Complainant

Respondent

Parties

Nicole Deeley

Dcd Pubs Ltd

Representatives

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-00049872-002

25/04/2022

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

CA-00049872-003

25/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00049872-004

25/04/2022

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

CA-00049872-005

25/04/2022

The Complainant worked in the kitchen of the Respondent pub from 12th of August 2021 to 20th of March 2022.

The Complainant alleges that she worked on her own in the Respondent’s kitchen and wasn’t able to take any breaks. That she never received her contract and terms of employment. That she was paid no holidays. That when she resigned from the Respondent she tried to work out her notice but was let go sooner.

The Complainant attended the hearing assisted by her mother Ms Lorraine Deeley. She made written submissions ahead of the hearing and gave oral evidence at the hearing.

She was asked to take up the head chef role in December 2021. She was given a raise for this however she was never given an updated contract.  She was frequently rostered by herself in the kitchen and as such couldn’t take breaks. She has provided copies of her rosters to demonstrate this.

She handed in her notice on the 18th of March and gave a week’s notice. Two days later on the Sunday 20th March she was told that it would be her last shift.

Her payslip for that week showed that she was only paid for the house she worked.

In May and then September the Complainant received two further payments from the Respondent. She is not sure what they are for.

She never received a contract of employment from the Respondent.

The Respondent submitted extensive written documentation and a number of staff gave evidence.

This included Mr Derek Fowler who gave an overview of their defence as well as how the business worked and particularly their break system. Ms Connie Fowler who worked in the kitchen alongside  the Complainant. Mr Derek Fowler Junior who gave evidence as to the issuing of the Complainant with her contract and of the payment of her annual leave.

It is disputed that the Complainant had been appointed head chef and that she was alone in the kitchen.

CA-00049872-002 – Organisation of Working Time Act

The issue of the Complainant’s breaks was perhaps the major focus of the hearing.

Evidence was presented by both sides as to the working patterns and the pressures faced by all staff. The Respondent argued that the Complainant would usually receive an hour-long break. The Complainant rejected this but did accept that she got some breaks but not be able to take all her full break, particularly later in the day.  

There appears to have been some confusion as to the daily minimal breaks actually required by law.

Section 12 of the Organisation of working time act states that   An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. And that An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

On review of the evidence presented by both parties I am satisfied that the Complainant did get the minimum level of breaks mandated. That is 30 minutes.

CA-00049872-003 – Terms of Employment (Information) Act

Mr Derek Fowler Junior provided evidence that he furnished the Complainant with a contract of employment and provided a screenshot of the creation date of that contract which coincides with the Complainant taking up her role. I am satisfied that on the balance of probabilities that the Complainant received the terms. She did not sign and return the contract but she was still furnished with a statement of particulars in the form of that contract.

CA-00049872-004 – Minimum Notice and Terms of Employment Act

The Respondent has provided a payslip from May 2021 in which they paid the Complainant’s notice payment. The Complainant accepts she received the payment but was not sure what it was for and whether it dealt with the notice owing to her.  On review of the Complainant’s other payslips this would appear to come to a week’s pay which is what she was owed. The Respondent separately paid her again in September for miscalculated public holidays.

I am satisfied that the Complainant received her notice pay.

CA-00049872-005 -Organisation of Working Time Act

The Respondent has indicated that they paid the Complainant her annual leave in advance over Christmas 2021 by cash in hand. The Complainant denied this and there was some dispute as to whether there was a bonus payment at that time.

The Respondent is at best unclear as to why they paid leave out in December and why this was done in cash.

On the balance of probabilities, and particularly noting the Respondent’s obligation under this act to maintain proper working time records, I find that the Complainant did not receive an annual leave payment from the Respondent and that this was owing to her upon cessation of her employment.

In the circumstances I believe a payment of €2000 is warranted as compensation for the breach of the Complainant’s rights under this act.

CA-00049872-002

I find that the above complaint is not well founded.

CA-00049872-003

I find that the above complaint is not well founded.

CA-00049872-004

I find that the above complaint is not well founded.

CA-00049872-005

I find that the above complaint is well founded and direct the Respondent to pay the Complainant €2000 in compensation.