Complainant

Respondent

Parties

Hugo  Ventura

Maine Bistro Limited

Representatives

  Self

 No appearance

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-00039586-001

03/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00039586-002

03/09/2020

The complainant was employed as a kitchen porter by the respondent company.  He commenced employment on 01 June 2019.  He worked at least 39 hours per week and he was paid fortnightly at a rate of €10.10 per hour.  The restaurant closed on 15 March 2020 due to Government health and safety recommendations arising from the Covid-19 pandemic.  On 22 June 2020 the respondent informed all the staff that the restaurant would not re-open before September 2020.  On 24 June 2020 the complainant requested payment for his holidays and for unpaid time in lieu due to him.  He did not receive payment for either.  In August 2020 the complainant resigned and requested the payments due to him.  He did not receive payment for holidays or wages due to him.  He submitted his complainants to the Workplace Relations Commission on 03 September 2020. He claims payment for 79 hours and his outstanding holidays for the year 2019/20.

The complainant commenced employment with the respondent on 01 June 2019.  He worked as a kitchen porter.  He contract of employment provided he would be rostered ‘hours as required’ to meet the business need of the restaurant and this included weekends.  The complainant provided copies of the roster confirming he often worked more than 39 hours per week between June and December 2019.  He also provided copies of his payslips.  The employment contract provided that additional hours worked over 78 hours per payroll period would be accrued as time in lieu.

The complainant had 5 paid days off in the Christmas / New Year period 2019/2020.  He did not receive any other paid annual leave or public holiday leave. 

As he was due to take a trip in 2020 he asked his manager, in February 2020, how much time in lieu was due to him.  His manager confirmed that he was due 79 hours.

The restaurant closed in March 2020 due to Covid-19 health and safety restrictions.  The complainant last worked for the respondent on 13 March 2020.  On 22 June the staff were notified that the restaurant would not be re-opening until at least September 2020.  The complainant e-mailed the manager on 24 June 2020 requesting payment for his 79 hours in lieu and for his outstanding annual leave.  The manager replied on 01 July 2020 stating he was getting the information from head office.  The complainant did not receive payment.

The complainant looked for another job and was successful in obtaining a position in August 2020.  On 05 August 2020 he notified the manager he had obtained a new job and asked again for payment for the 79 hours and his outstanding annual leave.  He did not receive a reply or payment. 

The complainant made at least nine further requests for payment in August 2020.  He e-mailed the manager, the accounts department, and other officials but received no reply or payment.

As he did not receive a reply or payment he submitted his complaints to the Workplace Relations Commission on 09 September 2020. 

There was no appearance by or on behalf of the respondent. 

The matter was first scheduled for hearing on 03 March 2021.  On that date there was no appearance by or on behalf of the respondent company.  I was not satisfied that the respondent had been notified of the date of the hearing at its registered address.  The hearing was rescheduled and took place on 22 October 2021.  

On 22 October 2021 I was satisfied the respondent had been notified, by post to its registered address, of the date and time of the remote hearing.  There was no appearance by or on behalf of the respondent.  Having waited for fifteen minutes after the time the hearing was due to commence I proceeded to hear the complainant’s complaints in the absence of the respondent. 

CA-00039586-001

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

An employee’s entitlement to paid annual leave is provided for in section 19 of the Act, as follows:

19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), 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):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

The uncontested evidence of the complainant was that he worked from 01 June 2019 to 13 March 2020 and that the only paid leave he had was in the Christmas and New Year Period 2019/2020.  He worked a minimum of 39 hours per week.  I find that the complainant was due 16 days annual leave in the leave year 01 April 2019 to 31 March 2020.  His complaint was submitted on 09 September 2020 within cognisable period.  The complainant stated he had five paid days off in the Christmas/New Year Period 2019/2020.  Three of those days were public holidays.  Therefore, I find the complainant received two days paid annual leave in the statutory leave year 01 April 2019 to 31 March 2020.  The complainant was a credible witness and based on his uncontested evidence I find he did not receive fourteen days paid leave that were due to him in the leave year 01 April 2019 to 31 March 2020 in breach of section 19 of the Act.

The complainant did receive compensation payment for the public holidays on 25, 26 December 2019 and 01 January 2020.  Entitlement to public holidays is provided for in section 21 of the Act, as follows:

21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the

employee would, apart from this subsection, be entitled to a paid day off this

subsection shall have effect as if paragraph (a) were omitted therefrom.

Based on the credible uncontested evidence of the complainant I find he did not receive any compensation for the public holiday that occurred on 17 March 2020 in breach of section 21 of the Act.

The complainant sought payment for his annual leave in June 2020 and again in August 2020 when he informed the respondent that he was taking up a new job and would be terminating his employment.  Section 23 of the Act provides the following:

Compensation on cesser of employment.

23.— (1) (a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be

paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

Based on the credible uncontested evidence of the complainant I find he did not receive compensation for the loss of his annual leave when his employment with the respondent ceased in August 2020, in breach of section 23 of the Act.

Redress

Section 27 (3) of the Act provides the following concerning redress:

(3)A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

I find the respondent breached sections 19, 21 and 23 of the Act and the complaint is well founded.  Considering all the circumstances I find it just and equitable to require the respondent to pay compensation to the complainant in the amount of €1,200.00.

CA-00039586-002

Complaint brought under section 6 of the Payment of Wages Act, 1991

The complainant included his claim for 79 hours unpaid wages in the narrative on his complaint form.  I have created complaint, CA-00039586-002, to include the complaint under the Payment of Wages Act, 1991. 

The complainant provided a copy of his contract of employment, rosters and payslips.  His contract provides that hours worked above 78 hours per fortnight would be accrued as time in lieu.  The complainant and his witness, Ms D, confirmed in their evidence that he worked more than 78 hours per fortnight between June and December 2019.  The time in lieu was accrued to be taken in 2020 when he was planning a trip abroad.  In February 2020 the complainant’s manager confirmed to him that he had accrued 79 hours in lieu which could be taken later in the year.  The complainant did not receive paid time in lieu before the restaurant closed in March 2020.  He sought payment for the 79 hours in June 2020 when he was informed the restaurant would not re-open before September 2020.   He again sought payment for the 79 hours in August 2020 when he obtained another job and resigned. 

The Act provides the following at section 5:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing

to it.

(2) …

(3) …

(4) …

(5) …

(6) 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 was a credible witness and his evidence was not contradicted.  I find that as he did not have the benefit of the 79 hours worked as paid time off in lieu during his employment there were unpaid wages for 79 hours properly payable to him at the time of termination of his employment in August 2020.  He submitted his complaint on 03 September 2020.  Based on the uncontested evidence of the complainant I am satisfied the complaint is well founded.  I direct the respondent to pay to the complainant the gross amount of €797.90.

CA-00039586-001

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

I find the respondent breached sections 19, 21 and 23 of the Act and the complaint is well founded.  Considering all the circumstances I find it just and equitable to require the respondent to pay compensation to the complainant in the amount of €1,200.00. 

CA-00039586-002

Complaint brought under section 6 of the Payment of Wages Act, 1991

I find the complaint pursuant to section 6 of the Act is well founded and I direct the respondent to pay to the complainant €797.90 gross. 

Annual Leave

Payment for annual leave

Pay

Organisation of Working Time

No appearance for the respondent