ADJ-00028559

Complainant

Respondent

Anonymised Parties

A Food and Beverage Manager

A Hotel

Representatives

Danny Downes

Ken Stafford Management Consultancy Services

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-00037007-001

16/06/2020

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

CA-00037007-002

16/06/2020

The Complainant commenced employment with the Respondent, a hotel, on 10 July 2019, in the role of Food and Beverage Manager.

In a letter dated 14 May 2020, the Complainant was informed that, due to the impact of COVID-19 on the Respondent’s business, he was among a number of employees being considered for redundancy. On 25 May 2020, it was confirmed to the Complainant that he was to be made redundant, with his employment ending on one June 2020. 

On 16 June 2020, the Complainant submitted two complaints to the Workplace Relations Commission, under Section 6 of the Payment of Wages Act 1991 (CA-00037007-001) and Section 27 of the Organisation of Working Time Act 1997 (CA-00037007-002) respectively. 

These complaints, having been duly delegated to me by the Director General of the WRC, are the subject matter of this adjudication.

Payment of Wages Claim - CA-00037007-001: 

a)       Overtime claim:

The Complainant submitted that he did not receive any pay for overtime during his employment. According to the Complainant’s submission he was promised pay or time off in lieu in respect of overtime. 

The Complainant further submitted that the Respondent’s General Manager told him that they would not be paying him any overtime as they did not believe he was owed any. In response, the Complainant stated that he had copies of his clock cards showing the hours worked and also had an email from the Operations Manager confirming the agreement to pay him overtime.

b)      Notice Period Claim:

The Complainant also claimed that he did not receive he's notice of one week's pay. 

Organisation of Working Time claim -CA-00037007-002:

The Complainant submitted that he was required to work more than the maximum permitted number of hours, during a reference period between 7 July 2019 and 8 March 2020. 

According to the Complainant's submission, he worked in excess of 50 hours per week, over a 32-week period, which amounted to an average of 53.43 hours per week.

Payment of Wages Claim - CA-00037007-001:

a)       Overtime Claim:

In response to the payment of wages claim, the Respondent submitted that the claim was grounded on the assertion, by the Complainant, that he was entitled to payment of extra hours worked, i.e. overtime. 

The Respondent submitted that the Statement of Terms of Employment, under which he was employed, show that the Complainant was on a salary. It is further submitted that the Terms of Employment do not provide for any payment for extra hours worked. 

In addition, the Respondent submitted that the Terms of Employment state that the hours of work would vary in accordance with the needs of the business. According to the Respondent, the Complainant's claim is grounded on having a working week of 39 hours, but this is nowhere stated on his Terms of Employment. The Respondent also stated that while the pay slips provided to the Complainant show calculations based on a 39 hour working week, this was simply to facilitate the payment of wages, as the payroll system required a figure of her hours worked. 

According to the Respondent's submission, the Complainant was given time off in lieu for certain extra hours, in agreement with the Respondent’s General Manager. It was further stated by the Respondent that, at termination, the Complainant was given 56.5 hours in lieu of time worked, as he was no longer in a position to take time off. 

Finally, with regard to the overtime claim, the Respondent submitted that the period for which the claim is made ended on 10 November 2019 and, as a result, the entire claim is therefore out of time. 

b)      Notice Period Claim

In response to this element of the Complainant claim, the Respondent stated that payment of one-week notice was made on 19 June 2020.

Organisation of Working Time claim -CA-00037007-002: 

The Respondent submitted that the relevant period for consideration under this claim is that commencing on 29 December 2019 and ending on 22 March 2020, as the Respondent’s business did not operate beyond that date. 

With reference to the relevant period, the Respondent submitted that the data shows the time worked (which is paid time less breaks) was marginally below 39 hours per week. Based on this, the Respondent submitted that there is no basis to the Complainant's assertion that he worked “in excess of 50 hours per week.”

With regard to the issues arising in relation to this complaint, the Complainant and the Respondent made written submission and also provided oral evidence at the Hearing. In addition, both parties provided additional submission post hearing. These were exchanged with both sides and each was given opportunity to respond. 

I have carefully considered and evaluated all of the evidence and submissions adduced, in this regard, in reaching my determinations as set out below. 

Payment of Wages Claim - CA-00037007-001:

The Complainant submitted that he did not receive the monies properly payable to him, by way of overtime, between 8 July 2019 - 8 March 2020. On that basis, he submitted his complaints, in this regard, to the WRC on 16 June 2020.

For a breach of the Payment of Wages Act to occur, the wages must be properly payable within the cognisable period.  The Respondent submitted that much of the complaint is out of time and identified the cognisable period as that commencing on 25 December 2019 and ending, six months later, on 16 June 2020, the date of the submission of the complaint to the WRC. 

The Complainant submitted that he was unaware the Respondent did not intend to pay the overtime until he sought payment of same when he was made redundant, on 8 June 2020. 

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015, provides as follows: 

(6) “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. 

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” 

Having carefully reviewed the submission of both parties, in this regard, I am satisfied that the Complainant had an understanding that he would be compensated for additional time worked, by way of salary payment or time-off in lieu. [This basis of this understanding will be dealt with in detail below] 

Clearly, while the Complainant remained in employment, the matter of payment did not arise as an issue, as the option to take the extra hours as time in lieu was still available. Consequently, I am satisfied that, prior to discussions in relation to his redundancy in May/June 2020, the Complainant had no reason to suspect that he would not receive payment or that the Respondent would contest the basis of his understanding with regard to extra hours worked. It was only at a point, when time in lieu was no longer an option, that the Complainant sought payment from the Respondent and realised that same might not be forthcoming. 

Consequently, taking all of the above into consideration, I find that the Complainant had reasonable cause for not submitting his claim until June 2020 and, on that basis, I exercise my discretion, as set out in Section 41 (8) of the 2015 Act, to extend the time period by an additional six months. Therefore, I find that the cognisable relevant period for this complaint is from 8 July 2019 and 8 March 2020, as claimed by the Complainant. 

Section 5 (6) of the Payment of Wage Act 1991 states that: 

 “Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or 

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”. 

The Complainant’s claim under the 1991 Act, is based on his understanding that he would be compensated for extra hours worked by means of overtime which would be paid either directly as salary or as time off in lieu. The Complainant submitted that this commitment was given to him at the commencement of his employment with the Respondent. 

In support of his submission in this regard, the Complainant provided evidence from two witnesses: (1) the former Assistant Operations Manager (Mr A) for the Respondent’s business and (2) a former Senior Duty Manager (Mr B) for the Respondent’s business. Mr A and Mr B provided their evidence by way of Statutory Declarations, signed before a Commissioner of Oaths. This was further attested at the oral hearing on 23 February 2021, which was attended by both witnesses. 

The evidence provided by both Mr. A and Mr B fully corroborates the Complainant’s contention that he was informed by the Respondent that he would be paid for any time owed or be given time off in lieu during quiet periods. Mr A also confirmed to the Hearing that the arrangement for payment of extra hours was made with the full knowledge and approval of the Respondent’s General Manager. 

In responding to the Complainant's claim in this regard, the Respondent relied, for their defense, on the Statement of Terms of Employment, which the Complainant signed at the commencement of his employment, on 15 July 2019. The Respondent submitted that the terms in question stated that the Complainant’s hours of work would “very in accordance with the needs of the business”. The Respondent further stated that, while the Complainant’s claim is grounded on having a working week of 39 hours, there is no reference in his Terms of Employment to that being his standard working week. 

With regard to the fact that the pay slips, provided to the Complainant, refer to 39 hours per week, the Respondent stated in evidence that the use of the figure of 39 hours was simply to facilitate payment of employees, as the payroll system required a figure of hours worked in order to issue pay slips. 

Section 3 of the Terms of Employment (Information) Acts (1994 – 2015) states that:

“(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— 

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

In the absence of the above information from the Complainant’s Statement of Terms of Employment, as submitted in evidence, I find it unreasonable and unacceptable that the Respondent should seek to rely on such an absence as a legitimate defense against the Complainant’s contention, which is clearly corroborated by witness evidence, that he was given a commitment that additional hours worked would be considered as overtime and would be paid either as a direct salary payment or as time off in lieu. 

Based on the above and having carefully considered all of the evidence adduced, I find that the monies which the Complainant claims are due to him are properly payable and that the Respondent’s failure to pay these monies represents a deduction, in line with Section 5 (6) (a) of the 1991 Act. 

Consequently, I find that the Complainant’s complaint in this regard is well founded. On that basis, I find in the Complainant’s favor in the amount of €4,879.66. This figure is based on the Complainant’s claimed figure of 386.43 hours reduced by the 56.50 hours paid to him in the pay slip dated 12 June 2020. As this amount represents unpaid wages, is it subject to the normal statutory deductions in this regard. 

With regard to the Complainant’s claim for Notice Pay, I am satisfied, from the evidence submitted, that this was subsequently paid by the Respondent and, on that basis, no adjudication was required in this regard. 

Organisation of Working Time claim -CA-00037007-002:

The Complainant submitted that he worked in excess of 50 hours per week while in the employment of the Respondent. He further claimed that in a 32-week period, he worked an average of 53.43 hours per week. 

In response to the Complainant's claim in this regard, the Respondent submitted, as evidence, calculations, over three reference periods (14 July to 22 September 2019, 29 September to 22 December 2091 and 29 December 2019 to 22 March 2020) which showed weekly average hours worked as 43.44, 46.92 and 41.65, respectively and an overall average, over the entire 37-week period, of 44.03. 

Section 15 (1) of the Organisation of Working Time Act, 1997, states as follows: 

(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed— 

(a) 4 months, or 

(b) 6 months— 

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or 

(ii) where due to any matter referred to in section 5 , it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, 

or 

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.” 

The parties provided detailed calculations in support of their respective positions. Having carefully considered all of this evidence, I find nothing therein which would reasonably support the Complainant’s claim that the Respondent was in breach of Section 15 (1) of the 1997 Act and must, therefore, conclude that his complaint in this regard is not well founded.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find as follows in relation to the Complainant’s complaints

Payment of Wages Claim - CA-00037007-001:

I find that the Complainant’s complaint under the Payment of Wages Act, 1991, is well founded. Consequently, I find in his favor in the amount of €4,879.66. As this amount represents unpaid wages, is it subject to the normal statutory deductions in this regard.

Organisation of Working Time claim -CA-00037007-002:

I find that the Complainant’s complaint under the Organisation of Working Time Act, 1997, is not well founded and is, therefore, rejected.

Payment of Wages Act

Organisation of Working Time Act