Complainant

Respondent

Parties

Ioan Cosmin  Maties

Ascot Catering Limited Ciao Bella Roma

Representatives

Marius Marosan

Act

Complaint Reference No.

Date of Receipt

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

CA-00039901-001

18/09/2020

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

CA-00039901-002

18/09/2020

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

CA-00039901-003

18/09/2020

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

CA-00039901-004

18/09/2020

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

CA-00039901-005

18/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039901-006

18/09/2020

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

CA-00039901-007

18/09/2020

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

CA-00039901-008

18/09/2020

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

CA-00039901-009

18/09/2020

This case was one of six initially submitted by former employees of Ascot Catering trading as Ciao Bella Roma restaurant. (One of the six eventually withdrew and did not proceed to hearing).

The restaurant closed on March 18th, 2020, at the onset of the Covid-19 pandemic, as did many businesses which involved close contact.

The complainant, and his co-workers lost their jobs on that date and claim they were owed other payments.

Mr. Maties worked as a chef and was paid €100 for every 7 hours worked. That's about €14.29/h and €643.5/week, as he was working 45 hours/week.

Terms of Employment (Information) Acts 1994 to 2012

Mr. Maties started working for the company on 03/09/2006 and he finally received his terms and conditions of employment on 19/08/2013, way past beyond the two months’ time limit prescribed in the law. According to Section 3 of the Act:

"3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a)   the full names of the employer and the employee,

(b)   the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c)   the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d)   the title of the job or nature of the work for which the employee is employed,

(e)   the date of commencement of the employee's contract of employment,

(f)     in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g)   the rate or method of calculation of the employee's remuneration,

(h)   the length of the intervals between the times at which remuneration is paid, whether a week, a month, or any other interval,

(i)   any terms or conditions relating to hours of work (including overtime),

(j)   any terms or conditions relating to paid leave (other than paid sick leave),

(k)   any terms or conditions relating to—

(i)  incapacity for work due to sickness or injury and paid sick leave, and

(ii)   pensions and pension schemes,

(l)   the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made."

The Act has clear provisions regarding how and when an employer should give to the employee the contract or the terms of employment, as the contract does not exist for the employer only.

In Megan Hayes Kelly -v- Beechfield Private Homecare Limited (TED1919), the Labour Court reiterated:

 "It is well-established in the Determinations of this Court that it is not necessary for a Complainant under the 1994 Act to demonstrate that he or she suffered a detriment as a consequence of the Respondent’s failure to fully comply with its obligations under section 3 of that Act.[...] The Act provides that the Workplace Relations Commission, and this Court on appeal, can award up to four weeks’ remuneration when it determines that section 3 of the Act has not been complied with. "

Taking in consideration the aggravating circumstances of the entire situation, Mr. Maties should be awarded the maximum compensation. According to the ECJ decision in Von Colson and Kamann(1984), ECR 1891, the compensation for a breach of a statute - itself derived from and EC directive (Directive 91/533/EEC) - must be of an amount which acts as deterrent.

Organisation of Working Time Act, 1997 - Sunday Premium

Mr. Maties worked on every Sunday 7 hours and no Sunday Premium was paid by the company. Section 14 of the Act states as follows:

"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."

Sunday Premium is calculated at a rate that is normally agreed by the Labour Court (30%), and these are the figures: €780 for 6 months and €1560 for a year.

In order to determine the Sunday Premium, refer to ADJ-00017407 where the Adjudicator awarded €1000 as compensation for 98 hours worked on Sundays for an employee who was paid the National Minimum Wage.

In Anne-Marie Nulty - v - Blackrock Leisure Ltd., DWT1920 the Labour Court also awarded €1800 in compensation for breach of section 21 of the Act. Sunday Premium should also be taken into consideration when calculating the Public Holiday entitlement and Annual Leave.

Regarding the six months cognisable period the redress options as prescribed in section 27(3) of the Act:

"(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." (emphasis added)

As shown in the above details, and as it recently happened, an adjudicator has the option to award a compensation, beside the amounts of money not paid, in order to act as a deterrent. In Krzysztof Cender - v - Onsite Facilities Management Ltd., ADJ-00037816 the adjudicator took into consideration the whole duration of the breach in respect of Sunday Premium, and in fact, the same judgement should be applied to any provisions related to employee rights to payment of premium rates and financial entitlements, such as Annual Leave, overtime (for relevant sectors) and Public Holidays.

Organisation of Working Time Act, 1997 - Breaks

Mr. Maties states that he barely got any breaks, he ate whenever got the chance and sometimes he barely found time to go to the toilet.

In Medfit Wellness Limited -v- Ruth Murphy, DWT1717 the Labour Court underlined the provisions of the Act and the fact that the onus is on the employer to keep records regarding breaks taken by the employees.

The Court found in favour of the employee, citing section 25(4) of the Act: "Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer."

Organisation of Working Time Act, 1997 - Weekly rest breaks

Section 13 of the Act provides:

 " (1) In this section “daily rest period” means a rest period referred to in section 11 .

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3)   An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a)   if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b)   if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4)   If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

(5)   Save as may be otherwise provided in the employee's contract of employment—

(a)   the rest period granted to an employee under subsection (2), or

(b)   one of the rest periods granted to an employee under subsection (3),

shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

(6)   The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned."

Mr. Maties worked a regular schedule of 6 days per week, but on some occasions, he worked 7 days per week. As it is the company's obligation to hold records regarding the working time of the employees, I would kindly ask for the respondent company's representatives to show evidence of the compliance with the provisions of the Act.

In the case of Sandra Cooneys Home Care Limited - v - Deirdre Morgan, DWT1914 the Labour Court substantiate the importance of rest periods for employees as one of the employment rights:

 "The obligation to provide rest periods is imposed for health and safety reasons. The right of workers to adequate protection of their health and safety in the workplace is a fundamental social right in European Law.", and the consequences for breaching these rights: " The right to adequate rest is a right derived from a Directive of the European Union. In Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 the CJEU has made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.".

It is clear from this decision that the Labour Court does not regards breaches of these provisions as of minimal importance and has effectively set out the importance of employers providing the appropriate rest and break periods by what can only be called a substantial increase from €150 awarded by the WRC Adjudicator to €15,000 of the compensation awarded.

Organisation of Working Time Act, 1997 - Annual leave

This aspect is different in the sense that Mr. Maties was in fact paid for Annual Leave when going on holidays, but he was only paid a flat rate of €360/week, which is less than what was the actual entitlement, and this was for 3 weeks per year. So, there is a full week missing from payment and that happened throughout the employment.

The company was aware of the hours worked by Mr. Maties and should have calculated the Annual Leave entitlements at 8% as per the provisions of Section 19 of the Act:

" (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):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

(2)   A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3)   The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement, or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

(4)   Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee's entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

(5)   An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

(6)   References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week. ".

The Respondent company has to recalculate the Annual Leave entitlement for Mr. Vulpe to reflect the hours actually worked. Sunday Premium should also be taken into consideration when calculating the Annual Leave entitlement.

Taking into account the Sunday Premium (30%) it appears that the company paid Mr. Maties €313/week less than actual entitlement. So, the money owed by the company for this section alone: €939 for 3 weeks of annual leave and one extra week paid in full at €673. The total comes to €1612.

In a similar case (Kamil Lemanski - v - Rutledge Recruitment and Training Ltd., DWT 15102) the Labour Court awarded €3000 in compensation to the Annual Leave entitlement for breaches of the Act. I would also refer to the case mentioned earlier in the submission (ADJ-00037816) regarding the extended period of the breach that should also be taken into consideration.

Organisation of Working Time Act, 1997 - Public Holiday

Mr. Maties was working seven-hour shifts on Monday, and was never paid for Public Holiday days.

Mr. Maties was never compensated for working on a Public Holiday. I see myself forced to rely again on section 25(4) of the Act: "Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer."I have not seenany factual evidence that the employer actually paidthe employeethe Public Holiday entitlements, asthat should have been clearly stated on the pay slips.

Mr. Maties should be awarded the full Public Holiday entitlements.

 In a similar case (Anne-Marie Nulty - v - Blackrock Leisure Ltd., DWT1920) the Labour Court also awarded €1800 in compensation for breach of section 21 of the Act and I would also refer again to ADJ-00037816 regarding the extended period of the breach that should also be taken into consideration.

Payment of Wages Act, 1991

1.  Unpaid wages - Mr. Maties was not paid for the last two weeks of employment. He is owned €1347 in unpaid wages.

2.  Dismissed without notice - Taking into consideration the length of service, Mr. Maties was entitled to 6 weeks of notice, which were never paid. The total entitlement on notice period is €4041.

Unfair Dismissals Act, 1977 - Unfair dismissal

Mr. Maties started working soon after dismissal, so I would refer to Section 7 of the Act, as amended which states:

" (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,"

The witness gave evidence on affirmation. The interpreter also affirmed.

The witness stated that his last day of work was March 18th, 2022. The restaurant re-opened in August but neither he nor any of his colleagues were re-engaged. He asked the owner Daniel Boylan whether they would be, and he was forced to leave the restaurant.

He said that the respondent promised to pay outstanding monies due to the employees, but they never did so

In reviewing the submission above the complainant confirmed the facts as set out there.

He confirmed that he did, in fact, receive a statement in compliance with the Terms of Employment (Information Act in 2013 when he was initially employed. Also, despite working every Sunday he never received any premium payment.

In relation to breaks he said he initially worked six days per week with only a one-day break, but this changed in 2016 and he got a two-day break.  Otherwise, he never got anything beyond a brief break lasting a couple of minutes and he had to consume his meals while he continued working.

He confirmed in evidence that he did not receive any payment in lieu of notice on the termination of his employment.

While he was paid for annual leave this was at an incorrect rate and did not take account of his full salary and says he is owed €1612.00.

The claim for public holidays was withdrawn.

Finally, the witness stated that he got no wages for the final two weeks of his employment. Also, he stated in relation to his complaint under the Unfair Dismissals Act that he had no losses attributable to the termination and was seeking the payment of four weeks as provided by the Act.

The respondent did not attend the hearing.

This case was one of six initially submitted by former employees of Ascot Catering trading as Ciao Bella Roma restaurant. (One of the six eventually withdrew and did not proceed to hearing).

The restaurant closed on March 18th, 2020, at the onset of the Covid-19 pandemic, as did many businesses which involved close contact.

The complainant gave evidence of calling to the restaurant when it re-opened in August of that year to enquire about wages etc. that were due to him and his former colleagues.

He was, according to the sworn evidence in that case, asked to leave (to put it mildly) and without any satisfactory indication of what would become of promises that had been made to honour outstanding payments, to say nothing of their status as employees and the prospects of returning to work.

For a number of procedural and logistical reasons (several of the complainants no longer lived in Ireland) there were four efforts made to convene the hearing of the complaints and the respondent was notified on each occasion.

However, there was no appearance by, or on behalf of the company at any stage, or no engagement with the WRC.

While the detail varies somewhat in relation to each of the complainants all have in common that their employment was terminated without notice (in both senses of the word), they worked in an environment in which their statutory rights to breaks, and to paid holidays and public holidays  were not respected and they were all denied payment of wages for the last two weeks of their employment.

I now turn to the detail of this particular complaint.

On the basis of credible evidence delivered on affirmation I make the following findings on the basis of the order of the complaints above.

There were nine complaints. The enumeration below follows that in the Complaint CA-00039901.

According to the WRC complaint form, the complainant’s actual wages were €14.30 per hour for a forty-five hour week.  The complainant has expressed this differently in his written submission as €100 per day for a seven-hour shift, which is a marginal difference, although this only results in a forty two hour week and a weekly wage of €643.50.

To this provision must be made for Sunday premium and I accept the complainant’s submission on this bringing the weekly wage on which the calculation will be based to €673.00.

1)      Complaint CA-00039901-001 is not well founded. The complainant confirmed that he received a statement of his terms of employment.

2)      Complaint CA-00039901 002 is well founded. In respect of Sunday Premium on the basis of those calculations, I award him €780.00.

3)      This complaint was in relation to breaches of the Organisation of Working Time Act, in respect of his entitlements to weekly rest periods; Complaint CA-00039901-003 is well founded and I award the complainant €2,500.

4)      This complaint related to breaches of the Organisation of Working Time Act, for breach of his entitlements to daily rest periods. Complaint CA-00039901-004 is well founded and I award the complainant €2,500.

5)      He was not paid notice on the conclusion of his employment and as he was entitled to six weeks of notice. Complaint CA-00039901-005 is well founded andthe total entitlement re notice period is €4038.00.

6)      Unfair Dismissals Act, 1977 – I find that the termination of the complainant‘s employment was unfair, and I award him €2694 being four weeks’ pay.

7)      In respect of the failure to honour his paid annual leave entitlement, Complaint CA-00039901-007 is well founded and I assess his entitlement to be €2027 (including an element for Sunday premium) and in respect of his claim for Public Holiday I award him €900 for the breach of the Act.

8)      Complaint CA-00039901-005 Payment of Wages Act, 1991 is well founded. The complainant was not paid for the last two weeks of employment, and I award him €1347 in unpaid wages.

9)      The claim for public holidays was withdrawn.

Termination of employment, outstanding claims