ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044198
Parties:
| Complainant | Respondent |
Parties | Freddy Marinov | Amk Hospitality Limited |
Representatives | Self-Represented | Did not appear. |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00054770-001 | 30/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00054770-002 | 30/01/2023 |
Date of Adjudication Hearing: 31/07/2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 ; Section 7 of the Terms of Employment (Information) Act, 1994 and Section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury were explained to all parties.
There were no issues raised regarding confidentiality in the publication of the decision
Additional complaint.
At the Hearing the Complainant added an additional complaint under Section 6 of the Payment of Wages Act, 1991.
The Adjudication officer, after consideration, allowed this additional complaint to be put forward for Adjudication.
Background:
The issues in contention concerned the alleged non-payment of Wages for the 22nd of November 2022 – 6 hours, the non-payment of a Sunday premium for one Sunday - the 16th October 2022 and the non-receipt of a Statement of his Terms and Conditions of employment.
The employment began on the 23rd September 2022 and ended on the 26th October 2022. The rate of pay was stated to have been €12:00 per hour.
The Complainant was employed as a Commis Chef. |
1: Summary of Complainant’s Case:
The Complainant gave an oral testimony under Sworn Oath supported by a variety of supporting documents. The Adjudication Officer reminded the Complainant of the Prevention of Perjury Legislation. 1:1 Terms and Conditions of Employment - CA-00054770-001 The employer did not provide a Statement of Terms and Conditions of Employment to the Complainant 1:2 Organisation of Working Time Act,1998 CA-00054770-002 The Complainant worked Sunday the 16th October 2022 but did not receive any Sunday premium. He estimated that he was due approximately €25:00 Sunday premium. 1:3 Additional Payment of Wages Complaint. The Complainant worked Saturday the 22nd October 2022 and was never paid. He estimated his loss as being approximately €72:00.
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2: Summary of Respondent’s Case:
The Respondent did not attend the hearing. The Complainant believed the Respondent had ceased to trade and was now, possibly in Liquidation. The Adjudicator was satisfied that proper notice of the time, place and date of the Oral hearing had been properly served on the Respondent. No Post hearing bona fide explanation was ever received at the WRC. |
3: Findings and Conclusions:
The Complainant gave Sworn evidence as to his complaints. He presented to the Adjudicator as a credible witness. In the absence of any Respondent evidence or appearance the Adjudicator accepted the Complainant evidence presented. The Adjudicator was satisfied, from supplied documents, that he had been in Insurable Employment with the Respondent 3:1 Terms and Conditions of Employment - CA-00054770-001 Section 3(1) (a) provides (1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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: This statement was not provided. A Compensation award is due to the Complainant. 3:2 Organisation of Working Time Act,1998 CA-00054770-002 Section 14 of the OWT Act,1998 provides Sunday work: supplemental provisions. 14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely— (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or (b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or (c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or (d) by a combination of two or more of the means referred to in the preceding paragraphs. In this case no Premium was paid. The figure of € 25:00 was proposed by the Complainant. In the absence of any Respondent evidence or appearance the Adjudicator accepted the Complainant evidence presented. The Award of € 25:00 will be made in favour of the Complainant. 3:3 Non-Payment of Wages for the 22nd October 2022 Section 5 of the Payment of Wages Act,1991 covers this area. In the absence of any Respondent evidence or appearance the Adjudicator accepted the Complainant evidence presented. An award of € 72:00 will be made in favour of the Complainant.
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4: Decision:
Section 41 of the Workplace Relations Act 2015; Section 7 of the Terms of Employment (Information) Act, 1994; Section 27 of the Organisation of Working Time Act, 1997 and Section 6 of the Payment of wages Act,1991 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.
4:1 Terms and Conditions of Employment - CA-00054770-001
A compensation award of € 100 is made in favour of the Complainant for breach of a statutory right.
4:2 Organisation of Working Time Act,1998 CA-00054770-002
An award of €25:00 is made in favour of the Complainant in lieu of Sunday Premium.
4:3 Payment of Wages Act,1991
An award of € 72 for unpaid wages is made in favour of the Complainant.
Dated: 30th November 2023.
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Term of Employment, Sunday Premium, Unpaid Wages |