Complainant

Respondent

Anonymised Parties

General Assistant

Fast Food Outlet

Representatives

 none

 none

Act

Complaint/Dispute 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-00038952-001

29/07/2020

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

CA-00038952-002

29/07/2020

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

CA-00038952-003

29/07/2020

The complainant was employed as a General Assistant with the respondent who operates a fast food outlet.  She commenced employment on 04/10/2019.  She was paid €10.00 per hour.  Her employment was terminated on 08/03/2020 as a result of a failed probationary period.

The complainant applied for a role of General Assistant with the respondent and commenced employment on 04/10/2019.  She was issued with a contract of employment which set out the basic terms of her employment.  Section (g) of that contract states: “Rate of Remuneration - €10.00 according and complying to the latest revision of National Minimum Wage Act per hour.  Which is a composite rate of Minimum Pay and a Sunday Premium of €0.20 value of the Sunday premium.  Pay rate will change when the National Minimum Wage will change and cover our obligations to provide you with a Sunday Premium rate for those hours you work on a Sunday.”  The complainant submits that she did not receive any holiday pay when employed by the respondent.

The complainant also claims that when the National Minimum Wage changed on 01/02/2020 she was not paid the corresponding increase on her Sunday Premium and did not receive this for the period 01/02/2020 until 08/03/2020.

The complainant attended a probationary review meeting on 07/03/2020 and as a result of that review here employment was terminated on that date.  She did not receive any pay in lieu of notice.

The respondent operates a small family fast food business with 3 to 4 employees.  They have been in business for approximately 20 years and operate their business in full compliance with the Terms of Employment Act.  They provide all employees with all the necessary documentation as required by law. 

In relation to the complaints submitted by the complainant the respondent submits that when the complainant commenced employment she was 18 years of age and was due €8.08 per hour.  However, they decided to pay her €10.00 per hour which was a composite rate to include Sunday Premium and holiday pay.  The respondent submits that this was explained to the complainant when she was offered the position.

When the complainant’s employment ceased she was paid an additional sum of €46.80 and this was for the changes due as a result of the increase in the National Minimum Wage. The respondent contents that the complainant was fully compensated for working on Sundays.

The complainant’s employment was terminated on the grounds that she had not successfully completed her probation.  She had less that 12 months service and the respondent believes that no payment in lieu is due.  The complainant had received three written warnings prior to her dismissal and was aware that if her performance did not improve her employment would be terminated.

The complainant submitted three complaints in relation to her employment with the respondent.

CA-00038952-001:  The complainant is seeking payment for holidays accrued during her employment with the respondent.  She worked from 04/10/2019 until 08/02/2020 and during that time she worked a total of 499.25 hours. 

When her employment was terminated she raised a query with the respondent who responded with the clarification that she was paid “€10.00 per hour which was a composite of Minimum Pay of €8.08 plus 0.20 per hour to cover our obligation for Sunday premium, plus 8% per hour to cover our holiday pay obligation, plus good will to cover other obligation as per contract of employment.  You’ve been paid in full including holiday pay and way more above minimum due to a person aged 19 and no further payments are due to you.” 

The complainant followed this with a clarification that this was not noted in her contract of employment and therefore was entitled to 8% holiday pay in accordance with part 3 of the Organisation of Working Time Act 1997.    The respondent replied: “Read Part G of your contract and stop bothering me with your texts.”

 The complainant made a further response confirming her understanding that the minimum pay was €9.80 per hour and a further 0.20 per hour for Sunday working she failed to understand where the 8% holiday pay calculation was included.  At the hearing the respondent said that their contract of employment was changed in 2018 to reflect the specific Sunday premium following advice from the Workplace Relations Inspection service.

The Organisation of Working Time Act 1997 s.19 states:

19.(1) “… an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave” equal to-

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment).

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. Of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)”.

The Act also deals with compensation where an employee ceases to be employed:

23.-(1) Where-

(a) an employee ceases to be employed, and

(b) the whole or any portion of the annual leave in respect of the current leave year or in the case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave or both those years remains to be granted to the employee, and the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate, or, as the case may be, at a rate proportionate to the normal weekly rate, that the or she would have received had he or she been granted that annual leave.”

Having reviewed the contract of employment issued to the complaint I am satisfied that section (g) expressly states the hourly rate of pay and the pay for Sunday premium what will be included in the rate of remuneration.  There is no reference to holiday pay and section (j) of the contract of employment deals with paid leave and specifically annual leave entitlement.  This section was not completed.  Having heard the evidence from both parties I find it difficult to see how the complainant’s holiday pay could be calculated and included in the composite hourly rate.  In that context I find that this complaint is well founded.  During her period of employment, she worked a total of 499.25 hours and is therefore entitled to be paid for 39.94 hours annual leave. 

CA-00038952-002:  The complainant initially started on the then prevailing Minimum Pay per hour along with a payment for Sunday premium pay.  She was paid €10.00 per hour as a composite rate.  When the Minimum pay rate changed on 01/02/2020 she was not paid the appropriate Sunday premium from 01/02/2020 until her employment ceased on 08/03/2020. 

The respondent submits that the complainant was paid and provided evidence of a payment of €46.80 in her pay slip dated 29/02/2020.  The respondent notes that this was paid under a generic heading of “Hol/Bonus/Other”.  

Having considered the evidence provided at the hearing I accept the respondent’s position that this payment was a reconciliation of what was due to the complainant as a result of the changes to the minimum wage.  This complaint is not well founded.

CA-00038952-003: The complainant was informed by the respondent on 08/03/2020 that her employment was terminated. The reason for the termination was specifically due to ongoing performance issues. She was not given any notice or paid in lieu of notice.  Having worked for five months she submits that she was entitled to a weeks’ notice in accordance with the provisions of the Minimum Notice and Terms of Employment Act 1973. 

The respondent believes that as the complainant had less than 12 months service no payment in lieu was due to her.  The respondent also submits that because they strictly adhered to their disciplinary procedures, which the complainant acknowledged and signed, she was aware that with an accumulation of warnings in relation to performance issues she was aware that her employment would be terminated if there was no improvement.   The respondent also submits that as she was on probation at the time of her dismissal no notice or payment in lieu of notice was required.

The Minimum Notice and Terms of Employment Act, 1973 sets out the minimum period of notice to terminate the employment of those who have been employed for a qualifying period:

S4.(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of section (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employment shall be-

(a) if the employee has been in the continuous service of his employer for less that two years, one week,”

It is clear from the evidence provided at the hearing that the complainant worked for a period of eighteen weeks which gives her an entitlement to a period of notice one week as outlined in the Act.  I accept that the respondent felt that he was in the process of progressing the disciplinary policy. The obligations in the Act are designed to ensure that employees receive notice to terminate their employment commensurate with their period of employment.  In view of the foregoing I find that the complaint is upheld. The complainant is entitled to one weeks’ notice and I award her the sum of one week’s pay of €240.40 based on her average earnings.

CA-00038952-001: I find that the complaint is upheld and I order the respondent to pay the complainant €399.40 for the 39.94 hours annual leave due. I also order the respondent to ensure that he takes steps to clarify the annual leave entitlement for employees and do so in terms that are clear and unambiguous.

CA-00038952-002: I find that this complaint is not upheld.

CA-00038952-003: I find that this complaint is upheld and I order the respondent to pay the complaint the sum of one week’s pay of €240.40 based on her average earnings.

I order that the above sums are paid within 42 days of the date of this decision.

Holiday pay.  Pay in lieu of notice.  Minimum national wage