Complainant

Respondent

Parties

Kristan Burness

Chickopee Foods Ltd

Representatives

Mr Ryan McManus BL

 Mr Don Garry, HR Alliance

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00045022-001

Withdrawn

05/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047278-001

Withdrawn

22/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047278-002

Withdrawn

22/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047278-003

Withdrawn

22/11/2021

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

CA-00047278-004

Withdrawn

22/11/2021

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

CA-00047278-005

Withdrawn

22/11/2021

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

CA-00047278-006

Withdrawn

22/11/2021

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

CA-00047278-007

Withdrawn

22/11/2021

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

CA-00047278-008

Withdrawn

22/11/2021

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

CA-00047278-009

Withdrawn

22/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047281-001

22/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047281-002

22/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047281-003

22/11/2021

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

CA-00047281-004

22/11/2021

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

CA-00047281-005

22/11/2021

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

CA-00047281-006

22/11/2021

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

CA-00047281-007

22/11/2021

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

CA-00047281-008

22/11/2021

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

CA-00047281-009

Withdrawn

22/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00047281-010

22/11/2021

The respondent’s business is a restaurant trading as Nero XVII in Dublin 7.  The restaurant opened for the first time in November 2019 and, from the end of October, the complainant provided a consultancy service to the owners to help them to set up the business. 

The complainant’s case is that, on May 24th 2021, he was dismissed without cause and that, at the termination of his employment, no procedures were followed.  He submitted a complaint under the Unfair Dismissals Act 1977.  The respondent’s case is that, having been engaged in the first instance as a self-employed consultant, the complainant commenced with them as an employee on June 29th 2020 and that he does not have the requisite service to bring a complaint under the Unfair Dismissals Act.  Complaints have also been submitted under the Terms of Employment (Information) Act 1994, the Payment of Wages Act 1991 and the Organisation of Working Time Act 1997.  Before dealing with the substantive complaints, I must consider the preliminary issue of the status of the complainant between October 2019, when he claims that he commenced employment, and June 29th 2020, when the respondent says that he commenced.

For the respondent, Mr Garry said that the complainant is a consultant, providing advice to entrepreneurs setting up restaurants.  He said that he was engaged initially as a consultant to the respondent’s directors and that he became an employee at the end of June 2020.

A document submitted in evidence is a “Payment Remittance Advice” dated November 15th 2019.  This shows that, on that date, the respondent paid €2,000 in cash to “Di Luca Hospitality,” which, according to Mr Garry, is the complainant’s trading name.  The document appears to be signed by the complainant and it confirms that the payment was received by Kristan Burness.  In his evidence at the hearing, the complainant challenged the authenticity of the signature; however, he did not dispute that he received €2,000 from the respondent on November 15th 2019.  He claims that, from then on, he received €850 every week in cash as wages.  He has no evidence that he received such payments and, on behalf of the respondent, Mr Garry said that, apart from €2,000 paid on November 15th 2019, no further money was paid to the complainant until he became an employee on June 29th 2020.

The copies of bank statements provided after the hearing show that, on 10 occasions during the 15 weeks from the beginning of November 2019 until the end of February 2020, various sums were transferred to the complainant’s account from an account in the Ulster Bank in Blanchardstown.  The first such transfer was for a sum of €1,450 and took place on November 8th 2019, one week before the complainant received the consultancy fee of €2,000 in cash referred to above.   The second is an amount of €1,800, transferred on November 14th, the day before he received the consultancy fee.  Of the 10 transfers, just two are for €850.  The bank statement also show that, in November and December 2019, when the complainant said he was working for the respondent, he was also paid by another entity, who, he claims was his previous employer.  Bank statements are not provided after the end of February 2020.     

The first payslip he received was included in the complainant’s book of papers at the hearing.  This is dated July 9th 2020, and provides details of pay and statutory deductions for week 28 2020.  The payslip shows that the complainant was paid an hourly rate of €15.69 for 40 hours, resulting in gross pay that week of €627.60.  From the following week, the hourly rate is €16.25, resulting in weekly gross pay of €650.  This payslip shows that the complainant received €22.40 in respect of an underpayment the previous week. 

Findings on the Preliminary Issue

The evidence given by both sides in relation to the complainant’s employment status could best be described as economical.  I’m left therefore, to apply my own logic to the issue, based on what I was told at the hearing and taking account of the documents received after the hearing.

The complainant is a consultant in the restaurant business.  In his evidence, he said that, when he finished working for the respondent in May 2021, he spent four or five months doing consultancy and that he has being working on the establishment of a new business.  This is the work he was doing when he helped to set up Nero XVII with the respondent in October 2019.  Whatever arrangement was in place between the complainant and the respondent regarding remuneration, this was not divulged at the hearing.  Although the complainant said that he was paid €850 every week in cash, there is no evidence of this.  The bank statements he provided do not show that he received weekly cash sums of €850 and the respondent’s witness, Mr John O’Neill, denied it.  It seems to me that, as he received a remittance advice in relation to the first cash payment of €2,000, there is no reason why he would not have been issued with remittance advices if he received further payments.  A roster for the week of March 2nd 2020 shows that the complainant was rostered in the kitchen and in front of house that week, but this is not unreasonable for someone with responsibility for setting up a new restaurant.  It does not lead to a conclusion that he was an employee.

In the absence of credible evidence, I do not believe that the complainant was paid €850 in cash between November 2019 and June 2020.  It is my view that there was some agreement in place regarding remuneration, but that Covid-19 had the effect of limiting the amount of cash available in the business and, for this reason, he was not paid, or, he was not paid regularly, until he went on the payroll on July 9th 2020.  From that date, he was paid by credit transfer, directly into his bank account.  A document submitted in evidence shows that, on July 8th 2020, he provided an IBAN number to a company director, Mr Daniel O’Neill, for that purpose.

Due to Covid-19, the restaurant closed on March 16th 2020.  In early May, there was some email communication between Daniel O’Neill and the complainant about a “JustEat” take-away menu and sample pizza boxes were looked at.  The complainant said that he continued to work in the restaurant and, with no explanation, he claims that he was included on the payroll from the beginning of July 2020.  Without any explanation, he was dismissed on May 21st 2021.

Mr John O’Neill, the company director who attended the hearing, was not directly involved in the business of the restaurant and he could not explain why the complainant became an employee in July 2020.  Mr Garry said that he was “not at liberty” to give a reason for the complainant’s dismissal.

I have considered this matter and, despite the fact that he was included on the respondent’s payroll from July 2020 until May 2021, I have doubts over whether the complainant was in fact an employee of the respondent at any stage.  I am satisfied that he was not an employee from the time he was engaged as a consultant in October 2019, until he was included on the payroll in July 2020.  Despite my reservations, I must accept Mr Garry’s submission that, from June 29th 2020, until the date of his dismissal on May 24th 2021, the complainant was employed by the respondent and that his weekly gross pay was €650.

As the complainant was dismissed on May 21st 2021, he does not have one year of continuous service which, as set out at section 2(1)(a) of the Unfair Dismissals Act, is required to have a complaint under that Act adjudicated upon.

The complainant has not established that he has one year of service required to bring a complaint under the Unfair Dismissals Act.  For this reason, I decide that his complaint is not well founded.

CA-00047281-001:  Complaint under the Terms of Employment (Information) Act 1994

The complainant said that, within two months of commencing his employment with the respondent, he was not issued with a statement setting out his terms and conditions of employment.

For the respondent, Mr Garry accepted that the complainant was not issued with a statement in accordance with section 3(1) of the Terms of Employment (Information) Act 1994. 

CA-00047281-002:  Complaint under the Terms of Employment (Information) Act 1994

In breach of section 3(1A) of the Terms of Employment (Information) Act, the complainant said that he did not receive a statement of his core terms and conditions of employment within five days of commencing his employment.

For the respondent, Mr Garry accepted the complainant’s evidence in this regard.

CA-00047281-003:  Complaint under the Terms of Employment (Information) Act 1994

The complainant claims that, arising from the Covid-19 restrictions, his terms and conditions of employment were changed and his wages were reduced when the restaurant changed to a take-away.  He claims that he was not provided with a statement confirming these changes.

Mr Garry accepted that the complainant was not provided with a statement to confirm the change from a restaurant to a take-away because of Covid-19 restrictions.

CA-00047281-004:  Complaint under the Payment of Wages Act 1991

The complainant argues that his wages were reduced from €850 net per week to €650 gross with effect from June 29th 2020.  Mr McManus said that a wage of €650 per week is equivalent to the wages of a junior chef.

For the respondent, Mr Garry said that the complainant worked for a number of entities when he worked for the respondent and that, at no stage when he was employed by the respondent did he object to being paid €650 gross. 

CA-00047281-005:  Complaint under the Organisation of Working Time Act 1997

Mr McManus said that the respondent had no system of recording breaks in the workplace and that, from October 2019 until May 2021, in contravention of section 12 of the Organisation of Working Time Act, the complainant did not get a break during his eight-hour working day.  He said that the complainant’s start and finish time was not recorded.

For the respondent, Mr Garry said that, from the date of his commencement as an employee on June 29th 2020, the complainant took his breaks in the restaurant, and that he was provided with free food and drinks.  He agreed that timesheets were not available and that the complainant did not sign in or clock in and out.  He said that the respondent has no record of the complainant’s start and finish times.

CA-00047281-006:  Complaint under the Organisation of Working Time Act 1997

For the complainant, Mr McManus said that he was required to work every Sunday, and that, in contravention of section 14 of the Organisation of Working Time Act, he was not paid a Sunday allowance.

For the respondent, Mr Garry referred to the payslips which were provided in the complainant’s book of papers at the hearing.  These show that, in respect of Sunday working, the complainant was paid an additional 50 cents per hour.

CA-00047281-007:  Complaint under the Organisation of Working Time Act 1997

Mr McManus submitted that the complainant was not paid when he took holidays during the period that he was employed by the respondent.  He provided no record of dates on which the complainant was on holidays.

Mr Garry could not confirm if the complainant took his holidays while he was employed by the respondent.

CA-00047281-008:  Complaint under the Organisation of Working Time Act 1997

Mr McManus said that the complainant was not paid for working on public holidays when he was employed by the respondent.  He had no information regarding which public holidays that the complainant was required to work.

Mr Garry could not confirm if the complainant worked on any of the public holidays that fell between June 29th 2020 and the date of his dismissal on May 24th 2021. 

CA-00047281-001:  Complaint under the Terms of Employment (Information) Act 1994

There is no dispute between that parties that the complainant was not issued with a statement of his terms and conditions of employment and that the respondent did not comply with section 3(1) of the Terms of Employment (Information) Act in relation to this matter.

CA-00047281-002:  Complaint under the Terms of Employment (Information) Act 1994

It is also not disputed that the complainant was not issued with a statement of his main terms and conditions of employment within five days of the commencement of his employment.  I find therefore, that the respondent did not comply with section 3(1A) of the Terms of Employment (Information) Act in relation to this matter.

CA-00047281-003:  Complaint under the Terms of Employment (Information) Act 1994

In response to the Covid-19 restrictions, the respondent’s restaurant moved to providing a take-away service.  However, in his submission at the hearing of this complaint, on behalf of the complainant, Mr McManus said that, “In early March 2020, just prior to the first lock-down (Covid-19), the complainant came up with the idea of Nero@home as a way to attract other business to the respondent and emailed a marketing idea to the respondent.”

From this, it seems that the take-away business concept was a consideration even before the first Covid-19 lock-down.  It was likely to have been the only business that could be undertaken during the period of the lock-down.  I find that the complainant was on notice from early on that the restaurant would provide a take-away service and that the proposal was substantially initiated by him.  From the perspective of section 5 of the Terms of Employment (Information) Act, I find that the inclusion of a take-away service and the restriction of the restaurant to a take-away business during the lock-downs, was not so significant that it required a written statement to be issued to the complainant.

CA-00047281-004:  Complaint under the Payment of Wages Act 1991

I note that the complainant raised no issue about his wages of €650 gross per week from the date that he commenced as a direct employee on June 29th 2020.  I find no evidence of an agreement to pay him wages of €850 net per week. 

CA-00047281-005:  Complaint under the Organisation of Working Time Act 1997

The complainant’s case is that he was not permitted to take breaks while he was at work.  There are no working time records to examine regarding his working time.  Considering this complaint, I have taken guidance from the decision of the Labour Court in the case of Goode concrete Limited and Dermot Munro[1].  In similar circumstances to the case under consideration here, Mr Munro’s employer did not maintain hours of work records in accordance with Statutory Instrument 473/2000, the Organisation of Working Time (Records) (Prescribed Forms and Exemptions) Regulations.  In accordance with section 25(4) of the Organisation of Working Time Act, the Court determined that responsibility for proving that the complainant took his statutory breaks rests with the respondent.

In the absence of any records to show that the complainant took his breaks during the working day, I must find that he did not get breaks and his complaint in this regard is upheld.

CA-00047281-006:  Complaint under the Organisation of Working Time Act 1997

The complainant provided copies of 23 payslips for varying weeks between July 2020 and June 2021.  The payslips show that, for 19 of these weeks, he was paid a Sunday premium of 50 cents per hour, resulting in additional pay of €3.00, or sometimes, €3.50 for working on Sunday.

Section 14(1) of the Organisation of Working Time Act sets out the provisions for Sunday working:

(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.

It is apparent from this that the legislation requires an employer to compensate an employee for working on Sundays by an allowance that is “reasonable having regard to all the circumstances.”  The question of reasonableness must be judged by reference to a Sunday allowance paid to workers in the hospitality industry and by reference to the employee’s wages.  The complainant’s payslips show that his hourly rate of pay was €16.25.  It is my view that a Sunday allowance of 25% of the hourly rate, or €4.06 per hour is reasonable.

CA-00047281-007:  Complaint under the Organisation of Working Time Act 1997

The respondent provided no evidence that the complainant availed of his entitlement to annual leave, or that he was paid if he went on annual leave.  In the absence of such evidence, the complainant’s case that he was not paid when he was on holidays must be upheld.

CA-00047281-008:  Complaint under the Organisation of Working Time Act 1997

Similar to the complaint above, the complainant’s case is that, in breach of section 21 of the Organisation of Working Time Act, he was not paid his entitlement to an additional day’s pay when he worked on the public holidays that fell between June 29th 2020 and May 24th 2021.  I must conclude therefore, that there is substance to this complaint.

CA-00047281-001:  Complaint under the Terms of Employment (Information) Act 1994

I decide that this complaint, that the complainant did not receive a statement of his terms and conditions of employment is well founded and I direct the respondent to pay the complainant compensation of €1,305, equivalent to two weeks’ gross pay.

CA-00047281-002:  Complaint under the Terms of Employment (Information) Act 1994

I decide that this complaint, that the complainant did not receive a statement of his core terms and conditions of employment within five days of his commencement in his job is well founded and I direct the respondent to pay the complainant compensation of €1,305, equivalent to two weeks’ gross pay.

CA-00047281-003:  Complaint under the Terms of Employment (Information) Act 1994

I decide that this complaint, that the complainant was not provided with written notification of the fact that his employer was engaged in a take-away business in addition to a restaurant is not well founded.

CA-00047281-004:  Complaint under the Payment of Wages Act 1991

I decide that this complaint, that the respondent did not pay the complainant wages of €850 net per week is not well founded.

CA-00047281-005:  Complaint under the Organisation of Working Time Act 1997

I decide that the complainant’s claim that he did not get his breaks during the working day is well founded.  I direct the respondent to pay the complainant compensation of €2,612, equivalent to four weeks’ pay.

CA-00047281-006:  Complaint under the Organisation of Working Time Act 1997

I decide that the complainant’s claim that he did not receive a reasonable allowance for working on Sundays is well founded.  I direct the respondent to pay him compensation of €1,200, equivalent to an allowance of €28.50 for working on 40 Sundays between June 29th 2020 and May 24th 2020.

CA-00047281-007:  Complaint under the Organisation of Working Time Act 1997

I decide that the complainant’s complaint that he was not paid when he went on annual leave is well founded.  I direct the respondent to pay him compensation of €2,612, equivalent to four weeks’ pay.

CA-00047281-008:  Complaint under the Organisation of Working Time Act 1997

I decide that the complainant’s complaint that he did not receive any benefit for working on public holidays is well founded.  Eight public holidays fell between June 29th 2020 and May 24th 2021.  I direct the respondent to pay the complainant compensation of €966, equivalent to approximately eight days’ pay.

Summary of the Redress Awarded

In respect of the six complaints which I have decided are well founded, the total redress awarded is €10,000. 

Status of employment, payment of wages, breaks, Sunday working, holidays, public holidays