ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00039886
Parties:
| Complainant | Respondent |
Parties | Anna Csernus | Above Board Catering Limited |
Representatives | Appeared In Person, accompanied by a friend. | No Appearance by or on behalf of the Respondent |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00051457-001 | 30/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00051457-002 | 30/06/2022 |
Date of Adjudication Hearing: 17/04/2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act, 1991 and Section 27 of the Organisation of Working Time Act, 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:
On June 30, 2022, The Complainant, a lay litigant, submitted two complaints to the WRC pertaining to a short period of employment in the Hospitality Industry in 2022. The complaints were notified to the Respondent on August 30, 2022. On 4 September 2022, the Respondent responded and disputed the complaints made. He wrote that he was prepared to receive any further correspondence on the case and to attend Mediation.
On March 2, 2023, both Parties were invited to attend an adjudication hearing set for 17 April 2023 at the WRC offices in Cork. The Complainant forwarded some documentation in advance of hearing. She attended the hearing in the company of a friend and explained that it was important for her to advance her case in person. She explained that she had experienced a very difficult time at this employment.
There was no appearance by or on behalf of the Respondent.
As per the WRC Protocol, I allowed some time before commencing the hearing, if the Respondent had been met with an untoward event or an inability to locate the Offices.
I am satisfied that the Respondent was on full notice of the hearing as the notification papers issued to the identical address referred to as the company email address on 4 September 2022.
I waited the requisite 5 days post hearing in case, the Respondent wished to address the nonappearance at hearing through exceptional circumstances. The Respondent made no further contact with the WRC. I find the nonappearance of the Respondent at hearing to be unreasonable and inconsistent with the Company message on file from 4 September 2022. At the conclusion of the hearing, I requested that the Complainant forward a copy of the letter of resignation referred to as June 2, 2022, and a copy of the second contract referred to in evidence. I am grateful for their prompt submission.
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Summary of Complainant’s Case:
The Complainant worked as Waiting Staff at the Respondent Restaurant from 16 April 2022 to the 2 June 2022. The Complainant took the oath to accompany her evidence in the case. Prior to commencing at this employment, the complainant had worked full time for a separate employer in the same town. She contended that she had not been paid correctly by the Respondent in the instant case and wages had been withheld on both 29 May 2022 and 5 June 2022. The Complainant submitted that she was owed a cumulative €494.99. CA-00051457-001 Payment of Wages The Complainant outlined that she had left a previous employer based in the same town to commence work in the Respondent Restaurant on 16 April 2022. She was informed that the job was to be full time but described her hours as 22 hrs in return for €251.40 in wages. She recalled signing an initial contract for a full-time worker on €11.00 per hours but had not been presented with a copy. The Complainant was dissatisfied with both the work allocation and the way payment was received on a delayed and an ad hoc basis. She worked as a Waitress and had been subject to emergency tax on her transition to this employment. The complainant exhibited some ATM records of wages deposits in addition to a snapshot of eight Revenue payroll submissions 17 April to 5 June 2022. The issue of alleged non payment of wages was linked to the arrival of a refund of in tax which appeared to have been administered by the Respondent on week ending May 8, 2022. This confused the Complainant. The pay slip for this week reflected €979.23. The Complainant contended that this tax rebate had been unfairly administered by the Respondent. She had not received €979.23 that week. The Complainant submitted that the Respondent had approached her on 31 May 2022, seeking her approval to a revised contract of employment. This document reflected a planned reduction in pay of 50 cents to reflect the employee dissatisfaction with her performance. She signed this contract but was dissatisfied. She resigned without notice on 2 June 2022 and returned to her former employer. She had sought to resolve the matter of her unpaid wages, but this approach had been firmly rejected by the Respondent, who accused her of breach of contract in a text. (exhibited) She sought payment for: 29 May 2022. Revenue records displayed €218.03 paid, but not received. 5 June 2022 Revenue records displayed €122.76 paid, but not received. Total €340.79 CA-00051457-002 Organisation of Working Time Act The Complainant submitted that she had not received paid annual leave during her employment or as cesser pay at the conclusion of her employment. She contended that she was owed €154.20 based on €10.50 per hour. |
Summary of Respondent’s Case:
On 30 August 2022, the Respondent was notified of the submission of two employment rights claims by the Complainant. There was no appearance by or on behalf of the Respondent at hearing. I find that I am bound to include the full text of the Company message submitted on 4 September 2022 to the WRC, as the sole defence filed in this matter.
CA-00051457
I Ikbal would like to dispute the above reference complaint as the employers and employee has the legal contract signed bonding, the result of the breaching of the contract issuing this complaint. I am happy to provide the both parties signed contract (if applicable (During Anna Csernus employee with us, she received all her wages (time of worked) according to the book and signed. CA-00051457-001 Payment of Wages Act The Respondent did not attend the hearing or particularise a defence in the case. CA-00051457-002 Organisation of Working Time Act The Respondent did not attend the hearing or exhibit records as a defence in the case.
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Findings and Conclusions:
I have been requested to consider these complaints and to decide whether I have established contraventions of either the Payment of Wages Act, 1991 or the Organisation of Working Time Act, 1997.
In arriving at my decision, I have considered the parties written submissions. I have reflected on the Respondent absence from hearing. I have considered the Complainants uncontested evidence at hearing and her exhibited documentation.
I found some inconsistency in her recall of the last time she met the Respondent, she referred to a revised contract being imposed on 30 May 2022 by him, yet in her post hearing documentation, she referred to May 10, 2022, at their last meeting. She may have been mistaken in this regard.
CA-00051457-001 Payment of Wages Act
The Law on Payment of Wages is found in Section 5 of the Payment of Wages Act, 1991.
Payment for work done is the cornerstone of all employment contracts.
Regulation of certain deductions made, and payments received by employers.
5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
(c) in the case of a deduction, the employee has given his prior consent in writing to it.
Section 5(6) Where— Properly Payable
(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or
(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,
then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.
I have listened very carefully to the Complainant in this case who expressed a profound sense of disappointment in the job she accepted in April 2022. She said that she was not paid on time, that pay was supplemented with random cash and the tax rebate, which emerged from emergency taxation was not directed towards her in full. I also heard her as she explained that the Respondent had expressed a disappointment in her performance as waiting staff.
I would have liked to have heard from the Respondent in this matter. I would have welcomed a clarification on the tax rebate. However, I am satisfied that the Respondent, while on notice of the hearing, decided not to attend. I found this to be unreasonable in the circumstances as it made it very difficult for me to identify the parameters of a contract from April 2022, which appears from the Complainant evidence to have been replaced by a unilateral imposition of altered terms in May 2022, which culminated in the Complainants resignation by letter dated June 2, 2022.
It seemed to me that the Respondent did not engage in a respectful discussion on the conclusion of employment as two sequential weeks’ pay were not paid to the complainant. Instead, the complainant was met with the stated terms of the second contract which linked the complainant to having to provide two weeks’ notice.
I have found that this contract was based on an illegality as it deviated from the statutory provisions in Section 6 of the Minimum Notice and Terms of Employment Act ,1973.
Right of employer to notice.
6.—An employer shall, subject to the right of an employee to give counter-notice under section 10 of the Act of 1967 or to give notice of intention to claim redundancy payment in respect of lay-off or short-time under section 12 of that Act, be entitled to not less than one week’s notice from an employee who has been in his continuous employment for thirteen weeks or more of that employee’s intention to terminate his contract of employment.
The Complainant had not been in continuous employment for thirteen weeks or more at the time of her resignation.
I heard her recollection of the circumstances of her resignation. This was uncontested evidence in the absence of the respondent.
I find that the complainant was hired on a full-time contract in April 2022. She was only provided with part time work and was not paid a full-time salary at €11.00 per hour. I found that the second contract exhibited on the day of hearing demonstrated an illegality of enforced pay deduction, albeit over the last two days of the employment relationship.
I have not identified any set of circumstances whereby the sums raised as properly payable by the complainant were paid at week ending 29 May and 2 June 2022. I find these amounts were properly payable for work done.
I found that the failure to provide the contractual hours of full-time employment from April 16, 2022, amounted to a contravention of Section 5(1) of the Act. The Complainant had not given her permission for this deduction.
I found that the respondent’s failure to engage at the conclusion of employment or during this hearing to be utterly unreasonable. On reading a text attributed to but not proven as issuing from the Respondent, I observed some threatening tones on the topic of the complainant’s pursuance of payment of wages.
I find the claim is well founded.
CA-00051457-002 Organisation of Working Time Act
I have not been provided with records of annual leave from this employment. I followed the pay slips presented by the Complainant, which were silent on annual leave, but did reference payment for public holiday.
I find that her agreed wage was €11.00 per hour rather than the latter-day reference to €10.50.
Compensation on cesser of employment.
23.— (1) (a) Where—
(i) an employee ceases to be employed, and
(ii) the whole or any portion of the annual leave in respect of the relevant period 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 find that the Complainant gave uncontested evidence supported by pay slips, neither of which confirmed payment for annual leave at the conclusion of her employment in June 2022.
I find the complaint to be well founded.
Decision:
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. CA-00051457-001 Payment of Wages Act, 1991 Section 6 of the Payment of Wages Act, 1991, requires that I make a decision in relation to the complaint in accordance with Section 5 of that Act. I have found the claim to be well founded. I order the Respondent to pay the Complainant €1,200 in reasonable compensation, less statutory deductions for the contravention of Section 5 of the Act.It may also be of benefit if the Respondent could provide a written statement in clarification to the Complainant on the tax rebate which featured in this case. CA-00051457-002 Organisation of Time Act, 1997 Section 27 of the Organisation Act, 1997 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Section 23 of that Act. I have found the claim well founded. In the absence of any contrary records from the Respondent, I accept the Complainant evidence that she was denied cesser pay. I order the Respondent to pay €500.00 in compensation for the breach of Section 23 of the Act. |
Dated: 09th May 2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Non-Appearance of Employer at hearing. Payment of Wages. |