ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00037717
Parties:
| Complainant | Respondent |
Parties | Camile Stapait | Paulo Ribeiro’s Ltd T/A Wasabi Bar and Grill |
Representatives | Self-represented | Self-represented |
Complaints:
Act | Complaint 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-00049096-001 | 08/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00049096-002 | 08/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049096-003 | 08/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049096-004 | 08/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049096-005 | 08/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049096-006 | 08/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049096-007 | 08/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049096-008 | 08/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049096-009 | 08/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00049096-010 | 08/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00049096-011 | 08/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00049096-013 | 08/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00049096-014 | 08/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00049096-015 | 08/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00049096-016 | 08/03/2022 |
Date of Adjudication Hearing: 12/04/2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 8th March 2022, the complainant referred complaints to the Workplace Relations Commission pursuant to various statutes. The complaints were scheduled for adjudication on the 12th April 2023. The complainant attended the adjudication. The respondent director attended for the respondent.
The complaints in this adjudication file were heard with ADJ-00037021 and ADJ-00037063.
In accordance with section 41 of the Workplace Relations Act, 2015 andsection 79 of the Employment Equality Acts, 1998 – 2021 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.
Background:
The complainant outlines that there were many contraventions of several employment law statutes, and the respondent denies the claims.
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Summary of Complainant’s Case:
The complainant outlined that she was dismissed following her request to take annual leave. The respondent informed her that it would not agree to paid annual leave as she was only working for it for 8 months. The complainant said that she commenced in a waiter in May 2021. She worked 40 hours per week. She was paid fortnightly and paid the national minimum wage. She asked for a pay slip and the one provided stated her pay as monthly when it was paid fortnightly. The complainant said that she was never provided with a contract of employment. She worked one or two public holidays. In November 2021, the complainant asked to take annual leave to travel home for Christmas. The respondent said that it would not approve paid annual leave. She travelled home in December 2021. The respondent messaged to say that her job was gone. This was an unfair dismissal as she was dismissed for standing up for her rights. The complainant outlined that she was entitled to one week of notice. She was paid her wages due apart from the notice pay. The complainant said that she would work from 11am to 11pm and only able to take a 20-minute break. They clocked in at the bar and she could not recall whether this recorded breaks. There was a contravention of section 5 of the Terms of Employment (Information) Act as she was not notified of a change. The complaint of discrimination was on the civil status ground as the respondent director accused her of being married to her Irish husband for visa reasons. In reply to the respondent, the complainant denied that the respondent had raised being busy at Christmas in response to the annual leave request. The allegations regarding her husband were not true. |
Summary of Respondent’s Case:
The respondent denied that the complainant was dismissed for asking to take annual leave. She commenced in July 2021 and pay slips were provided and uploaded to Revenue. The respondent outlined that the complainant was dismissed following an incident in the restaurant involving her husband and his behaviour. The respondent told the complainant that she could not take annual leave in December 2021 because Christmas was a busy period. The complainant did not call to the restaurant to collect her notice pay and was owed about €400. The respondent sent the complainant the message after the annual leave was turned down. The respondent referred in the message to December being busy. The complainant was not provided with a contract because she started during the pandemic. The period of employment was the 28th July to the 4th or 5th December 2021. The complainant had taken a week off in July and this was not paid. In documentation sent in after the adjudication, the respondent submitted messages the parties exchanged (in Portuguese and their translation into English). They convey a normal working relationship and the later dispute over leave. |
Findings and Conclusions:
The parties differ as to when the employment started and how it ended. I find as fact that the complainant’s normal weekly wage was €408. Having considered the evidence, I resolve the conflicts in evidence in the complainant’s favour. The employment started in May 2021. I note the complainant’s June 2021 comment in a group chat regarding the restaurant where she states that she works at the respondent. I find that the employment ended following the leave request and as described by the complainant. Working time records The complainant claimed that there were contraventions of the Organisation of Working Time Act, including that she was not able to take breaks. The respondent did not accept this to be the case. Section 25 requires the employer to maintain records of working time. This ensures the effective enforcement of the entitlements emanating from the Act, but also allows employers to check that employees are not working excessive hours, for example over a reference period. Where there are no working time records, the burden of proof to show compliance rests on the employer. Working time – burden of proof Once the complainant has particularised their case and there are no records, it falls on the employer to provide evidence of compliance. The adjudication officer can then determine whether the complaint is well-founded. This approach tallies with the adjudication officer’s duty to inquire, which also requires the complainant to particularise what contravention is alleged and when this took place. Following CCOO v Deutsche Bank C-55/18, the complainant does not bear an initial evidential burden and in the context of an adjudication, is expected to particularise their claim. The onus is on the respondent to show compliance, primarily through records, but potentially via other evidence. It is for the employer to provide such evidence as to show compliance. It is likely, however, that the burden of proof shifting to the respondent in the absence of records will also have consequences for the standard of proof. The emphasis in CCOO on effectiveness is likely to mean that whatever evidence can be relied on by the employer to show compliance in the absence of records must be akin to the objectivity, reliability and accessibility of records. Also flowing from CCOO is that an employer who does not maintain records and whose employees work excessive hours cannot be in a better evidential position than an employer who has records but whose employees also work excessive hours. CA-00049096-001 This is a complaint pursuant to the Organisation of Working Time Act in respect of Sunday premium. The complainant worked on some Sundays and was not paid any Sunday premium. To the extent specified by complainant, I award €100. CA-00049096-002 This is a complaint pursuant to the Payment of Wages Act in respect of notice pay. I deal with the issue of notice pay via the Minimum Notice & Terms of Employment Act. I, therefore, formally deem the Payment of Wages complaint to be not well-founded. CA-00049096-003 This is a complaint pursuant to the Organisation of Working Time Act in respect of daily rest breaks. The complainant has set out the general inability to take breaks and this is referred to in the messages. There are no working time records, so the burden falls on the respondent. To the extent particularised by the complainant, I find that the complaint is well-founded, and I award compensation of €1,000. CA-00049096-004 This is a complaint pursuant to the Organisation of Working Time Act in respect of paid annual leave. The complainant was not paid annual leave and ought to have been. Her employment commenced in May 2021. I have awarded the complainant the value of the annual leave via the cesser leave complaint. I make this additional award of €800, which is redress for a breach of a statutory right and is not remuneration or arrears of remuneration. CA-00049096-005 This is a complaint pursuant to the Organisation of Working Time Act in respect of public holiday pay. The complainant worked public holidays, as detailed in her evidence and the messages. I have dealt with the value of the public leave pay via the cesser pay claim. I make this additional award of €50, which is redress for a breach of a statutory right and is not remuneration or arrears of remuneration. CA-00049096-006 This is a complaint pursuant to the Organisation of Working Time Act in respect of notice of start and finish times of work. There was insufficient evidence of a contravention of section 17 of the Act, so I deem this complaint to be not well-founded. CA-00049096-007 This is a complaint pursuant to the Organisation of Working Time Act in respect of notice of additional hours of work. There was insufficient evidence of a contravention of section 17 of the Act, so I deem this complaint to be not well-founded. CA-00049096-008 This is a complaint pursuant to the Organisation of Working Time Act in respect of unpaid annual leave cesser pay. I have found that the complainant accrued annual leave from May 2021. She worked until December 2021. She worked two thirds of the leave year. She is, therefore, entitled to cesser pay of €1,088. CA-00049096-009 This is a complaint pursuant to the Organisation of Working Time Act in respect of unpaid public holiday cesser pay. The complainant worked one or two public holidays and was not paid in addition to her normal pay or not provided with a day off at a different time. In respect of public holiday cesser pay, I award €163. CA-00049096-010 This is a complaint pursuant to the Terms of Employment (Information) Act in respect of a failure to provide a statement of terms of employment. The complainant was not supplied with a statement of terms of employment within two months of the employment commencing. There is reference in the messages to a contract being provided and more rights to follow thereafter. Section 3 of the Act requires a statement to be provided to the employee, giving them important information about their employment (hours, annual leave, job title etc). The statement is the root of enforcing other employment rights. Not providing a statement is a significant contravention. I award four weeks, i.e. €1,632. CA-00049096-011 This is a complaint pursuant to the Terms of Employment (Information) Act in respect of a failure to notify the employee of a change to the terms of employment. I find that there was insufficient evidence of a change to the complainant’s terms of employment. I find this complaint not well-founded. CA-00049096-013 This is a complaint pursuant to the Employment Equality Act in respect of discrimination on grounds of civil status. I find that there was insufficient evidence presented of a contravention of the principle of equal treatment on grounds of civil status. CA-00049096-014 This is a complaint pursuant to the Minimum Notice & Terms of Employment Act in respect of not getting a statutory period of notice. The complainant’s employment was for longer than 13 weeks. She had an entitlement to one week of notice. This is a contravention of section 4(2). I award the complainant €408. CA-00049096-015 This is a complaint pursuant to the Minimum Notice & Terms of Employment Act in respect of the employee receiving their rights during the notice period. The complainant did not receive notice so did not enjoy the rights provided by section 5 and the Second Schedule. Section 4(2) and 5 are separate rights and can be subject to separate awards of redress. I award €100 for the contravention of section 5. CA-00049096-016 This is a complaint pursuant to the Minimum Notice & Terms of Employment Act in respect of not getting a contractual period of notice. The complainant did not have a contractual period of notice and I have addressed the statutory notice above, so I deem this complaint to be not well-founded. Overall award I have found that some, but not all of the complaints are well-founded. I have made nine awards, which total €5,341. They are made up of the following respective awards (CA, €): 001, €100; 003, €1,000; 004, €800; 005, €50; 008, €1,088; 009, €163; 010, €1,632; 014, €408 and 015, €100. |
Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00049096-001 I decide that there was a contravention of the Organisation of Working Time Act in respect of Sunday premium and the respondent shall pay to the complainant redress of €100. CA-00049096-002 I decide that this complaint pursuant to the Payment of Wages Act is not well-founded. CA-00049096-003 I decide that there was a contravention of the Organisation of Working Time Act in respect of daily rest breaks and the respondent shall pay to the complainant redress of €1,000. CA-00049096-004 I decide that there was a contravention of the Organisation of Working Time Act in respect of receiving paid annual leave is well-founded and the respondent shall pay to the complainant redress of €800. This is redress for a breach of a statutory right and is not remuneration or arrears of remuneration. CA-00049096-005 I decide that there was a contravention of the Organisation of Working Time Act in respect of receiving paid annual leave is well-founded and the respondent shall pay to the complainant redress of €50. This is redress for a breach of a statutory right and is not remuneration or arrears of remuneration. CA-00049096-006 I decide that there was a contravention of the Organisation of Working Time Act in respect of notice of start and finish times of work is not well-founded. CA-00049096-007 I decide that there was a contravention of the Organisation of Working Time Act in respect of notice of additional hours is not well-founded. CA-00049096-008 I decide that there was a contravention of the Organisation of Working Time Act in respect of being paid annual leave cesser pay and this complaint is well-founded. The respondent shall pay to the complainant cesser pay of €1,088. CA-00049096-009 I decide that there was a contravention of the Organisation of Working Time Act in respect of being paid public holiday cesser pay and this complaint is well-founded. The respondent shall pay to the complainant cesser pay of €163. CA-00049096-010 I decide that there was a contravention in respect of section 3 of the Terms of Employment (Information) Act and the respondent shall pay to the complainant redress of €1,632. CA-00049096-011 I decide that there was no contravention in respect of section 5 of the Terms of Employment (Information) Act and the complaint is not well-founded. CA-00049096-013 I decide that the complainant has not established a prima facie case on the civil status ground and the complaint pursuant to the Employment Equality Act is not well-founded. CA-00049096-014 I decide that the complaint pursuant to the Minimum Notice & Terms of Employment Act in respect of section 4(2) is well-founded and the respondent shall pay to the complainant redress of €408. CA-00049096-015 I decide that the complaint pursuant to the Minimum Notice & Terms of Employment Act in respect of section 5 is well-founded and the respondent shall pay to the complainant redress of €100. CA-00049096-016 I decide that this complaint pursuant to the Minimum Notice & Terms of Employment Act is not well-founded. |
Dated: 12/07/2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Organisation of Working Time Act / working time records / Terms of Employment (Information) Act / section 3 statement |