ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027224
Parties:
| Complainant | Respondent |
Anonymised Parties | Chef | Restaurant |
Representatives | none | none |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00034845-001 | 25/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00034845-002 | 25/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034845-003 | 25/02/2020 |
Date of Adjudication Hearing: 15/01/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act (or Acts) contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaints as set out in his workplace relations complaint form dated the 25th of February 2020:
The Complainant herein has referred a matter for adjudication as provided for under Section 12 of the Minimum Notice and Terms of Employment Act, 1973 and the referral has been made within six months of the date on which this claim accrued to the Complainant. In particular the complaint is that the Employee did not receive the appropriate Statutory Minimum notice (or payment in lieu) on termination of the employment and as outlined in Section 4 of the Minimum Notice and Terms of Employment Act 1973.
The Complainant has made two further complaints of contravention under Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 identifies those instances wherein deductions can be made and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required and authorised to be made by virtue of a term of the employee's contract of employment and which was included in the contract before, and in force at the time of the deduction or payment;
The employee has given his prior consent in writing;
Section 5 (2) notes in general terms that the Employer shall not make a deduction from the wages of an employee in respect of any act or omission of the employee. The Employer shall also not make a deduction on respect of any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment.
However the Act does provide that (with reference to the foregoing) the deduction will not be unlawful if the deduction is required or authorised to be made by virtue of a term (whether expressor implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee (i.e. it is on notice), and that the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee).
The claims are all brought within the appropriate time limit of six months form the contravention.
Background:
The Employment relationship herein came to an abrupt end as a result of a row in the workplace. The Complainant is seeking to recover monies he says are still due and owing to him since the end of the employment. |
Summary of Complainant’s Case:
The Complainant gave evidence on his own behalf. He brought me through the documents he had previously supplied to the WRC for this hearing. |
Summary of Respondent’s Case:
The Respondent was notified of the date for hearing but opted not to join the remote hearing. An email received the night before indicated that the premises was shutdown by reason of the pandemic. I do have a submission from the Respondent which was received by the WRC just after the Workplace Relations Complaint Form issued. The Respondent sets forth a claim against the Complainant in the sum of €9,000.00 though it is not clear if this has been acted upon. |
Findings and Conclusions:
The Complainant is an experienced Chef who was engaged by the Respondent company from the 17th of March 2019. The Complainant worked with the Respondent for nearly a year and indicated in evidence that he working between 30 and 40 hours per week. The Complainant indicated that the relationship soured after he had handed in his Notice with his employer in January of 2020. The Complainant says that the Manager became enraged seeing the Complainant on his phone in the workplace. As it happens, the Complainant was trying to figure out what period of Notice he should work for the Employer. He says the Manager started screaming and shouting at him in consequence of which the Complainant left the workplace having been thrown out by the Manager. The Complainant says he was embarrassed in front of customers and colleagues He communicated with his employer that evening stating that he was obliged to work one week of Notice to satisfy his Statutory obligations. However, his Manager said that he had walked out of the workplace. The Manager did not acknowledge that his behaviour had forced the situation though the Complainant did put that to him. The Manager did not invite the Complainant back into the workplace to finish the Statutory Notice period. The Complainant was met with a wall of silence and never returned to the workplace. In consequence of the foregoing the Complainant says that he is at a financial loss and although he tried to resolve the outstanding issues through a letter dated the 23rd of January 2020, the Employer never engaged with him. The Complainant says he is entitled to his Notice period which he had been willing to work but didn’t because the Employer Manger would not let him. Additionally, the complainant says he is owed money for Annual Leave for all the time he worked with the Respondent. In addition, I have been told that the Complainant had a sum of €100.00 deducted from his last wage slip in respect of a uniform he had been provided with at the start of the employment The Complainant has brought me through the figures he had previously outlined in his letter to his Employer sent on 23rd of January 2020. The Respondent communication dated the 16th of March (noted above) purports to reply to the claims set out though I find the responses to be without merit, as they do not appear to understand the nature of employment rights and Statutory obligations. So, for example, the Complainant cannot be determined to have waived his rights to Annual leave and Minimum Notice by reason of some misconceived understanding that the Complainant has walked out on his job. It is also not for the Respondent to offset the €100.00 owed against some future claim for €9,000.00 which the employer intends bringing. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00034845-001 The Complainant is well founded and the Complainant is entitled to one weeks’ Notice in the amount t of €440.00 Gross Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00034845-002 The Complaint is well founded and the Complainant was entitled not to have his full Annual Leave payment deducted unlawfully from his final pay slip. I award the Complainant the sum of €1,260.00 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00034845-003 The Complaint is well founded and the Complainant was entitled not to have the sum of €100.00 unlawfully deducted from his final wage. |
Dated: June 14th 2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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