ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00026692
Parties:
| Complainant | Respondent |
Parties | Stephen Ng | MCF Catering Limited Orchard Restaurant |
Representatives | Gerard I. Lambe Gerard I. Lambe Solicitor | Irene Fisher, BL Bruce Lee (for employer) – Company Secretary |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032600-001 | 26/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032600-002 | 26/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00032600-004 | 26/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032600-005 | 26/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032600-006 | 26/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00032600-007 | 26/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00032600-008 | 26/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00032600-009 | 26/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00032600-010 | 26/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032601-001 | 28/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032601-002 | 28/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00032601-004 | 28/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032601-005 | 28/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032601-006 | 28/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00032601-007 | 28/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00032601-008 | 28/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00032601-009 | 28/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00032601-010 | 28/11/2019 |
Date of Adjudication Hearing: 01/02/2022
Workplace Relations Commission Adjudication Officer: Caroline Reidy
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015, Section 7 of the Terms of Employment (Information) Act, 1994, Section 4(2) or 5 of the Minimum Notice and Terms of Employment Act 1973 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints
The claim herein was heard remotely in circumstances where a general restriction, on face-to-face hearings arising out of the Covid pandemic, was in place therefore I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I indicated that hearings must now (and in the interests of transparency and in the administration of Justice) be open to the public. I have additionally informed the parties that in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered in line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came in to effect on the 29th of July 2021 and which allowed me, as Adjudicator to administer the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.
The parties agreed to proceed in the knowledge that decisions issuing from the WRC would disclose their identities as the parties would be named in my decision.
Oral evidence was presented by both the complainant and the respondent. The parties were offered the opportunity to cross examine on the evidence submitted.
Mr Ng, the Complainant took the oath to give oral evidence in this case.
There were six claims relevant to this case namely:
CA-00032600-001: Complaint for adjudication pursuant to section 24 of the Minimum Wage Act 2000
CA-00032600-005 & 006: Complaint for adjudication pursuant to section 27 of the Organisation of Working Time Act, 1997
CA-00032600-007: Complaint for adjudication pursuant to section 7 of the Terms of Employment (Information) Act, 1994
CA-00032600-008: Complaint for adjudication pursuant to section 8 of the Unfair Dismissals Acts, 1977 – 2015
CA-00032600-009: Complaint for adjudication pursuant to Section 4(2) or 5 of the Minimum Notice and Terms of Employment Act 1973
The following three claims were withdrawn by the Complainants representative on the day of the hearing:
CA-00032600-001: Complaint for adjudication pursuant to section 24 of the Minimum Wage Act 2000
CA-00032600-005 + CA-00032600-006: Complaint for adjudication pursuant to section 27 of the Organisation of Working Time Act, 1997
TIME LIMIT
The Workplace Relations Act 2015 provides that a complaint or dispute must be referred within six months of the alleged contravention of the legislation (different time limits apply for complaints under the Redundancy Payments Acts and the Equal Status Acts). The date on which a complaint or dispute is referred is the date it is received by the WRC. If a complaint is not within the time limit on extension may be granted by an adjudication officer up to a maximum time limit of 12 months where, in the opinion of the adjudication office, the complainant has demonstrated reasonable cause for the delay (different time limits apply for extensions under the Redundancy Payments Acts and the Equal Status Acts). Complainants should make this extension application when submitting the complaint form as quickly as possible afterwards giving detailed reasons and including any supporting documents. An adjudication officer has no power to extend the time limit beyond 12 months after the last alleged contravention (other than under the Redundancy Payments Act).
Having considered the reason for delay being he understood his employer to be someone else and another employer and proceeded on that basis to take a claim via WRC against them and only at the hearing did he realise that the Respondent in this case declared themselves to be his current employer therefore I find to be a reasonable reason for the delay and therefore will hear the claims which are within 12 months of the date of contravention.
Background:
Ms Fisher BL, the representative for the Respondent confirmed MCF Catering Ltd is the employer of the Complainant but confirmed they are only the employer since 2018. However, this was disputed by Mr Lambe the Complainants Solicitor and the Complainant in oral evidence to be January 2016. The incident in question that was the catalyst for this claim is dated 8 February 2019. The Complainant’s salary is also in dispute in relation the number of hours he worked for €10 per hour as 20 hours by the Respondent and 48 hours by the Complainant. CA-00032600-007: Complaint for adjudication pursuant to section 7 of the Terms of Employment (Information) Act, 1994 The Complainant, Mr Ng stated MCF Catering Ltd did not give him his contract of employment with relevant information required per the legislation. Under oath the Complainant said in evidence that he never received it and he never saw the terms and conditions document dated 2018 during his employment and it is incorrect factually with reference to his wages and it is not signed either. Mr Ng said he never understood MCF Catering was his employer. He only heard of them in Court. The Complainant stated he also received no P60’s. He said he never saw payslips and the ones produced at hearing are incorrect. The Respondent stated he was presented with this contact at that place of work. There was no oral evidence to support this. Mr Ng stated he needed to be registered for tax ref PPS No. He stated that there was a PPS number he used, and they lodged money into his account. The Respondent representative said it wasn’t his PPS number and this was the number on his payslips. The Complainant said this is a mistake and no fault of anyone, but the Respondent was given the wrong number. The Complainant said they should have tried to get it from Revenue if they thought it was wrong. The Respondent, MCF Catering limited presented payslips. The hourly rate of the employee at €10 an hour is not in dispute. The Respondent stated he was working on average 20 hours at €200 per week but the Complainant says he was working much longer hours up to 48 hours x 6 days. The Complainant stated he never got a payslip. The Complainant confirmed he started at 11.30am to 2.30pm and came back at 5pm and finished at 11pm x6 days per week. He wasn’t working in the middle of the day as the restaurant was closed. The was not part of his working hours as a result. CA-00032600-008: Complaint for adjudication pursuant to section 8 of the Unfair Dismissals Acts, 1977 – 2015
Mr Ng, the Complainant gave evidence as follows in relation to the interactions that occurred during his last day of employment on 8 February 2019 which was a Friday. The Complainant understood Moanne Chow t/a Orchard Restaurant to be his employer. He was notified since the actual employer is MCF Catering Limited who are the Respondent in this case. The Complainant’s boss Moanne Chow was asking him to set the table and she said he must say hello to them and he said they were her relations, but he always said hello to everyone. The Complainant worked for her for 3 years at that stage. They then had an interaction and a disagreement reference saying hello to a specific group who were due in the restaurant that day. Mr Ng said that during this interaction she was unreasonable. Ms Chow said that wasn’t acceptable; he said he’d serve them and did say hello. Ms Chow said, “get out and don’t come back”. The Complainant knew her to be his boss who hired him. She said, “the door is there, get out”. The Complainant asked for his wages and she said come back another day and I will give you those. He understood that he was not to return as a result. He understood that he was dismissed at this time and had no option to return. The complainant lodged a claim against her as a result for Unfair Dismissal. Under cross examination the Complainant confirmed he did his best for his employer and did what he was asked and serves everyone. The Respondent said these instructions were normal parts of his job. Mr Ng said he respected his job and boss and didn’t’ leave of his own accord. The Complainant stated he commenced work in 2016 but the Respondent stated it was 2018. He said he has no documents from his employment. They asked when he left to go home to visit his family in August 2018. The Complainant cannot remember for how long, but it was a few weeks; he thinks 4-5 weeks. He said he hadn’t taken holidays before that so that is why he got that period. He said that was just a holiday break, however, MCF Catering Ltd stated it broke his employment as he took extended period. CA-00032600-009: Complaint for adjudication pursuant to Section 4(2) or 5 of the Minimum Notice and Terms of Employment Act 1973 The Complainant stated he wasn’t given any notice when told to leave when Ms Chow said, “go there is the door”. He left his employment that day as he understood he was dismissed and didn’t get paid for same. The Respondent stated that he resigned and didn’t give any notice and voluntarily left. |
Summary of Complainant’s Case:
The Complainants Solicitor Mr Lambe outlined their case was as follows: -
The Terms of Employment (Information) Act requires inter alia that any employee to be furnished with: (i) The full name and address or where appropriate the registered office of the employer; (ii) The title of the job or nature of the work for which he is employed; (iii) The date of commencement of the employee's contract; (iv) The rate or method of calculation of the employee's remuneration. It is submitted the complainant never received such. This case is a demonstrable example of the seriousness of that breach. The complainant has repeatedly stated, and such prevails, that he was never furnished with such. At the eleventh hour, it is noted a copy of an unsigned "Written Statement of Terms of Employment" has been produced. As stated, it is unsigned by the complainant. While it is accepted it is not strictly necessary that such be signed, it is indeed difficult to reconcile the provision for signature with the absence thereof. Such is all the more important when the complainant, as in the instant case denies ever being furnished with any such document. Secondly, the identity of the employer is, at best, misleading in reference to Employer Name: "Manager: Moanne Chow". One can but wonder, having regard to the extensive litigation already in this case, how would the original Adjudicator and/or the Labour Court have viewed such document, produced now for the first time. Indeed, a serious omission, it is respectfully submitted. Thirdly it is dated 9 July 2018. Fourthly, it is clear, if the complainant's evidence is accepted, that the Dismissal procedures outlined therein were not in any way followed in the instant case. 2. The aforementioned legislation additionally requires an employee to be notified in the event of any changes. 3. In addition, the Employee is entitled to be consulted concerning material changes in his employment. The employee, it appears undisputed, was working in the Orchid Restaurant from January 2016 to February 2019 and there is no evidence available of any or any appropriate consultation process concerning suggested change of employer. In the instant case, it is understood to be contended by the Respondent that the complainant was initially employed by "The Chows Orchid Limited"-Company Registration No. 590841. That Company from C.R.O, searches were only incorporated on the 7 October 2016, some 9 months after the Complainant commenced work in the Orchid restaurant and was struck off on the 13 September 2019. MCF Catering Limited was only incorporated on the 10 May 2018, some 2 years and almost 4 months after the complainant commenced in his employment. No evidence of "connection" in the Plaintiff's employment between the two companies has been furnished at any time to the complainant much less any evidence of any consultative process with the complainant. In fact, all that has been produced is a document purporting to demonstrate commencement of employment on "Start Date: June 2018" inserted thereon, unsigned and first seen by the complainant in May 2021, reciting Date of Commencement of Employment: 24 June 2018 4. The complainant at all times understood his employer to be Moanne Chow. He did not and could not with reasonable diligence have had any knowledge of the contention first advanced on the 2 September 2019, that the current respondent was his employer. Indeed, reference is made to the comment by the Labour Court in its decisions, as opened by the respondent in its submission: "The Court is most disturbed to find itself in the very unsatisfactory position that the complainant is left in something of a limbo, allegedly by virtue of the failure of his former employer to meet the most basic of information requirements of employment law with respect to his employment and that this alleged very failure, itself requires the Court to have to engage in what the complainant's representative described with some accuracy as "private detective" work to ascertain who exactly was the employer. The very absence of written confirmation of an employment relationship being produced to the Court is a problem in getting to the heart of determining who the employer might be. The Court notes the irony that the absence of documentation required by law creates a difficulty for the Court in examining complaints regarding alleged breaches of employment law." 5. It is respectfully submitted that the Complainant moved with due alacrity in all the circumstances and the delay complained of by the Respondent is indeed well explained, is reasonable and affords a very real excuse for the delay in failing to issue within the 6-month time limit provided for in Section 41 (6) of the Workplace Relations Act 2015 (the 2015 Act). Indeed, the background circumstances demonstrate that had the respondent complied with the most basic statutory requirements no such delay need ever have arisen. It is submitted it would be unconscionable to penalise the complainant in such circumstances, where the respondent's statutory breach would deprive the complainant of potential remedy and correspondingly benefit the respondent. In all the circumstances it is respectfully submitted this is an entirely appropriate case in which to exercise the discretion provided for in Section 41(8) of the 2015 Act.
Unfair Dismissal Act:
The complainant required time off due to illness and did take time to travel to Hong Kong, all as agreed with the respondent. The complainant had not taken time off since commencement in January 2016. The contention that the complainant lacked continuity of service is entirely denied. Further the complainant is a complete stranger to the pay slips as advanced which are post dismissal productions and fundamentally inaccurate, evasive and materially misleading. The Complainant state that Mr Ng was interviewed by Moanne Chow for the position of senior waiter in the Orchid Restaurant, Pembroke Road, Dublin, 4 and following same was duly employed. Mr Ng, at all times, understood his employer to be Moanne Chow. Mr Ng never received a contract of employment or terms and conditions of employment. Mr Ng worked on average a 48 hour plus week, with no distinction between public holidays and normal work days. He was rostered to work each Sunday, Tuesday, Wednesday and Friday morning. He was paid weekly €360.00 plus tips. During his employment, he was never furnished with any pay advice slips. On the 8 February 2019 at approximately 12.15 p.m., he was asked to set a table for seven people which he did. The seven were members of Moanne Chow's family who duly arrived. Mr Ng was subsequently accosted by Moanne Chow, who, not unusually, shouted at him accusing him of not saying hello to her family. He objected, pointing out he had indeed said hello to them and enquired what more was expected of him, to bow? He pointed out that he was not a slave, had done nothing wrong. He additionally pointed out that he had previously been admonished for serving Moanne Chow's family at the table. Moanne Chow banged the table and told him: "The door is there, out." Mr Ng asked for his wages for days worked and she refused and insisted he leave, which he did. He left in the keys the following Tuesday morning (12 February 2019). He asked for payment and was told he would receive it the next day. He collected same on 14 February 2019 at 10.15 p.m. Mr Ng was not furnished with a P60 during his time working in the Orchid Restaurant or, as stated any pay advice slips. Mr Ng instigated a claim with the WRC. He recited Moanne Chow as his employer, which he always understood to be the position however Mr Ng stated in the meantime, having regard to the confusion regarding the correct employer, his solicitor lodged the current application naming MCF Catering Limited as Respondent. This is the case currently being considered. Mr Ng confirmed numerous payslips had been produced to him demonstrating payments made by MCF Catering Limited. Firstly, he never received such at any time during his employment. Secondly, such did not show up on his inspection of his Revenue account at any time during his employment. Thirdly, they are, simply, incorrect. Mr Ng stated further, he had reviewed the copy document entitled "Employee Application" delivered by the Respondent. He confirmed the handwriting thereon to be his, save, "Start Date" stated to be "June 2018" was not his handwriting and was not input by him. Mr Ng confirmed he considered himself to have been an experienced, competent, reliable and trusting employee during his time in the Orchid Restaurant. He was very upset at not only his dismissal but by what he can only describe as the "run around" to which he has been subjected by his employer over the last two and a half years plus. |
Summary of Respondent’s Case:
The Respondent stated the following in relation to the case. They presented their evidence by way of a submission and cross examined the Complainant and the company representative put forward their case. There was no oral evidence presented. CA-00032600-007 The Respondent confirmed that the Contract of Employment was provided to the Complainant which clearly showed all the terms and conditions of work. They produced a copy of this contract however; the Complainant never signed the contract but still showed up to work they say, and they also said he did get a copy of it. CA-00032600-008 The Respondent confirmed they had never dismissed the Complainant formally or verbally, However, it was not the first time the Complainant left the job without notice and they said he quit his job. They said that the Complainant also left previously on extended holidays. CA-00032600-009 The Respondent confirmed that the Complainant was never dismissed formally or verbally. Respondent stated the claim for minimum notice period should be voided. In addition, the Complainant left the work without minimum period of notice was unfair to the company. In addition, the Complainant should have given the company minimum period of notice before he decided to quit. |
Findings and Conclusions:
The other claims were withdrawn at the outset of the hearing by the Complainants Representative, so I make the following findings and conclusions regarding the outstanding claims. CA-00032600-007: Complaint for adjudication pursuant to section 7 of the Terms of Employment (Information) Act, 1994 The evidence is contested in relation to the Respondent’s Terms & Conditions as to whether they were issued or not and this is at the root of this case and this demonstrates clearly why this legislation is so important for all employees to receive their contract of employment. I found the evidence presented orally by the Complainant to be very credible and as a result find that he did not receive his contract of employment in line with the legislation and as a result had difficulty establishing his correct employer. CA-00032600-008: Complaint for adjudication pursuant to section 8 of the Unfair Dismissals Acts, 1977 – 2015 This dismissal is in dispute and the employer state that no dismissal occurred however, presented no oral evidence to back this up and accept that an incident occurred between the Complainant and his employer, the respondent on the day in question. The Complainant however gave very specific and credible oral evidence therefore I find his evidence that he was summarily dismissed on that day to be an accurate account of what actually happened. I note however that no procedural or fair process or the rules of natural justice was afforded to this employee and in the absence of a contact of employment was unaware of same. I therefore find this dismissal to be unfair. CA-00032600-009: Complaint for adjudication pursuant to Section 4(2) or 5 of the Minimum Notice and Terms of Employment Act 1973 Based on the evidence presented by the Complainant which was given under oath I find his start date to be January 2016 as there was no oral evidence or convincing evidence from the Respondent to dispute this nor is there a valid contract of employment in place to confirm this also. Therefore, in line with the legislation if the employee was dismissed which I find to be the case on the 8 February 2019, he would be entitled to 2 weeks notice under the legislation. Mitigation of Loss I have also considered the Complainant’s mitigation of loss and he gave evidence to confirm that from the date of dismissal, the Complainant was out of work for 4 months i.e., July 2019 and then worked in another restaurant until Covid came along. |
Decision:
Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The Complainant gave very credible oral evidence under oath and confirmed that he did not receive a contract of employment and was summarily dismissed by his employer and received no notice payment. No oral evidence was presented by the Respondent to dispute the specific facts of his case. I find that Mr Ng weekly wage was €10 per hour and that he worked on average 48 hours per week based on his oral evidence totalling €480 per week which is the award amount I am using to calculate the compensation as the employee did not receive payslips nor was there a roster of hours in place according to the Complainant to accurately confirm his pay per week or hours worked. CA-00032600-007: Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision. I find Mr Ng’s evidence that he never saw or received his Terms & Conditions to be most credible. I therefore confirm this case succeeds as the Respondent has not met their legal obligations in relation to this legislation. I award Mr Ng 4 weeks renumeration for breach of the legislation in relation to the Terms & Conditions of employment. CA-00032600-008: Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I find the Complainant’s evidence to be credible that he was summarily dismissed by being told “go there is the door”, therefore he was summarily dismissed by the person most senior to him who he understood to be his boss. No process, natural justice or procedural fairness or paperwork is in place regarding this dismissal. Therefore, I find the Complainant was unfairly dismissed and his case succeeds.
I award Mr Ng compensation of 18 months’ salary for his unfair dismissal totalling €34,560. CA-00032600-009: Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint concerning Minimum Notice in accordance with the relevant redress provisions of that Act. I find that no evidence showed the Complainant got notice, was presented and that he is entitled to same under the legislation and therefore his case succeeds.
I award Mr Ng his full notice based on his employment term 2016-2019 which means his notice is 2 weeks totalling €960. |
Dated: 5th July, 2022
Workplace Relations Commission Adjudication Officer: Caroline Reidy
Key Words:
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