Complainant

Respondent

Anonymised Parties

A chef

A shop

Representatives

  Complainant

Respondent

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-00034576-001

11/02/2020

The complainant worked as a chef for the respondent.  In the first year of her employment she was paid a lump sum in respect of over time worked. When she left her employment she was not paid for overtime carried out in that year.

The complainant was employed as a chef with the respondent to work 40 hours per week at a rate of €15 per hour. She regularly worked additional hours and the arrangement with the respondent  was that the complainant would record these additional hours in a notebook and the respondent would pay her in a lump sum. This arrangement was in place in 2017 and 2018 and the complainant received all monies owed without difficulty. The complainant resigned her position in October 2019 and, when she requested the respondent to pay all outstanding monies, he did not. The complainant then wrote on 18th November 2019 enclosing a copy of the additional hours worked throughout the year for which she had not been paid. The complainant offered to meet the respondent to discuss this matter but he ignored her. In 2019, the complainant worked an additional 335 hours for which she is due payment.

The respondent relied on the rota of work to inform employees of the maximum hours they would work.  The respondent always said no to overtime and believed that in fact he was overstaffed. While overtime may have been paid at the commencement of the complainant’s employment this stopped when he had 5 staff employed. The fact that no overtime was payable was agreed with the complainant.

Payment of Wages Act 1991

Section 5 (6) of the Payment of Wages Act 1991 states;

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

 then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Section 6 (4) of the Act specifies the time limits that apply to making complaints as follows;

4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable

The shortfall in pay claimed by the complainant relates to 2019.  The complaint was made on 11th February 2020. I note from the evidence given by the complainant that overtime was previously paid in a lump sum.  I therefore accept that the complainant was unaware before she left on 30th October 2019 that she would not be getting the money she believed she was owed.  In light of the previous practice of payment by lump sum, any money owed became due on that date.

The respondent said in evidence that he never authorised overtime.  However, it is clear that overtime was paid previously to the complainant and that the manager authorised the overtime.  The respondent has acknowledged that there is no contract of employment or formal record of the terms of employment.  It is in such a document that any express term relating to overtime would be found.  The custom and practice therefore, of paying for overtime in year one is an implied term in the complainant’s terms of employment.  I therefore conclude that the complaint is well founded.

The complaint is well-founded and I order the respondent to pay the complainant the net amount of the wages (after the making of any lawful deduction therefrom)due, based on 335 hours at €15 per hour. 

Arrears of wages