Complainant

Respondent

Parties

Ruby  O'Connor

Yellow River Taverns

Representatives

  Self

 No attendance

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-00046891-001

29/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00046891-002

29/10/2021

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

CA-00046891-003

29/10/2021

This case is concerned with complaints regarding non-payment of wages at any stage during a four-week period of employment and a failure to provide breaks away from work.

The Complainant gave evidence of being interviewed by Caroline and Tom McNulty for the position of waitress/cleaner at Caroline’s Kitchen Eniscrone County Sligo. She was told the rate of pay would be the minimum wage and her hours of work would start at 9.30 or 11 each day continuing until the café closed. Wages would be paid a week in arrears. She commenced employment on 17 September 2021. In that week she worked three days increasing to four-Thursday to Sunday for the next three weeks. Her hours were reduced as the weeks passed as the Respondent decided to close early. She left the employment on 13 October. At no stage then or since did she receive wages for the period of her employment. When she spoke to Caroline McNulty she would say it was matter for Tom McNulty and then she would get some excuses about forgetting or assurances she would be paid. There was a tip box, but she received no advice as to how she would receive a share of the tips. She has estimated what would have been due to her based on the tips paid to her since then in another employment of similar size and business. At the hearing she acknowledged that her main concern is to be paid for the hours she worked plus tips.

The Complainant left the employment when she was not paid as she had been promised she would be more than once, giving her notice on 13 October 2021.

In relation to breaks, the Complainant said the chef would prepare food for the staff but there was no break away from work allowed to eat the food, often having to stay standing to eat the food.

Amounts claimed under the Payment of Wages Act:

Pay €892.40 over four weeks = 87.5 hours plus tips estimated at €107.6

There was no evidence presented to rebut the Complainants evidence.

The Complainant has been consistent in her account of the issues which form the complaint across her complaint form, a written statement provided in advance of the hearing and her account under oath. She was accompanied by her father at the hearing. She provided a Revenue return for Yellow Taverns in her name showing nil payments.  On the basis of her evidence it is reasonable to conclude that she fulfilled her part of the bargain-to work while the Respondent failed in theirs entirely i.e. to pay her for her work. This is tantamount to exploitation of a young person or indeed any person. The Respondent had from October 2021 until the date of the hearing of the complaint to resolve the matter. Indeed, the Complainant was put back on the Respondents revenue record in January 2022 so even then the Complainant thought he would rectify the situation.

Regarding redress, the Complainant calculates the total hours worked as 87.5 whereas based on her own records I calculate the amount as 87 x 10.20 per hour amounting to €887.40 and as this amount was properly payable to the Complainant as wages, she is entitled to receive that amount. As she received no wages at all the nett amount payable is not available, but as she was a part time worker on minimum wage, it is reasonable to conclude that the gross and nett amounts are much the same in her case.

Regarding non-payment of tips, there is no reason to dispute the claim that there was a tips box or that the Complainant received no share of those tips. The sum of €110 over a four-week period seems reasonable.

Regarding breaks, again there is no reason to dispute the claim that break times were not rostered or recorded and that many, if not all, were working breaks. Given the short duration of the employment relationship but allowing that this was part of a pattern of ignoring the Complainants rights generally including a failure to keep records of her hours of work, a sum of €200 for failing to provide breaks away from work (which are not in effect breaks) is considered appropriate. In arriving at this conclusion, it is noted that the Complainant refers only to an entitlement to a fifteen-minute break whereas in accordance with the legislation, there were several days when she was entitled to a thirty-minute break away from her work (Section 12 (1) and 12(2) of the Organisation of Working Time Act 1997 refer). The Respondent should note that had the period of the employment relationship been longer, compensation under this heading would have been considerably more.

The complaint under Regulation 18 of the European Communities (Road Transport) etc is not relevant to the Complainant and in any event offences regarding not keeping statutory employment records may be a consideration in cases where the records or hours of work or breaks are disputed, but those offences are not matters on which the Adjudication Officer decides directly.

CA-00046891-001 Payment of Wages Act,1991

The complaint brought by Ruby O’Connor against the Respondent Yellow Taverns regarding non-payment of wages is well founded. The Respondent is to pay Ruby O’Connor €997.40 nett in respect of unpaid wages and tips.

CA -00046891-002 Regulation of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Transport Activities) Regulations 2012

This Complaint by Ruby O’Connor against Yellow Taverns is not well founded.

CA-00046891-003 Section 27 Organisation of Working Time Act 1997

The Complaint by Ruby O’Connor against the Respondent Yellow Taverns that she was not provided with breaks away from her work is well founded. The Respondent is to pay the Complainant €200 compensation in respect of this complaint.

Unpaid wages/ no breaks.