Complainant

Respondent

Parties

Diego  Dell´ Aquila

Diondrea Nicosia trading as Little Italy (amended on consent)

Representatives

  Self-Represented

 Cashell Solicitors

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-00048743-001

21/02/2022

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

CA-00048743-002

21/02/2022

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

CA-00048743-005

21/02/2022

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

CA-00048743-006

21/02/2022

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

CA-00048743-007

21/02/2022

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. An Italian interpreter assisted the Complainant and swore an affirmation. Ms Nicosia appeared on behalf of Respondent and swore an affirmation.

The Complainant Form was received by the Workplace Relations Commission on 21 February 2022.

The first hearing was adjourned in the circumstances where the Respondent was self-represented and stated she only received notification of the hearing the Friday before via phone call as the wrong email address was on the Complaint Form. The Respondent was directly to have all her evidence in order in advance of the next hearing date and specific directions were given to produce a contract of employment and payslips from 2020 and 2021. The Respondent also noted her internet did not have a strong connection and she was advised to address this ahead of the next hearing date.

On 14 December 2022 the Complainant provided payslips which were copied to the Respondent.

On the second hearing date the Respondent again complained about her internet connection although there was no issue hearing or seeing her, nor did she have any issues with the connection throughout the hearing. She explained she had engaged a solicitor and was given 10 minutes to make contact to confirm his attendance at the hearing. From review of the file, correspondence from her solicitor was on file and the link to the hearing was sent to the email address the correspondence was sent from for a second time at the outset of the hearing. After a period of 10 minutes the Respondent confirmed she had left a message for her solicitor.  The hearing proceeded initially with the Complainant Form and procedural matters. At that stage approximately 30 minutes after the start time of the hearing there was still no appearance by the Respondent’s solicitor and the hearing proceeded. 

Neither the Complainant or Respondent took the opportunity to cross examine each other.

The Complainant disagreed with the Respondent on the issue of his weekly wage. It is noted in his Complaint Form that he was paid €400 gross per week for 60 hours. Payslips were produced which stated that the Complainant was paid €400 gross per week for June and July 2021. Prior to this the payslips showed a gross wage of €357.10 per week.

CA-00048743-001 – Holiday Pay/ Annual Leave Entitled

The Complainant gave evidence that he did not receive annual leave, nor did he receive payment. It was his evidence that he was laid off during lock down and was not paid annual leave.

CA-00048743-002 – Sunday Compensation

The Complainant gave evidence that he did not receive Sunday premium for working Sundays. He described Sunday as a normal working day.

CA-00048743-005- Holiday Pay/ Annual Leave Entitled

It was the Complainant’s evidence that he did not receive any annual leave payment when he left his employment.

CA-00048743-006 – Public Holiday

It was the Complainant’s evidence that he did not receive his Public Holiday entitlements. He confirmed in his evidence that he worked from July 2020 to September 2020 and again from June and August 2021.

CA-00048743-007 – Notice

The Complainant gave evidence that he was not receive payment in lieu of notice. He confirmed he resigned from his employment.

Complaint Form

The name of the Respondent was amended on consent. The date the Complainant’s employment began was amended to 16 June 2020 and ended on 27 August 2021. It was the Respondent ‘s evidence that the Complainant was paid €400 gross per week over 5 days for 40 -42 hours but regardless of the hours of days he worked, he was still paid the same wage. This wage increased to an additional €100 per week, then €500 gross per week for 11 – 12 hours per day, 5 days a week and at the end he was paid €600 gross per week for 10-11 hours per day, 6 days a week. She confirmed he was provided with housing and meals every day with transport to and from work. The Respondent gave further evidence at the end of hearing that the Complainant was paid €500 per week but €100 was paid for housing. There was also no charge for the time he spent in an hotel in June 2021 or the car he used to travel between Dingle and Killarney. It was the Respondent’s evidence that there was no written contract of employment and confirmed in her evidence the €100 accommodation deduction was not accounted for on the payslips.

CA-00048743-001 - Holiday Pay/ Annual Leave Entitled

The Respondent accepted at the outset of her evidence that she owed the Complainant €340 for “holiday pay” which equated to 4.25 days annual leave.

CA-00048743-002- Sunday Compensation

The Respondent confirmed the Complainant worked on Sundays as a normal day and was paid a salary regardless of how many hours he worked.

CA-00048743-005 - Holiday Pay/ Annual Leave Entitled

The Respondent repeated her evidence that the Complainant was owed €340 for “holiday pay” which equated to 4.25 days annual leave.

CA-00048743-006 – Public Holiday

The Respondent stated the Complainant was paid a salary.

CA-00048743-007 - Notice

It was the Respondent’s evidence that there was no notice paid as he resigned from his job.

It is important to note that for all the legislation which the Complainant seeks to rely on there is a statutory time limitation. Section 27 (4) of the Organisation of Working Time Act 1994 provides:-

“(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Consequently, I am limited as to how far I can look back at the claims where the claims relate to the period, he worked from 21 August up to his date of termination of employment being 27 August 2021.

CA-00048743-001 Holiday Pay/ Annual Leave Entitled

I find the complaint is out of time and therefore is not well founded.

CA-00048743-002 Sunday Compensation

“14.—(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 was accepted by the Respondent that Sunday was a normal working day.

In terms of redress, the Section 27 (3) of the Act sets out the provision for redress:

“(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.”

At all times the onus is on the Respondent employer to ensure an employee is compensated pursuant to Section 14 of the 1997 Act. On this basis I find the complaint is well founded.

CA-00048743-005 - Holiday Pay/ Annual Leave Entitled

Section 23 of the Act in that upon termination of employment: -

“23.—(1) Where—

(a) an employee ceases to be employed, and

(b) the whole or any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.”

I accept the evidence of the Respondent that upon termination of employment the Complainant was owed 4.25 days annual leave for 2021 which equates to the sum of €340.

CA-00048743-006 – Public Holiday

I do not find that there was any public holiday during the period of contravention. Where the complaint is out of time and there was no application to extend time, I find this complaint is not well founded.

CA-00048743-007 - Notice

I find that the Complainant resigned from his position and therefore is not entitled to payment in lieu of notice. I find this complaint not well founded.

CA-00048743-001

I find the complaint is not well founded.

CA-00048743-002

I find the Complaint is well founded and award the sum of €400 in compensation.

CA-00048743-005

I find the complaint is well founded and award the sum of €340 in compensation.

CA-00048743-006

I find this complaint not well founded.

CA-00048743-007

I find this complaint not well founded.

Organisation of Working Time Act – Payment of Wages