Complainant

Respondent

Anonymised Parties

A Grill Chef

A Food outlet

Representatives

  Denise Cassidy Solicitor

William Wall Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00053258-001

13/10/2022

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

CA-00053258-003

13/10/2022

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

CA-00053258-004

13/10/2022

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

CA-00053258-005

13/10/2022

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

CA-00053258-006

13/10/2022

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

CA-00053258-007

13/10/2022

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

CA-00053258-008

13/10/2022

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

CA-00053258-009

13/10/2022

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

CA-00053258-010

13/10/2022

The claimant commenced employment on the 18th of February 2022 as a Grill Chef/Counter Assistant and resigned on 18th of September 2022.   He has submitted a claim of constructive dismissal under the Industrial Relations act in respect of his dismissal which he submits occurred due to the unreasonable behaviour of the respondent.

The complainant referred a number of complaints to the Workplace Relation Commission (WRC) under various statutes on 13th of October 2022. Ten complaints have been made in total.  The respondent denies that they have infringed upon the rights of the claimant.

The complaints were submitted on the 13th of October 2022 therefore the cognizable 6-month period of the complaint dates from 14th of April 2022 to 13th of October 2022.  The complainant resigned on 18th of September 2022.

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00053258-001

13/10/2022

The claim form states that the complainant he did not receive his holiday/annual leave entitlements set out in an Employment Regulation Order (ERO)

The respondent is not aware of any Joint Labour Committee (JLC) established under the relevant legislation wherein employers and workers in the industry are represented within the industry to which the claimant is employed.

This claim was withdrawn at the hearing.

This claim was withdrawn at the hearing.   Accordingly, I declare this claim to be not well founded.

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

CA-00053258-003

13/10/2022

The claim form state that the respondent has not paid me or has paid me less than the amount due to me.   It refers to a pay reference period of February 2022 to September 2022.

The claimant submits that he has obtained a statement from the respondent of his average hourly rate of pay for the pay reference period mentioned above or that he requested the statement however the respondent did not provide the statement within 4 weeks of the request being made.

The respondent submits that the claimant made no request for such a statement within the employment dates. If such a statement was requested, it would have been acceded to without delay. The respondent awaits the claimant to set out fully the loss he alleges. To date, no loss has been identified.

The complainant advised the hearing that he had on one occasion been docked an hour as he had shown up for work at this rostered start time and had been told to go away for an hour and get a coffee as there was some work being carried out on the premises.

The complainant outlined an incident where he had come into work for his rostered start time of 12 but he stated that he was told to go away for an hour and have a cup of coffee and come back in an hour as there was maintenance work being carried out on the premises.   The complainant stated that this happened in June or July. The respondent at the hearing stated that he couldn’t recall whether the complainant had been paid for this hour or not.

 The complainant stated that he had gone away for an hour as he was instructed to do by his employer, but that he was then docked 1 hours pay for this even though he had been available and willing to work but was told to go away for an hour.

The respondent at the hearing did not deny this surmising that it could have happened while there was maintenance work being done but he could not say for sure whether or not the complainant was docked hours pay for this.

Accordingly, based on the evidence adduced I am satisfied that hours pay was deducted.  I find the Complainant’s claim in respect of being docked 1 hours pay constitutes an unlawful deduction from his wages within the meaning of Section 5 of the Act.

The complainant when outlining this claim also stated that his hours were reduced following an increase in his hourly rate of pay.  The complainant stated that his hourly rate of pay was increased to €14.50 per hour but he stated that his hours decreased after that and so he did not see the benefit of the raise.   A claim under this act relates to wages payable.  The complainants issue as outlined in relation to his hours being reduced does not amount to an unlawful deduction. 

 However, I find the Complainant’s claim in respect of being docked 1 hours pay constitutes an unlawful deduction from his wages within the meaning of Section 5 of the Act.   Accordingly, I find in favour of the complainant in respect of that matter and accordingly I declare this claim to be well founded.  I award the complainant €30 in respect of this matter.

I do not find in favour of the complainant in relation to this matter and accordingly I declare this claim to be well founded.   I award the complainant €30 in respect of this matter

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

CA-00053258-004

13/10/2022

The claim states that he did not get a daily rest period. The claimant refers that he worked 13+ hours per day sometimes.

No dates of these alleged infringements of his rights under the Act have been provided to with the claim papers.  The respondent refers to the records provided to the commission on the hours worked and rest period taken by the claimant during the employment

Section 11 of the 1997 Act provides:

“An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.”

The complaints were submitted on the 13th of October 2022 therefore the cognizable 6-month period of the complaint dates from 14th of April 2022 to 13th of October 2022.  The complainant resigned on 18th of September 2022 therefore he was employed for 5 months out of the 6 months cognisable period.

The complainant advised the hearing that he had often worked until after 12 midnight and sometimes up until 2 am and then started work again at 12 the next day.

The respondent at the hearing did not dispute this and stated that they were often very busy after midnight and would stay open until 2 or 3 am.  He added that he gave employees the option of staying on past midnight or going home.   When asked if the complainant had 11 hours between ending a shift and starting the next shift the respondent replied, “sometimes he would and sometimes he wouldn’t as we were understaffed”.

I find, therefore, that the employee did not receive a rest period of 11 consecutive hours within a 24-hour period and that the respondent breached s 11 of the 1997 Act and that this complaint is well founded. I order the respondent to pay compensation to the complainant of €1,500 which is just and equitable in all the circumstances.

I find that the respondent breached s 11 of the 1997 Act and that this complaint is well founded. I order the respondent to pay compensation to the complainant of €1,500 which is just and equitable in all the circumstances.

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

CA-00053258-005

13/10/2022

The claimant refers that he did not get breaks. Again, he refers that he sometimes got none. He does not refer as to when he got his breaks and as to when he did not.

The respondent refers to the evidence provided to the commission on the hours worked and the breaks taken by the claimant during the employment.

Section 12 of the Organisation of working time act states that   

An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. And that An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

The complaints were submitted on the 13th of October 2022 therefore the cognizable 6-month period of the complaint dates from 14th of April 2022 to 13th of October 2022.  The complainant resigned on 18th of September 2022 therefore he was employed for 5 months out of the 6 months cognisable period.

The complainant advised the hearing that he did not receive breaks during his working day.  The respondent advised the hearing that it may have been the case that the complainant did not take his breaks.  The respondent stated that the complainant was encouraged to take breaks but sometimes he didn’t take them as he was too busy, and they were understaffed.  The respondent added that the complainant took smoke breaks whenever he wanted to but acknowledged that he may not have taken official breaks due to their being understaffed.

Base on the totality of the evidence adduced I am satisfied that this complaint is well-founded, and I direct the respondent to pay the complainant compensation of €2,000 in respect of this breach.

I declare this complaint to be well-founded and I direct the respondent to pay the complainant compensation of €2,000 in respect of this breach.

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

CA-00053258-006

13/10/2022

The claimant refers that he was required to work more than the maximum number of hours as specified within the Act.

The respondent refers to the evidence provided to the commission on the hours worked for the duration of the employment. The claimant has referred to a reference period of February 2022 to September 2022 and that he was working 60+ hours sometimes

Maximum Working Hours

Section 15(1)(a) of the 1997 Act provides:

“An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed— (a) 4 months . . ..”

The complainant advised the hearing that he had on occasion worked 50 or 60 hours a week even though his contract had stated that he would be required to work 38.5 hours.  He added that he generally worked 5 or 6 days a week and sometimes he worked up to 8 days straight.   The complainant stated that he did not object to this as he had gotten on well with the respondent and loved his job. The respondent at the hearing did not deny this and stated that they were short staffed, and that the complainant did on occasion work up to 8 days straight.  He stated that this had happened on about 5 occasions that the complainant worked 50 or 60 hours in a week.

The complainant stated that he was happy to help out to get things up and running until the incident where the respondent decided to close the business for 8 days as he was going on holidays and when the complainant raised this with him, he was told that he would not be paid for two weeks until the respondent returned from holidays.  The complainant stated that up until this point he had not minded doing extra hours to help out while they were short staffed but after being treated so badly, he felt like none of his efforts had been appreciated.  The complainant stated that he told the respondent he could not survive without any pay for two weeks and threatened to resign over this matter, but the respondent stuck to his position and so the complainant resigned in September 2022. 

I find that the respondent breached s 15 of the Act in permitting the complainant to work in each period of 7 days, more than an average of 48 hours calculated over a period of 4 months.

Accordingly, I declare this complaint to be well-founded and I direct the respondent to pay the complainant compensation of €1,000 in respect of this breach.

Accordingly, I declare this complaint to be well-founded and I direct the respondent to pay the complainant compensation of €1,000 in respect of this breach.

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

CA-00053258-007

13/10/2022

The claimant alleges that he did not receive his paid holiday/annual leave entitlement in accordance with the Act

The claimant does not express the amount of annual leave to which he claims he is entitled. Moreover, the claimant has not expressed within his claim papers the amount of leave to which he refers has not been discharged.   The respondent submits that no hours accrued during the employment have been unpaid.

Section 19(1) of the Act provides for the calculation of statutory annual leave as follows:

“(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

The complainant advised the hearing that he had been entitled to 10 days annual leave in respect of the 6-month period he had worked with the respondent.  It emerged at the hearing that the complainant had taken 7 days holidays out of these 10 days but that 3 days were outstanding, and he stated that he was not paid for these 3 days upon leaving his employment.

I find on balance of probabilities that the Complainant did not receive his annual leave payment from the Respondent and that this was owing to him upon cessation of his employment.

Taking into account all of the circumstances of this case I declare this claim to be well founded and I award the complainant €1,000 as compensation for the breach of the Complainant’s rights under this act.

I declare this claim to be well founded and I award the complainant €1,000 in respect of this breach.

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

CA-00053258-008

13/10/2022

The claimant refers that the respondent failed to discharge his entitlement to public holidays

The claimant has failed to identify his entitlement. Moreover, he fails to refer to what public holidays he is entitled to or what public holiday the respondent failed to discharge.

The respondent refers that he discharged pay in relation to the following dates relating to Public Holidays. 18th March 2nd May 6th June and the 1st of August 2022. 61. The above dates are the dates upon which an entitlement to additional days’ pay arose

In relation to public holiday entitlements, Sections 21 and 22 of the Organisation of Working Time Act 1997 provide as follows:

“Entitlement in respect of Public holidays.

21(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.”

Section 21(2) provides that an employee may, not later than 21 days before a public holiday, request an employer to determine which option applies under Section 20(1) and notify the employee within 14 days of the public holiday. Section 21(3) provides that if the employer fails to do so the employee is entitled to a paid day off on that day or an additional day’s pay if the proviso to Section 21(1) applies. Section 21(4) provides that the aforesaid provisions apply to part-time workers if they have worked at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

“22(1) The rate—

(a) at which an employee is paid in respect of a day off under section 21, and

(b) of an employee’s additional day’s pay under that section, shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.

(2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.”

In the cognisable period covered by the claim there were four public holidays, namely18th March 2nd May 6th June and the 1st of August 2022.  The Complainant claims that he did not receive his statutory entitlements as provided for in Section 21(1) of the Act in relation to the aforementioned public holidays.

The Respondent disputes the Complainant’s claim and contends that he has received his public holiday entitlements in accordance with the provisions of Section 21 of the Act.  The respondent advised the hearing that where the complainant had worked a bank holiday, he had been paid for it.  The complainant stated that he had not however received additional days’ pay in respect of the bank holiday after working bank holidays.

In the circumstances, I find that the Respondent has failed to discharge the burden of proof under the Act that it has complied with the relevant provisions of the Act in relation to the Complainant’s public holiday entitlements during the cognisable period.  I am satisfied that the Complainant did not receive his statutory public holiday entitlements contrary to Section 21 of the Act.

Accordingly, I find that the Respondent has contravened the provisions of Section 21 of the Act and that the complaint is well founded.

Accordingly, I find that the Respondent has contravened the provisions of Section 21 of the Act and that the complaint is well founded.   I award the complainant compensation in the sum of €1,000 in respect of this matter.

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

CA-00053258-009

13/10/2022

The claimant refers that the was not informed of his start and finishing times in advance of him commencing a shift.

The respondent denies this claim as the claimant was fully aware of his start and finishing times as per the roster.

Section 17(1) of the Organisation of Working Time Act requires the following:

17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, that week, and the employee’s employer shall ensure the work takes place within predetermined reference hours and days.

The complainant advised the hearing that the roster did not go up until after 12 midnight and sometimes it was not put up until 2 or 3 a.m. on some occasions.  The complainant stated that he would have to keep checking if the roster was up to find out what time he was working on a Monday and stated that it would sometimes not go up until 2am.    The respondent at the hearing did not deny this and stated that they were open until 2 am at times and so it is possible that it was after 12 when the roster went up.  The complainant advised the hearing that he did mention this to the respondent a couple of times and that the respondent did try to get it up on time, but he was just too busy and often did not finish himself until 2 or 3 am.

Accordingly, I find that the Respondent has contravened the provisions of Section 17 of the Act and that the complaint is well founded.  

Accordingly, I find that the Respondent has contravened the provisions of Section 17 of the Act and that the complaint is well founded.   I award the complainant compensation in the sum of €500 in respect of this matter.

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

CA-00053258-010

13/10/2022

The claimant refers that he was not notified in advance of the additional hours being worked

The respondent submits that this is not the case and that the hours worked were those contracted for. Any hours the claimant would work past his normal hours were paid as over time.

Section 17 of the 1997 Act provides:

“(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week . . . .”

The complainant advised the hearing that it often happened that other staff members did not show up for work and that he always had to cover if this happened, The complainant advised the hearing that he did not receive advance notice of this as he was only told of the additional hours when someone else did not show up.  The complainant could not state when this happened or on what date but stated that it had happened about 4 or 5 times when one particular staff member was off sick, and he had to cover.

The respondent at the hearing did not deny this.  The respondent advised the hearing that sometimes staff were meant to finish at 12 but were offered the option of staying on until 2 or going home. He stated that the complainant often stayed on and was paid.

I am satisfied from the evidence adduced that the complainant was not always aware in advance of additional hours to be worked however I note that in some cases such as where another employee calls in sick it was not always possible for the respondent to give advance notice of additional hours.  However, taking into account all of the evidence adduced I am satisfied that the complainant was not notified in advance of additional hours.   Accordingly, I find that the Respondent has contravened the provisions of Section 17 of the Act and that the complaint is well founded.  

Accordingly, I find that the Respondent has contravened the provisions of Section 17 of the Act and that the complaint is well founded.   I award the complainant compensation in the sum of €500 in respect of this matter.