Complainant

Respondent

Parties

Louis Ned Kinsley Auguste

Dillinger’s Restaurant Limited

Act

Complaint 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-00049619-001

06/04/2022

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

CA-00049619-002

06/04/2022

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

CA-00049619-003

06/04/2022

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

CA-00049619-004

06/04/2022

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

CA-00049619-005

06/04/2022

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

CA-00049619-006

06/04/2022

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

CA-00049619-007

06/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00049619-010

06/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00049619-011

06/04/2022

The complainant is a chef and he started working in a different restaurant owned by the respondent, in August 2015.  In January 2016, he was promoted and was appointed as a head chef and, in November that year, he moved to Dillinger’s Restaurant.  He handed in his notice on February 3rd 2022, and he left on February 13th.  At the termination of his employment, the complainant’s weekly rate of pay was €798.  His contract does not state his weekly working hours, but indicates that he “will not be required to work more than 48 hours a week in accordance with the provisions of the Organisation of Working Time Act 1997.”

The complainant submitted complaints about hours of work, Sunday working, holiday and public holiday pay and discrimination on the ground of race.  These allegations regarding breaches of employment law span the entirety of the complainant’s service with the respondent.  However, the reckonable timeframe for which I have jurisdiction to consider his complaints is the six months before he submitted them to the WRC.  As he submitted these complaints on April 11th 2022, two months after he left his job, my enquiries are concerned with the four months from October 12th 2021 until his last day of employment on February 13th 2022.

CA-00049619-001:  Sunday Working

It is the complainant’s case that he got no allowance for working on Sundays.  He said that, when the restaurant opened after the Covid-19 restrictions, it closed on Mondays and Tuesdays and all the staff worked from Wednesday to Sunday.  He said that he worked every Sunday and that he never took a Sunday off.

In advance of the hearing, the owner of the restaurant, Mr Farrell provided a copy of the complainant’s three contracts of employment issued to him in 2016, 2017 and 2018.  Under the heading, “Sunday Premium,” the contract states as follows:

“You will be required to work on Sundays as requested by the Company.  This has been factored into your overall rate of pay.  Accordingly, your hourly rate of pay takes into account the fact that you may, on occasion, work on Sundays.  This is in accordance with the provisions of the Organisation of Working Time Act 1997 and no further payment is due to you in relation to the requirement to work on Sundays.”

Mr Farrell was unable to indicate how much of the complainant’s weekly wages was apportioned to the requirement to work on Sundays.

Findings

Section 14 of the Organisation of Working Time Act 1997 provides that employees who are required to work on Sundays will be paid,

1.       An allowance “of such an amount as is reasonable;” or,

2.       By having their weekly pay increased “by such an amount as is reasonable;” or,

3.       By getting time off from work “as is reasonable…” or,

4.       A combination of two or more of the above.  

The complainant’s contract of employment anticipates that he will be required “on occasion” to work on Sundays and that pay for this occasional requirement is included in his weekly rate of pay.    The obligation to work every Sunday is not provided for in his contract.  As the complainant’s inclusive rate of pay includes occasional Sunday working, it is my view that an additional allowance must be paid for working every Sunday.

In a 2015 decision in Chicken and Chips Limited trading as Chicken Hut v David Malinowski[1], the Labour Court decided that a premium of 33% for working on Sundays was reasonable in the sector.  I find therefore that, as his hourly rate was €19.95, the complainant was entitled to be paid an additional allowance of €6.58 per hour for working on Sundays. 

CA-00049619-002:  Non-payment of Wages

During the period of restrictions during Covid-19, the restaurant was open for takeaways and it then re-opened for full service.  The complainant said that they were short of staff in the kitchen and that, in addition to his duties as a chef he was required to do the work of a kitchen porter and cleaner.  He said that he never got paid any additional money for this work.

This complaint is about events prior to October 12th 2021 and is outside the timeframe for which I have jurisdiction to conduct an investigation.  I find also that this complaint is a grievance and is not suitable for investigation under the Payment of Wages Act.

CA-00049619-003:  Rest Breaks at Work   

This complaint about breaks during the working day relates to the period before October 12th 2021 when the complainant said that the staff in the kitchen didn’t get their breaks.  For the respondent, Mr Ramjahn said that the staff got their breaks on a rota basis and that they had time to have a meal in the kitchen.  Like the previous complaint however, this matter is outside the timeframe for which I have jurisdiction to conduct an investigation.

CA-00049619-004:  Excessive Working Hours

In breach of section 15 of the Organisation of Working Time Act, the complainant said that he consistently worked between 55 and 60 hours every week.  During the course of the hearing, Mr Farrell sent me an email with the complainant’s roster which included his roster for the weeks from October 12th 2021 until his last day of employment on February 13th 2022.  The roster shows that the complainant frequently worked long hours, up to 47 hours a week.  However, there is no evidence that he worked more than 48 hours in any week during the period under investigation.

CA-00049619-005:  Holiday Pay

This is a complaint about the fact that the respondent paid the complainant his holiday pay when he didn’t request it.  This occurred before October 12th 2021, during the period of the Covid-19 restrictions and is therefore outside the timeframe for which I have jurisdiction to investigate a complaint.

CA-00049619-006:  Public Holiday Pay

I have examined the correspondence between the complainant and an employee in the company’s accounts department after he left his job.  I am satisfied that the accounts person had a clear understanding of the complainant’s entitlements in relation to pay for public holidays and that he received the correct pay for working on six public holidays between May 3rd 2021 and January 1st 2022.

CA-00049619-007:  Statement of Terms and Conditions of Employment

In advance of the hearing, the respondent provided copies of three contracts of employment issued to the complainant, on December 22nd 2016, November 2nd 2017 and January 21st 2018.  I find that these contracts meet the obligations of an employer to issue an employee with a statement of their terms and conditions of employment, as set out at section 3 of the Terms of Employment (Information) Act 1994.

CA-00049619-010:  Discrimination on the Ground of Race

The complainant perceives that the operations manager and other managers in the company ignored him and were unfriendly towards the staff in the kitchen, who were mostly not from Ireland.  Mr Farrell said that the executive chef in the company is from Mauritius, which is where the complainant is from.  He said that he always greeted the staff in the kitchen when he was in the restaurant.

Apart from his perception that managers were unfriendly towards him, the complainant has not put forward any meaningful evidence to support an assumption that he was discriminated against because he is not Irish.  Mr Farrell disputed any allegation of unfriendliness, but it is apparent that relations between him and the complainant were starting to fray at the edges coming up to Christmas 2021.  The complainant’s sense that the management were unfriendly may or may not be well founded, but it is my view that this was not related to the fact that he is Mauritian.

CA-00049619-011:  Penalisation for Taking Parental Leave

The complainant said that he never applied for parental leave or force majeure leave and this complaint is misconceived.

CA-00049619-001:  Sunday Working

I have concluded that this complaint is well founded.  From the documents submitted by the respondent at the hearing, I note that the complainant worked on 17 Sundays in the final four months of his employment.  I decide therefore, that the respondent is to pay the complainant compensation of €895.00, based on an uplift in his hourly rate of pay of €6.58 for eight hours per day for 17 Sundays.

CA-00049619-002:  Non-payment of Wages

As the matter complained of is outside the timeframe for submitting complaints which is set out at section 41(6) of the Workplace Relations Act 2015, I decide that this complaint is not well founded.

CA-00049619-003:  Rest Breaks at Work   

For the same reason that applies to the complaint above, I decide that this complaint is not well founded.

CA-00049619-004:  Excessive Working Hours

I have examined the complainant’s roster and I find no evidence that shows he worked in excess of the maximum 48-hour working week.  I decide therefore, that this complaint is not well founded.

CA-00049619-005:  Holiday Pay

As the matter complained of is outside the timeframe for submitting complaints which is set out at s. 41(6) of the Workplace Relations Act 2015, I decide that this complaint is not well founded.

CA-00049619-006:  Public Holiday Pay

I am satisfied that the complainant received the public holiday pay to which he was entitled and, for this reason, I decide that this complaint is not well founded.

CA-00049619-007:  Statement of Terms and Conditions of Employment

I am satisfied that the complainant received a written statement of his terms and conditions of employment and I decide therefore, that this complaint is not well founded.

CA-00049619-010:  Discrimination on the Ground of Race

The complainant has not made out a case that, on the basic facts, lead to a presumption that he was discriminated against and I decide that this complaint is not well founded.

CA-00049619-011:  Penalisation for Taking Parental Leave

I decide that this complaint is not well founded because it is misconceived.

Hours of work, Sunday working, discrimination on the ground of race