signed. However, they could not be produced when he had asked for them and had not been amended to take account of changes in his hours.

Regarding the Organisation of Working Time Act complaints, the complainant said he never got any payment for public holidays and this was not disputed.

There was a disagreement over rest periods. The respondent insisted that the complainant got regular ten to fifteen-minute breaks. The complainant said that he was regularly hustled to finish his meal and to get back to work or take it with him. There were no records kept of the complainant’s hours.

Turning to the complaint of constructive unfair dismissal, the complainant relies on his having raised the issues related to annual leave and other conditions in August 2020 and the failure of the respondent to act on his grievance as justifying his resignation.

What appears to have finally triggered the resignation, however, was his discovery of the issue related to the alleged discrepancy in the Covid-19 payments at the end of September.

He raised this with the respondent on October 2nd and resigned immediately thereafter. 

The law related to constructive dismissal is clear.

A constructive dismissal takes place when an employer’s behaviour is so unreasonable that the employee is justified in unilaterally breaking the contract of employment.

The burden of proof is set high in such cases for the same reason that it is in unfair dismissals cases of the normal type. A breach of the employment contract sufficient to fall under the Unfair Dismissals Act must be very serious and well justified.

The critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

The Supreme Court has said that;

 ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

The complainant’s case primarily rested on alleged inaction on the part of the employer (the failure to respond to a grievance) rather than specific acts of unreasonable behaviour.

There was also the issue related to the Covid-19 payments, but the respondent was given little if any opportunity to respond to these as the complainant resigned on the day he brought them to the respondent’s attention.

There are undoubtedly circumstances where omission or failure to respond to a grievance may form part of unreasonable behaviour by an employer sufficient to ground a successful case, but this is not one of them.

In fact, the complainant did nothing or almost nothing between raising the issues in August and his resignation. In his evidence he stated that the Covid-19 payment matter was ‘the straw that broke the camel’s back’.

However, the only burden on the camel’s back up to that point was the initial raising of the issue in August and a vague and unconvincing reference to a conversation on September 11th, although the complainant was not sure either of the date or what was said.

While the failure of the business owner to respond does not reflect well on him as an employer, on these facts it does not justify the complainant breaking his contract of employment and then pleading constructive dismissal.

This is especially the case as it appears the final decision was a peremptory one related, not to his request for improvements to his terms of employment which did not feature in the October 2nd conversation at all, but his reaction to the Covid-19 payment issue.

As noted above the complainant had done this before, on relatively little provocation.

Given the respondent’s rather cavalier attitude to compliance with his employment law obligations the complainant might well have reached a point where he would have been justified in resigning, but he had definitely not reached it on these facts on October 2nd.

The respondent says he left because he got employment that was more convenient to his home.

Judged by the Berber test, and the general principles applicable to a constructive dismissal the case falls very far short of what is required both in respect of his employer’s and his own behaviour

Finally, regarding the complaint of penalisation, this relates to the incident when the complainant had been delayed in getting to work because of child minding problems, and according to his evidence, being made the subject of unfair criticism for failing to be at work by the business owner’s wife.

Following this he decided to leave his employment (the first time, in August 2020).

However, while he says he did so, there was no evidence beyond this simple assertion of the complainant having made a complaint under the Act. More significantly, it is not possible to identify what the act of retaliation was alleged to have been.

On that occasion, the alleged conduct of the owner’s wife (who did not attend the hearing or give evidence) took place on the day in question and he subsequently left. This might have provided a better basis for a complaint of constructive dismissal than the one he actually made but in the event the matter was resolved following the intervention of SIPTU and that ended that phase of the narrative.

He returned to work on the basis of a number of undertakings, which he says were not honoured.

The complainant was in the respondent’s employment for fourteen years.

According to his account, his issues began in a series of confrontations with the owner’s wife, and this appears to have led to a general deterioration in the employment relationship.

Until that happened, both sides were content with the relationship, even those aspects of it which were clearly not compliant with employment rights law. 

The respondent appeared to believe that his various obligations related to annual leave etc were covered by an annual payment to the complainant of €100. That said, so did the complainant, or at least he never asserted his claim to the rights (and they are rights) he now asserts and until the deterioration in his working relationships.

There was no record of the respondent maintaining any records of hours, breaks or leave of any sort and accordingly the complainant is entitled to the benefit of the doubt on these issues, although, in fact, there is very little doubt involved.

However, the cognisable period for any remedy is the period up to six months before the complaint was submitted on October 3rd, 2020, i.e. from April 4th, 2020.

CA-00040230-002 Annual Leave.

That period contains, by my estimate twenty-six weekends on which the complainant would have worked. On the basis of his weekly earnings of €141.40 he is entitled to holiday pay of €294.12 (€141.40 x 26 x 0.08%)

CA-00040230-003 Wages

The respondent conceded that the complainant could have worked excess hours once a month. However, as he maintained no records of working hours he could not verify this.

I see no reason, having regard to the nature of the work to doubt the complainant’s assertion that it was more regular than this an I assess it as being one hour per week.

This entitled the complainant to twenty-six hours pay at €10.10 per hour; a total of €262.60.

CA-00040230-004 Sunday premium.

The complainant worked every Sunday but received no premium for doing so. A premium of 25% would add €2.52 to the complainant’s hourly rate or €17.67 per day. Over twenty-six Sundays this comes to €459.55.

CA-00040230-005 Rest periods

There was a conflict in the evidence but even allowing for that, it was clear that there was no formal system, and definitely no record of any system to ensure that the complainant was given breaks, unless they happened to fall by good fortune between his runs.

It is of a piece with the casual indifference to employment rights demonstrated by the respondent and I award the complainant compensation in the amount of €1000.00.

CA-00040230-006 Public Holidays

Similar comments apply here as to the rest periods above. I award the complainant €1000.00

CA-00040230-007, 008, 009, 012. Terms of Employment

The complainant claimed that he had been given no statement of his terms of employment under the Terms of Employment (Information) Act, 1994. (complaint 007).

In fact, the respondent had done so, and a copy was shown in evidence. This complaint is not well founded, although I note that the respondent failed to provide it on request and in a timely manner and it had not been amended to take account of changes in the complainant’s terms of employment.

This complaint fails as does complaint 009 relating to the statement of core terms.

He also complained under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/20 (complaints, 008, and 012).

Here he complained that he had not been notified of the regulations applicable to his work (008) and not provided with records when requested (012)   I accept that this was the case and both these complaints succeed and I award him €750.

CA-00040230-010, Unfair Dismissal, 011 Penalisation.

For the reasons set out above neither the complaint of constructive unfair dismissal nor of penalisation under the Parental Leave Act are not well founded. 

For the reasons set out above I find as follows.

Complaint CA-00040230-002 is well-founded I award the complainant holiday pay of €294.12.

Complaint CA-00040230-003 is well-founded. I award the complainant twenty-six hours pay at €10.10 per hour; a total of €262.60.

Complaint CA-00040230-004 is well-founded. I award the complainant €459.55.

Complaint CA-00040230-005 is well-founded. I award the complainant compensation of €1000.00

Complaint CA-00040230-006 is well-founded. I award the complainant compensation of €1000.00

Complaints CA-00040230-007, 009 are not well-founded.

Complaints CA-00040230-008 and 012 are well-founded and I award the complainant €750.

For the reasons set out above neither complaint CA-00040230-010 nor CA-00040230-011

is well founded.

Pay, Time off, records, constructive dismissal, penalisation.