Complainant

Respondent

Parties

Tereza  Mlcochova

Numenor Investments Limited T/A Toba Southeast Asian Restaurant

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

 Grant Thornton (Liquidator)

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-00052417-001

25/08/2022

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

CA-00052417-002

25/08/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The Complainant appeared in person and swore an affirmation. Mr Alan McCarthy on behalf of the Liquidator swore an affirmation.

The Complainant Form was received by the Workplace Relations Commission on 25 August 2022.

[Note – checklist to be deleted:

1.       Please remember to particularise attendees and witnesses in each decision.

2.       List all witnesses who gave evidence by name and/or job title.

3.       Detail whether a witness gave evidence on oath or affirmation.

4.       If an interpreter attends, note if the interpreter took an oath or affirmation.

5.       Refer to the cross examination of each witness if cross-examination occurred.

6.       Detail documents received from parties if they are probative and/or relevant to a decision.

7.       Refer to any post-hearing correspondence in the decision. Check CAS just in case any received.

8.       Any atypical element to the proceedings or applications made should be noted in the decision.

9.       Check final hearing closed and all relevant evidence was taken at the hearing]

The Complainant stated in her evidence that she commenced employment on 28 February 2022 and despite turning up for work on 11 August 2022 she found the premises to be closed and did not reopen.

The Complainant gave evidence that she was paid €14 per hour or €17.50 per hour on a Sunday working between 38 – 40 hours per week.

CA-00052417-001

The Complainant’s evidence was that had booked a week’s annual leave the week following the closure of her employer’s business and it was agreed with her employer she would be paid for this time. In all she gave evidence that she was due 90 hours annual leave entitlement.

CA-00052417-002

It was the Complainant’s evidence that she was not paid her final wage for the 20 hours she worked on 8, 9 and 10 August 2022 which amounted to €280.

CA-00052417-001

The evidence on behalf of the Liquidator was the Respondent’s records showed an annual leave entitled of 96 hours due to the Complainant.

CA-00052417-002

The last day of work was noted as being 10 August 2022.

CA-00052417-001

Where the evidence of the Complainant was not contested, I find that her complaint is well founded.

In terms of redress , Section 27 of the Organisation of Working Time Act 1997 provides for the following:

“(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(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 the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.”

I find the complaint is well founded and award the Complainant compensation in the sum of €1,764, that being equivalent to 3 months wages as being just and equitable in light of her length of service and the outstanding annual leave payment.

CA-00052417-002

Again where there was uncontested evidence of the Complainant, I find her complaint to be well founded.

Section 6 (2) of the Payment of Wages Act 1991 provides:-

 “Where a rights commissioner decides, as respects a complaint under this section in relation to a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is well-founded in regard to the whole or a part of thededuction or payment, the commissioner shall order the employer to pay to the employee compensation of such amount (if any) as he thinks reasonable in the circumstances not exceeding—

(a) the net amount of the wages (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

I award the Complainant the net amount of her wages for the 20 hours worked on 8, 9 and 10 August 2022. 

CA-00052417-001

I find the complaint is well founded and award the Complainant compensation in the sum of €1,764, that being equivalent to 3 months wages as being just and equitable in light of her length of service and the outstanding annual leave payment.

CA-00052417-002

I find the complaint is well founded and award the Complainant the net amount of her wages for the 20 hours worked on 8, 9 and 10 August 2022. 

Payment of Wages – Annual Leave