Complainant

Respondent

Parties

Michele  Di Stefano

Elvir Hadzirasidovic

Representatives

Jill Farrelly Citizens Information

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057332-001

23/06/2023

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

CA-00057332-002

23/06/2023

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

CA-00057332-003

23/06/2023

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

CA-00057332-004

23/06/2023

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

CA-00057332-005

23/06/2023

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

CA-00057332-006

23/06/2023

The Complainant alleges that he was not paid for his last three weeks of work and was suspended without pay in an attempt to avoid paying him his notice. The Respondent contests the claim.

The Complainant started working for the Respondent in December 2022. He was given a contract of employment when he started. The first contract he was given did not contain clauses that he wanted. He was then given a second contract and he signed that. In the contract, it mentions the staff handbook. He never got a copy of that. He did request the handbook on two occasions, but he never got it.

He started as a head chef. He was responsible for the food, the quality of the food, for the security of the restaurant, the food orders, quality control of food orders from the wholesalers. His responsibilities were quite wide. He also had to ensure the staff were up to the standards required. He worked full time, but the hours were flexible. Some weeks he worked more than 40 hours and other weeks less than 40. He did have certain freedoms in that regard. This was all discussed prior to commencement.

He resigned on the 18th January. He resigned because the assurances he was given prior to the commencement of his role were not implemented e.g. the food quality was not up to his standards. The food was purchased from Lidl and that was below the standards he expected. He expected that the food would be purchased from reputable wholesales. He didn’t leave immediately because he had to give four weeks’ notice. The contract states that if you wish to terminate your employment you are obliged to give four weeks’ notice. He did stay on to work out his notice. His final day was to be 18th February. That was accepted by the Respondent in writing on 19th January. 

On 25th January he woke up and he felt very unwell. He did go to work, but he was very dizzy. He told his Respondent. He asked if he could go back home. Mr. Hadzirasidovic stated that he could if he needed to.

On the 26th January the Complainant was due to go back to work. When he woke up there was an email from the Respondent stating that he was suspended without pay prior to an investigation taking place. This came out of the blue. Nobody had mentioned any issues to him prior to the email. To the contrary, he has messages on Whatsapp from the Respondent praising him for his work.

The Respondent states that he received a first written warning on 11th January. That is not correct. He was never given a warning. He still, to this day, hasn’t seen it. Prior to 26th January he was never invited to a meeting to discuss the alleged misconduct.

CA 57332 -001 – The Complainant was not paid his wages for the week ending 29th January. He is owed €869.52. That figure is taken from the average of six pay slips he had available to him. Attempts were made to get the payslips from the Respondent, but those attempts failed.

CA 57332 – 002 The Complainant withdrew this complaint.

CA 57332 -003 There were three public holidays 25th/ 26th December and 1st January. He was paid for the two so there is only one outstanding. He is owed € 173.90 gross,

CA 57332 - 004 The Complainant was not paid his wages for the week ending 5th . The amounting owed is € 869.52 gross

CA 57332 -005 The Complainant was not paid his wages for the week ending the 12th February. The amounting owing is 869.52 gross

CA 57332 - 006 The Complainant withdrew this complaint.

The Respondent was opening a restaurant. He placed an ad looking for a head chef. The Complainant applied and a meeting was arranged in Greystones in a coffee shop. The meeting took around 30 minutes. The restaurant manager who is Mr. Hadzirasidovic’s girlfriend was at the meeting too. The restaurant was very small  and Mr. Hadzirasidovic wanted the Complainant to be aware of that. He said that was fine. He told the Respondent “a good chef and made a good dinner out of what ever he has available to him”.  The Complainant said that he would work in the restaurant kitchen, and he would also make the pizzas. He was experienced and worked quickly. His salary was high because he was doing both. He turned out to be an excellent chef and was more than capable of doing both roles. On the 21st December the Respondent received a message from the Complainant stating that he was handing in his notice but that he would work out his notice as he didn’t want me to see the Respondent stuck. His notice was supposed to be in writing. Mr. Hadzirasidovic suggested that they meet the following day and discuss the matter. He was only there two weeks and was doing a good job. The Respondent wanted to know why he wanted to leave. At the same time, the Respondent had a meeting with the new potential General Manager. He stated that they should have a meeting together to discuss the plan going forward. After the conversation the Complainant said that he would not leave and would continue on with his employment.

Everything was fine the following week. The week of the 1st January he was very down and just wasn’t himself. His behaviour/ demeanour had changed. One of the things the Respondent disliked was, he supplied each staff member with three sets of uniforms. He wanted a clean one on every day. His chef’s uniform had a hat. He refused to wear it. Against all of this he had to keep him working in the kitchen. He had nobody to cover for the Complainant.  It was a very busy time and the Respondent was fully Dependent on him.   The Complainant also insisted that he be referred to as Head chef at all times. The soft wear only had two options, “administrator” and “employee”. He insisted he be listed as Head chef. That was impossible.

 After the new year the Complainant started bringing his study books with him to work. He was doing the theory test for bus driving. He told everyone that it was a much better job with more pay. The Respondent really did not like this. He put up with it because he needed him. On the 18th January he got another email from the Complainant handing in his resignation stating that he wasn’t happy with the standards of the food or the kitchen. On the 11th January he was given a first written warning. He refused to sign it, but he took it. He was asked in that warning to label the food and wear his clean correct uniform daily. The first time he every mentioned the health and safety standards was when he resigned on the 18th January.

In the new year we had some issues with the fridge. The Complainant was aware that we had called in some people to try and fix it.  He put a camera in the kitchen so that I could see the temperature of the fridge. It is so important that the fridge is at the correct temperature at all times. On the day he came in saying he wasn’t well, he came in, said  “I am unwell” and turned on his heels and left. On that day the Respondent was looking at the camera. He noticed the Complainant smoking a cigarette in the kitchen. Mr. Hadzirasidovic took advice. That advice was that he was in breach of the law, specifically health and Safety, and he had to act on it. This was gross misconduct.

Mr. Haszirasidovic  had to suspend him without pay because if he did it again the Respondent would be responsible for the breach. The investigation took time as all of the CCTV had he looked at in real time. His notice period expired on 19th February.

He says he wasn’t paid for the week ending the 22nd January. That claim is now withdrawn. He wasn’t paid for the other weeks because the investigation was on going and he was suspended without pay. The Complainant stated that he was never notified of the outcome of the investigation. It was sent to him by post.

The Complainant alleges that he wasn’t paid for the week of the 5th, 12th and 19th February during his suspension which was also overlapped with his notice period. His contractual notice period was four weeks. He resigned his position on the 18th February.

The Respondent alleges that the Complainant was not paid the week of the 29th January and 5th , 12th and 19th February because he was on an unpaid suspension. That suspension overlapped with the Complainant’s notice period. He resigned on the 18th January. His last day was to be the 18th February. He was suspended without pay on the 26th January. The Respondent stated that the investigation took a long time because all of the cctv footage had be looked at in real time.

The issue of a suspension is a controversial one. It was dealt with comprehensively in Bank of Ireland v O’ Reilly 2015 IEHC 241 . Mr. Justice Noonan stated “

The suspension of an employee, whether paid or unpaid , is an extremely serious measure which can cause a reputable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns j. in Morgan v. Trinity college Dublin 2003 3 IR 157 “There are two types of suspension holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire”

Thus, even a holding suspension should not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if scene as necessary to prevent a repetition of the conduct complaint of or interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer.

The Respondent states that he saw the Complainant smoking a cigarette in the kitchen. That is a serious Health and Safety matter. However, based on an analysis of the evidence of both parties I am of the opinion that the only reason the suspension was unpaid was to avoid paying the Complainant for his last few weeks of work. Regardless of the suspension issue he was either entitled to a notice payment for the four weeks’ notice period if he didn’t work it, or to be paid during the suspension. There are no justifiable grounds for an unpaid suspension in the circumstances of this case. Furthermore,  I do not accept the Respondent evidence that it took weeks to go through the cctv footage. It suited him to go thought it slowly so that the investigation would not be completed by the Complainant end date.

In all of the circumstances I find that the Complainant is entitled to be paid for the week of the 29th January, and the  5th, 12th and 19th February.   I am also satisfied that he is entitled to one public holiday pay

CA 57332 -001 – The Complainant was not paid his wages for the week ending the 29th January. The Complainant had the sum of €. 869.52 gross € 684.03 net unlawfully deducted. 

CA 57332 -002 This claim was withdrawn.

CA 57332 -003 There were three public holidays 25th/ 26th December and 1st January. He was paid for the two so there is only one outstanding. He is owed € 173.90 gross.

CA 57332 - 004 The week ending the 5th February. The Complainant had the sum of € 869.52 gross, € 684.03 net unlawfully deducted.

CA 57332 -005 The week ending the 12th February, the Complainant had the sum of € 869.52 gross € 684.03 net unlawfully deducted.

CA 57332 -006 This claim was withdrawn.

CA 57332 -001 – The complaint is well founded. I award the Complainant € 684.03 

CA 57332 -002 This claim was withdrawn.

CA 57332 -003 The complaint is well founded. I award the Complaint € 173.90 gross.

CA 57332 - 004. The complaint is well founded. I award the Complainant € 684.03 

CA 57332 -005. The complaint is well founded. I award the Complainant € 684.03    

CA 57332 -006 This claim was withdrawn.            

Unlawful deduction. Unpaid Suspension. Notice Period. Gross Misconduct. Investigations.