Complainant

Respondent

Parties

Thomas  Nikter

Padraig Mahon & Garry Mahon & Marta Dzianach Giz – T/A - Tiempo Tapas & Wine

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-00033519-001

07/01/2020

The adjudication hearing was first scheduled for 15/2/21 but I adjourned on that date in order to enable contact to be made with the Respondent. The second hearing date of 12/4/21 was adjourned due to the implications of the Supreme Court decision in Zalewski V Adjudication Officer and WRC [2021] IESC 24. The adjudication hearing was resumed on 8/11/21 and all evidence was taken under oath/affirmation. Although I waited approximately ten minutes after the due start time on 8/11/21 to commence the hearing, the Respondent did not attend.  From my examination of the file I am satisfied the Respondent was properly notified by letter of 27/9/21 of the 8/11/21 adjudication hearing and accordingly I proceeded and concluded the hearing on that date.

The Complainant outlined his work as a chef with the Respondent. He stated he commenced in the Respondent’s employment on the 1st August 2019 and that his employment ended on the 15th December 2019. The Complainant stated at the hearing that his gross weekly pay was €538.46 and provided documentary evidence to show this - although stated as €540.00 on the Complaint Form. The Complainant also stated that he was paid in arrears. On his Complaint Form the Complainant stated that he worked forty five hours/week although in evidence it was stated he worked forty hours/week. On the 9th December 2019 the Complainant furnished the Respondent – comprising three individual owners - with his letter of resignation which was to be effective from the 16th December 2019. In his resignation letter the Complainant requested that he be paid “all holiday pay and wages owed…” to him.

The Complainant outlined an exchange with the Respondent which occurred on the 15th December 2019 wherein an issue arose as to whether he had turned off a walk in refrigerator. As a consequence the Complainant stated that he was sent home on that day. The Complainant contended that his sending home was unfair, unwarranted and that he was denied his notice period or payment in lieu.

It is the Complainant’s position that his last pay date was the 8th December 2019 and that he is due his wages in respect of the week the 9th – 16th December 2019 and pay in lieu of notice.

The Complainant stated that he was also seeking one weeks outstanding holiday pay – ie 7 days. In that regard the Complainant introduced his witness Mr Delahunty also a former employee of the Respondent. Mr Delahunty stated that the Complainant’s last pay date was on the 8th December 2019. In respect of annual leave, the witness stated that the entitlement was twenty days or the equivalent of 1.75 days/month. Taking account of the length of the Complainant’s employment from 1/8/2019 to 15/12/2019, Mr Delahunty estimated that the Complainant was due €861.54 based on 8% of 20 weeks employment @forty hours/week and an hourly rate of €13.46.

The Complainant stated that he did not receive any contract of employment. However, he clarified at the last hearing date on the 8th November 2021 that he did not wish to pursue this matter.

The Respondent did not attend or provide any written submissions.

The Payment of Wages Act [1991-2017] defines wages as follows:

““wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including –

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice…..”

The Organisation of Working Time Act [1997-2020] provides as follows at paragraph 19:

“(1) …… an employee shall be entitled to paid annual leave……. equal to –

(a) 4 working weeks in the leave year in which he or she works at least 1,365 hours……,

(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 four working weeks) …….”

The Minimum Notice and Terms of Employment Act [1973-2017] provides as follows at paragraph 4:

(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 …..

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

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

Having considered the uncontested sworn evidence of the Complainant and the witness I find as follows:

·       That the Complainant’s last pay date was the 8th December 2019 and that he is entitled to a weeks wages in respect of the week the 9th December to the 16th December 2019. In that regard, I accept the Complainant’s evidence in relation to his being sent home on the 15th December 2019 without any notice or pay in lieu of notice. However, given that the Complainant had already notified the Respondent on the 9th December 2019 of his decision to resign effective from the 16th December 2019, I am satisfied that any such notice would have expired on that date;

·       That the Complainant is entitled to be paid such outstanding statutory annual leave as he had accrued whilst in employment. In this regard and based on the uncontested evidence of the Complainant and the witness, I find that the Complainant is entitled to annual leave based on the following:

- 19 weeks and four days total employment – ie from 1/8/2019 to 16/12/2019 inclusive;

- 40 hours/week @an hourly rate of €13.46

For completeness, I wish to record that in response to the Complainant first raising the issue of the non-receipt by him of a contract of employment, I advised the Complainant and the Respondent by letter of the 5th May 2021, that I could not deal with this matter in the context of complaint CA-00033519-001 which related to the payment of wages complaints, as the Respondent had not been notified. The matter was further discussed at the hearing on the 8th November 2021 and I clarified that it was open to the Complainant to bring a separate complaint in relation to this matter. The Complainant confirmed that he did not wish to do so or pursue the matter any further.

I have carefully considered all the information and evidence presented to me and I am satisfied for the reasons outlined that the Complainant’s complaints are well founded. Accordingly, I decide that the Respondent should pay the Complainant the following:

1. A weeks wages amounting to €538.46 gross pay in respect of the week 9th – 16th December 2019.

2. Annual leave due to him which I calculate amounts to €852.82 gross based on 8% of the total hours worked.

These awards are subject to such necessary statutory deductions as may apply.

Wages due; Annual Leave