Complainant

Respondent

Parties

Arturas  Kononovas

The Gresham Hotel

Representatives

Vivian Cullen                                             SIPTU-Trade Union

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00053422-001

25/10/2022

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to require that all parties giving oral evidence before me, would swear an or make an affirmation as may be appropriate. I confirm that I have in the circumstances administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

The Complainant was fully represented. At the outset, the Complainant was happy to swear an Oath/ make an Affirmation to tell the truth. I was provided with a comprehensive submission. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case.

The Complainant claims that the Employer failed to pay him for hours worked and which should have entitled him to leave in lieu. This accrued to the Complainant he says when he tendered his resignation.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent did not attend. As Adjudicator I made considerable efforts to track down the HR Manager who had made representation on behalf of the Respondent in advance of the hearing and with whom the WRC had been in communication. I telephoned the Respondent Hotel and spoke to a deputy Duty Manager on the morning of the hearing, advising that the HR Manager should be notified that this matter was listed and proceeding. I am satisfied that the Respondent was on notice of the date time and venue for the hearing of this case.

The Complainant had included (in his submission) correspondence from the Respondent from which I was able to discern the Respondent ‘s attitude to the complaint raised.

I have carefully listened to the evidence adduced by the Complainant herein in the course of this hearing. Whilst it is true that the Respondent was not present to give evidence refuting the claim, I am authorised (and indeed obliged) under the Workplace Relations Act of 2015 to make my own inquiries into the matters before me.

As per Section 41(5)(a):

An Adjudication Officer to whom a complaint or dispute is referred under this section shall-

(i) inquire into the complaint or dispute

The Complainant is a chef and commenced his employment with the Respondent Hotel in and around September of 2017. Initially the Complainant has worked at an hourly rate of €12.50. In July of 2021 – some four years into his employment - the Complainant was promoted to the position of Junior Sous Chef on a basic hourly rate of €16.00 per hour. I have had sight of the updated Contract details from the Humas Resource Manager dated the 12th of July 2017. The Complainant agreed with me that the proposed annual gross salary of €33,000.00 equated to a 40-hour week across the 52 weeks of the year.

It is a feature of the Contract of Employment that flexibility in line with seasonal demand is expected. On occasion it is recognised that an employee might be required to work additional hours with appropriate time in lieu being afforded in such circumstances

It seems that when he received his promotion, the Complainant was given access to the computerised online clock-in system which noted that the Complainant had accumulated a not inconsiderable number of hours in what is described as the “Lieu Bank”.

The Complainant assumed that the hours in the said Lieu Bank were the hours still owed to him for the many times that he had worked over and above the 40 hours he was expected to work. He said in evidence that he was very often asked to put in extra hours and shifts as the Hotel was short staffed. This was particularly true of the Covid period. The Complainant was not in a position to exactly state those dates on which these extra hours were worked by him. He said from time to time that he would tell his Employer that he had worked extra hours and they might pay him for an hour or two and advise that he needed to stay on top of those claims – which were to be submitted regularly to the Employer.

The Complainant resigned his position in June of 2022. This was an amicable parting of the ways. The complainant had secured alternative employment. At that time (or just before that time) he says that the Clock-in system showed that his Lieu Bank stated that he had 542 hours. I have been shown a screen grab of this clock in system and there does appear to be a figure of 542 hours in the Complainant’s lieu bank. The Complainant is not necessarily suggesting that he is owed recompense for every one of these hours – this would give rise to a claim of €8,672.00 – but he is adamant that he must be entitled to some of these hours as they are marked as extant. He raised the issue with his Employer before his departure.

I did query whether it was credible for the Complainant to suggest that he was owed the equivalent of 67 separate 8-hour shifts? It is my experience that persons coming before the Workplace Relations Commission are generally acutely aware of hours worked by them and rates of pay due to them and only in the most exceptional circumstances would they forgo immediate and prompt payment. To unknowingly accumulate over 540 hours in lieu just seems extraordinary to me.

To be fair to the Complainant and his representative they have asked me to simply look at this issue from the point of view of the Complainant who has received no reasonable explanation for why these hours came to be accumulated on his record in the first instance and why he is not entitled to be paid for them. The Complainant says that the HR Manager said that she would look at this issue when he was leaving the workplace. The HR Manager stated that it might take up to six weeks to look at the clocks.

I note that the HR Manager did subsequently come back to the Complainant’s representative. I do not know the date of this communication as it is not obvious form the documents provided. The Human Resource Manager has indicated that she has looked at clock hours from December 2021 to the final pay date (comprising holiday pay) of 10th of June 2022. It is not clear from the information provided how or what investigation was conducted. It is clear that the complainant was not asked about his personal recollection of when and if he had worked more hours as against what he was paid for by the Employer. One would have thought that this would have been a starting point for any promised investigation. Of importance to the Complainant, is the fact that there is no rational explanation of how the Lieu Bank came to have a record of 540 hours. This is simply suggested to be incorrect though how, why or in what amount is not divulged.

I accept that it is frustrating for the complainant to feel that he has been underpaid in some way. However his Payment of Wages claim seems to have been triggered by information he found on a clock in system rather than information he had first hand experience of. The Complainant could provide no concrete example of a time that he was called on to work beyond his contracted hours and for which he was not paid through his wages. A vague sense that he had often worked extra hours to which he should be entitled does not, to my mind, bring him into an entitlement under the Payment of Wages legislation.

It is important to note that before the hearing I asked that the Complainant provide me with all the relevant payslips for his period of employment as I wanted to get some sense of whether he had been getting paid his agreed remuneration. The Complainant had provided me with a few payslips but I needed a better overall picture to get a sense of whether it was possible to clock up 500 hours unpaid work.

The documents were meant to arrive on or before the 31st of May 2023, and never did. I could therefore not verify the correctness of the Complainant’s claim.

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

CA-00053422-001 – The Complaint herein is not well founded the Complainant has not established that his wages have been unlawfully deducted.