Complainant

Respondent

Parties

Emiljano  Kurtulaj

Picasso Restaurant Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Stewart Reddin Dublin South Citizens Information Service

 N/A

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-00047330-001

24/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047330-002

24/11/2021

The Complainant commenced employment with the Respondent as a Waiter/Runner in the Respondent’s Restaurant on 14 January 2020 and was initially paid the minimum wage, namely €10.10 per hour. He stated that he was not issued with a written statement of his terms and conditions of employment and that he did not receive the holiday pay he was entitled to following the cessation of his employment on 11 September 2021.

The Complainant commenced employment with the Respondent as a Waiter/Runner in the Respondent’s Restaurant on 14 January 2020. He was laid off from his employment from December 2020 to July 2021 as a result of the Covid pandemic. The Complainant stated that he returned to work on 26 July 2021 and around the end of August 2021 gave verbal notification to the Respondent of his intention to terminate his employment on 11 September 2021. The Complainant stated that he worked 260 hours between 26 July 2021 and 11 September 2021, the date on which his employment ended and that he took no annual leave during this period.

The Complainant also stated that no written statement of his terms and conditions of employment was provided to him.

The Respondent stated in evidence that the company was not obliged to pay the Complainant his accrued annual leave because he did not give notice of his intention to terminate his employment despite there being a provision in his contract of employment which stated that he had to give a minimum of one week’s notice.

The Respondent also stated that the Complainant was provided with a written statement of his terms and conditions of employment and produced a copy of this at the hearing.

CA-00047330-001:

The Law:

Section 19 (1) of the Organisation of Working Time Act states that:

“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)

Analysis

It was not in dispute between the parties that the Complainant was not paid his accrued holiday pay of €212. The Respondent however stated in evidence that he was not obliged to pay this because the Complainant did not give notice of his intention to terminate his employment despite a provision in his contract of employment which stated that he had to give a minimum of one week’s notice. While the Complainant asserted that he had in fact given such notification verbally, whether notice was given or not is irrelevant in deciding on this complaint because there was no provision in the purported contract of employment which stated the Respondent could deduct any annual leave entitlement from the Complainant in the event of notice not being furnished.

In the absence of any such provision, I find that this complaint is well founded.

CA-00047330-002:

The Law:

The Terms of Employment (Information) Act 1994, Section 3 sets out the basic terms of employment which the employer must provide to the employee in a written form within two months of starting the employment.

(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say –

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

c)       the place of work or where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee’s contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof of, if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee’s remuneration,

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to –

l)        (i)incapacity for work due to sickness or injury and paid sick leave, and

m)    (ii pensions and pension schemes.,

n)      the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

o)      a reference to any collective agreements which directly affect the terms and conditions of employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Act also requires this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

This Act was amended by virtue of the Employment (Miscellaneous Provisions) Act 2018 and its provisions apply from 04/03/2019 whereby some of the core terms must be given in writing to an employee within 5 days of staring employment.  These are:

a)      the full names of the employer and employee;

b)      the address of the employer in the State, or where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

c)       in the case of a temporary contract of employment, the expected duration thereof, or, if the contract of employment is for a fixed term, the date on which the contract expires;

d)      the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

e)       the number of hours which the employer reasonably expects the employee to work –

(i) per normal working day, and

(ii) per normalworking week.

Analysis:

The Complainant stated in his evidence that he did not receive a written statement of his terms and conditions of employment. The Respondent disputed this and produced a contract of employment at the hearing which was allegedly signed by the Complainant. Having reviewed the contract of employment provided, I prefer the evidence of the Complainant and find that the contract was not signed by him nor was it in fact received by him. In support of my view that the Complainant did not receive the contract of employment, I also noted that the wage rate included in the contract of employment was €10.20, namely the wage the Complainant earned in 2021 following an increase in the minimum wage on 1 January 2021, and not €10.10, the wage he earned in 2020, even though the contract was dated 7 March 2020.

In light of all of the foregoing, I find that this complaint is well founded.

CA-00047330-001:

I find that this complaint is well founded for the reasons set out above and that the Respondent should pay the Complainant €212.

CA-00047330-002:

I find that this complaint is well founded for the reasons set out above and that the Respondent should pay the Complainant €500.