ADJ-00032796

Complainant

Respondent

Parties

Ahmed Elmady

Vegan Fast Food Limited trading as Little Richard’s Wood Fired Pizza

Representatives

Barry Crushell, Solicitor

Donogh McGowan, Solicitor

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00043472-001

09/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00043472-002

09/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00043472-003

09/04/2021

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

CA-00043472-004

09/04/2021

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

CA-00043472-005

09/04/2021

The complainant is a head chef and he was employed by the respondent in a newly established pizza restaurant.  His contract of employment is dated February 17th 2021, although the parties accept that he did some work when the restaurant was being set up from the end of January.  He resigned on Sunday, March 21st.  His hourly rate when he commenced employment was €16.00 and this increased to €17.00 after two or three weeks in the job.  His normal hours of work were from 2.00pm to 10.00pm, although the roster changed from day to day.

Under Section 24 of the National Minimum Wage Act, the complainant claims that he was working for the respondent before he officially started work and that he is owed wages in respect of that time.  He claims that he came to work on his days off and that he worked additional hours at the end of his shifts.  Under the Organisation of Working Time Act 1997, the complainant claims that he was not paid for working on Sundays and that he didn’t get any breaks.

Summary of the Complaint and the Position of the Parties

The complainant was issued with a contract of employment on February 17th, but he was officially working and on the respondent’s payroll from January 27th.  A copy of the roster produced in evidence shows that he was first rostered from Wednesday, February 10th to Sunday February 14th from 2.00pm to 10.10pm daily.

At the hearing, the company director, Mr McNally said that the complainant came to the restaurant on a number of days before it opened to the public, and he helped to set up the equipment and plan the menus.  He said that, because the complainant wasn’t an employee at that time, on two occasions, he gave him €200 and he also gave him €50 to cover the cost of his petrol.

In response, Mr Crushell submitted that the complainant should have been on the payroll for these weeks and that he should have been paid proper wages.  He said that the number of hours worked by the complainant during these two weeks is questionable, but he estimates that it was between five and eight hours a day.

Findings

The respondent has not disputed the fact that the complainant came to work during the two weeks before his official start date and that he helped to set up the restaurant.  The director paid him for this unofficial arrangement with two cash payments of €200 each plus petrol money.  While in some circumstances, this might have been accepted as a reasonable approach, as the parties are now in dispute, it is necessary to do the right thing for a legal perspective.  Mr Crushell accepted that it is not possible to determine with certainty the hours that the complainant worked when he was helping with the set-up of the restaurant.  The kitchen diary shows that he signed in for nine hours on Tuesday, February 9th, but, apart from this record, it is left to me to determine how this complaint should be resolved.

Decision

I have concluded that there is merit in the complainant’s argument that he was not paid his proper wages for the hours worked between January 27th and February 9th 2021.  However, it is not been possible to establish with certainty the number of hours that he worked.  In accordance with section 26 of the National Minimum Wage Act 2000, I direct the respondent to pay the complainant arrears of €680.00, equivalent to one week’s pay.

Summary of the Complaint and the Position of the Parties

The complainant was generally rostered to work from Wednesday to Sunday from 2.00pm to 10.00pm, with occasional variations to this schedule.  He claims that he came to work on eight of his days off and that he worked between three and four hours on each of these days.

Mr McNally agreed that the complainant came to work on Mondays and Tuesdays to help with making the pizza dough.  He said however, that he was paid for the hours that he worked.  Mr McNally said that the complainant was instructed to record his hours in a diary in the kitchen.  A copy of this diary was submitted in evidence.  Mr McNally said that the complainant did not always record his hours, even though he was reminded to do so.  He said that he might have to phone him at the end of the week to ask him what hours he worked, or he might get a text message from him about his hours.

Mr Crushell accepted that there were occasions when the complainant didn’t sign in in the book in the kitchen; however, he said that it is the responsibility of the employer to ensure that there is a proper record of hours the hours worked by employees.

Findings

It is my view that the sign-in book in the kitchen was an adequate method of recording the hours worked by employees in the restaurant.  I note that the complainant signed in for the days that he was scheduled on the roster, and there is no reason why he could not have signed in on the days that he wasn’t officially on the roster.  The director said that he asked the complainant to tell him what hours he worked each week, and it is reasonable to assume that the complainant told him the hours that he worked.

Decision

I have concluded that the complainant has not established that he worked hours on his days off for which he received no wages.  I decide that this complaint is not well-founded.

Summary of the Complaint and the Position of the Parties

The complainant claims that he worked two or three hours additional hours at the end of each shift and that he was not paid for these hours.

Findings

I repeat my findings with regard to the complaint at CA-00043472-002 above.  The sign-in book in the restaurant kitchen was an adequate method of recording the hours worked by employees.  When he was employed, the complainant raised no concerns about being left short in his wages in any week.  I note that he signed in for the days that he was scheduled to work and he specified the number of hours that he worked.  There is no reason to find that he did not write down the actual number of hours that he worked.  The director said that he asked the complainant to tell him what hours he worked each week.  I note from the WhatsApp messages which were provided in advance of the hearing that, on March 8th, the director sent a message to the complainant asking him how many hours he worked that week because his hours weren’t “in the book.”  The chef replied “42” and the director wrote, “thanks.” 

Decision

I have concluded that the complainant has not established that he worked hours on his rostered days for which he received no wages.  I decide that this complaint is not well-founded.

Summary of the Complaint and the Position of the Parties

The complainant claims that received no additional pay for working on Sundays.  The rosters which were produced in evidence at the hearing show that, between February 9th and March 21st, he worked on five Sundays. 

In his submission for the respondent in advance of the hearing, Mr McGowan said that the complainant’s contract is clear in respect of his requirement to work on Sundays.  Under the heading, “Hours of Work,” the contract states:

“Your normal hours of work are 40 hours per week and eight hours per day, which you will be required to work between the hours of 2pm and 10pm, Monday to Sunday.”

Under the heading, “Remuneration and Benefits,” the contract states:

“Your basic salary is €17 per hour.  This will be paid to (sic) every Friday and will include payment for work done up to and including the previous Sunday.”

Mr McGowan said that when the contract was discussed between Mr McNally and the complainant, it was made clear to him that Sunday was an important day and that he would be required to work every Sunday.  He said that the complainant’s hourly rate of €17.00 takes account of the requirement to work on Sundays.  

Findings

Section 14 of the Organisation of Working Time Act 1997 Act sets out the entitlement of employees to compensation for working on Sundays:

(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

I note that in the case of Viking Security Limited v Valent[1], the Labour Court held that the element of compensation for working on Sundays must be “clearly discernible from the contract of employment or from the circumstances surrounding its conclusion.”  It is clear from the legislation that an employee who works on Sundays is entitled to be paid an allowance.  The decision of the Labour Court shows that the employee must know the value of the allowance and the difference between their normal wages and the rate of pay that applies to Sunday working.  The complainant’s contract did not provide this clarity and he could not have know the difference between his normal hourly rate of pay and the rate for working on Sundays.

Sub-section (3) of section 14 provides that, where there is no collective agreement in place in a company regarding a Sunday allowance, I must consider the rate that would be applied to a comparable employee in the sector in which the employee works.  My understanding is that, in the hotel and restaurant sector, an allowance of between 25% and 33% is generally paid for Sunday working.  It is my view that a premium of 30% should have been paid to the complainant for working on Sundays, equivalent to an hourly rate of €22.10.  

Decision

I decide that this complaint is well-founded and I direct the respondent to pay the complainant €204.00, equivalent to an additional €5.10 per hour for working eight hours a day on five Sundays.

Summary of the Complaint and the Position of the Parties

The complainant’s contract of employment provides that he was entitled to a break of 15 minutes after four and a half hours’ work and another 15 minute break after six hours.  In his submission for the hearing, Mr Crushell said that the complainant never received breaks when he was at work.

Mr McNally said that the complainant always had time to take a break.  He said that, on at least one occasion, he bought an Indian takeaway for him and brought it into the restaurant.  He said that he used to eat a pizza in the kitchen before the restaurant got busy.  Mr McNally said that the restaurant opened at 4.00pm, and was busy from 6.00pm to 8.00pm.  He said that the complainant knew that he could take a break as long as the kitchen was covered. 

Findings

The complainant’s entitlement to breaks during the working day is set out in his contract of employment.  There was no suggestion on the part of the complainant or his solicitor that he was prevented from taking his breaks, and it appears that there was a certain informality in the relationship between the owners and their head chef in this regard.  I agree with Mr Crushell’s observation that “the parties were close” and the complainant did not press this issue with any real impetus.  Mr McNally gave evidence that he observed the complainant taking breaks and, during the five weeks and four days of his employment, he didn’t express any concern about not getting his breaks.

Decision

For most of the time, it seems to me that the complainant was able to take a break while he was at work.  That said, the responsibility for demonstrating this rests with the employer.  As there was no evidence available to show that the complainant went on breaks on the days he was at work, I decide that this complaint is well-founded and I direct the respondent to pay the complainant compensation of €255.00, equivalent to 15 hours’ pay.

CA-00043472-001:  Complaint under the National Minimum Wage Act 2000

I direct the respondent to pay the complainant arrears of €680.00, equivalent to one week’s pay.

CA-00043472-002:  Complaint under the National Minimum Wage Act 2000

I decide that this complaint is not well-founded.

CA-00043472-003:  Complaint under the National Minimum Wage Act 2000

I decide that this complaint is not well-founded.

CA-00043472-004:  Complaint under the Organisation of Working Time Act 1997

I direct the respondent to pay the complainant €204.00, equivalent to  €5.10 per hour for working eight hours a day on five Sundays.

CA-00043472-005:  Complaint under the Organisation of Working Time Act 1997

I direct the respondent to pay the complainant compensation of €255.00, equivalent to 15 hours’ pay.

Pay, working time, Sunday working, breaks