Complainant

Respondent

Parties

Montserrat  Gordillo

Tomas Oleksey and Lucia Aruizu Villagomez  

Representatives

Richard Grogan Richard Grogan & Associates

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-00045883-001

30/08/2021

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

CA-00045883-002

30/08/2021

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

CA-00045883-003

30/08/2021

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

CA-00045883-004

30/08/2021

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

CA-00045883-005

30/08/2021

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

CA-00045883-006

30/08/2021

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

CA-00045883-007

30/08/2021

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

CA-00045883-008

30/08/2021

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

CA-00045883-009

30/08/2021

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

CA-00045883-010

30/08/2021

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

CA-00045883-011

30/08/2021

The Complainant began working at the Respondents’ restaurant, El Grito Mexican Taqueria on Mountjoy Square in Dublin, in October 2019. Her employment concluded on 31st of July 2021.

The Complainant lodged a number of complaints with the WRC on 30th of August 2021 alleging non-compliance with the Organisation of Working Time Act. The Complainant also lodged a complaint under the Payment of Wages Act and another under the Terms of Employment Information Act.

The Complainant attended the hearing and provided evidence on affirmation with the assistance of an interpreter. The Respondents failed to attend the hearing but later responded to supplemental submissions provided by the Complainant. I am satisfied the Respondents were on notice of the hearing date.

The Complainant alleges a number of breaches of the Organisation of Working Time Acts.

CA-00045883-002

The Complainant alleges to have received no Sunday Premium on Sunday’s worked on the 4th April, 6th June, 13th June, 20th June, 27th June and 25th July 2021.

CA-00045883-003

The Complainant alleges to have worked public holidays on 5th April, 5th May and 7th June 2021 but received no additional pay. The Complainant clarified that she did not receive paid time off in the alternative. She worked 5 hours on each of these public holidays.  The above complaint specifically references Section 22 of the Act. 

CA- 00045883-004

The Complainant alleges to have worked public holidays on 5th April, 5th May and 7th June 2021 but received no additional pay. The Complainant clarified that she did not receive paid time off in the alternative. She worked 5 hours on each of these public holidays.  The above complaint specifically references Section 21 of the Act.

CA-00045883-005

The Complainant estimates that she had, on 19 occasions, received her roster with less than 24 hours notice.

CA-00045883-007

The Complainant alleged that they did not receive pay for annual leave taken in the leave year spanning April 2020 to March 2021. The Complainant was clear that she had taken 4 weeks off in this time but was not paid for it.

CA-00045883-008

The Complainant alleges that the Respondent’s operated a policy of openly ignoring the minimum requirements set out in the Organisation of Working Time Acts.  Breaks were only offered to employees who worked 8 hours or more and these would be for 30 minutes. The Complainant provided a copy of the internal staff policy on the issue which states (in Spanish) that 30 minute breaks would be given to employees working 8 or more hours in a day and 15 minute breaks given to those who worked between 6 and 8 hours. The Complainant alleges that the normal shift she worked was 5 hours so she rarely received a break.

The Complainant had also submitted a number of complaints which she did not pursue, particularise nor provide any evidence of at the hearing.

CA-00045883-001- Which concerned an alleged failure to provide her with a statement of particulars compliant with the Terms of Employment Information Act 1994.

CA-00045883-006 - Which concerned an alleged failure to provide her with 2 weeks unbroken leave.

CA-00045883-009 – Which concerned what appears to have been a duplicate claim of CA-00045883-005.

CA-00045883-010 – Which concerned a complaint under the Payment of Wages Act.

CA-00045883-011 – Which concerned an alleged failure to provide her with a weekly rest period.

At my request the Complainant provided a supplemental submission containing her payslips for the relevant period.

In July 2021 she was paid €1404 in salary and €1643 in holiday pay.

In June 2021 she was paid €1890 in salary.

In May 2021 she was paid €2910 in salary.

In April 2021 the payslip is incompletely copied but appears to have a nil payment.

In March she was paid €1890 in salary.

The Respondents did not attend the hearing. I am satisfied that relevant notification was sent to the restaurant which is still in operation.

The Complainant’s supplemental submission concerning her pay in the relevant period was sent to the Respondents for their comment. This submission generated a reply by email from Tomasz Oleksy.

In this email Mr Oleksy provided a number of documents. There were two letters dated the 8th of August 2021 which appear to be a template resignation letter and statement confirming that the Complainant had settled all financial matters and received all tips, holiday pay and wages.

There was also a written warning dated 30th of June to the Complainant alleging that she had behaved unprofessionally on a number of occasions.

These documents were sent to the Complainant’s solicitor’s practice and a period of three weeks were allowed  so that the Complainant might respond if she felt this was necessary. No response has been received within or after that time period.

The Respondents failed to attend the hearing and as such did not provide any evidence under oath. The supplemental documents provided by Mr Olesky are of limited use to the determination of this matter. I do not know who drafted the documents which the Complainant appears to have signed and there were no actual working time records provided by the Respondents. Section 25 of the act requires that an employer provide records to prove their compliance with the Organisation of Working Time Act.

Notwithstanding the requirements of section 25 all parties who appear before the WRC have an obligation to appropriately particularise their complaints and to provide clear and entirely accurate evidence. The Complainant did attend the hearing and was asked to confirm whether her claim for annual leave (CA-00045883-007) was that she received no holiday pay and confirmed that it was. She has since provided the WRC with a July 2021 payslip which contains a payment of approximately 4 weeks pay as holiday pay.

I do not believe the Complainant was attempting to be dishonest, not least because it was her own supplemental submission which alerted me to the error in her evidence. However as a result of this serious error I find that I am unable to rely on her oral evidence nor would it be reasonable to simply place the Respondent on their proofs on the basis of Section 25 and find in favour of the claims that the Complainant did not provide any additional evidence for.

On the basis of the above I find that complainants CA-00045883-002, CA-00045883-003, CA- 00045883-004, CA-00045883-005 and CA-00045883-007 must fail. 

CA-00045883-001, CA-00045883-006, CA-00045883-009, CA-00045883-010, CA-00045883-011 were not pursued at the hearing and no reference to them was contained in the Complainant’s submissions or evidence and as such these must also fail.

 CA-00045883-008, which concerned the issue of rest breaks, was advanced by the Complainant in the hearing and a copy what appears to be the Respondent’s policy on the issue was provided.

This policy outlines that 15 minute breaks would only be allocated to those who worked over 6 hours. 30 minute breaks were allocated to those who worked over 8 hours. Section 12 of the Organisation of Working Time Act provides that an employer must provide a 15 minute break to an employee working over 4 and a half hours and a 30 minute break for those working over 6 hours.

The Complainant mostly worked 5 hour shifts, which is only slightly above the minimum threshold for a break. As such though there is a breach of the legislation in her case it was not against a backdrop of working excessive hours without a break.  

Notwithstanding the above I am of the view that any award should also take into account the fact that the European Working Time Directive, which the Organisation of Working Time Act transposes, fundamentally concerns worker health and safety. A worker’s skill and ability to react can diminish throughout the course of the working day and in a busy restaurant environment this can result in injury, work breaks reduce this risk. Despite this the Respondents appear to have openly operated a system which did not comply with minimum break entitlements.

As such, on review of the above factors and the employee’s salary, I am of the view that an award of €1200 is appropriate compensation for the breach.

I find that complainants CA-00045883-001, CA-00045883-002, CA-00045883-003, CA- 00045883-004, CA-00045883-005 CA-00045883-006, CA-00045883-007, CA-00045883-009, CA-00045883-010 and CA-00045883-011 are not well founded. 

I find that complaint CA-00045883-008 is well founded.

I direct the Respondents pay the Complainant €1200 in compensation for the effects of breaching her statutory rights.

With reference to my powers under Section 27(3)b I direct that the Respondents review their breaks policy to ensure compliance with the Organisation of Working Time Act going forward.