Complainant

Respondent

Parties

Antonio  Santoiemma

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 27 of the Organisation of Working Time Act, 1997

CA-00039902-001

18/09/2020

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

CA-00039902-002

18/09/2020

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

CA-00039902-003

18/09/2020

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

CA-00039902-004

18/09/2020

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

CA-00039902-005

18/09/2020

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

CA-00039902-006

18/09/2020

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

CA-00039931-001

19/09/2020

This case was one of six initially submitted by former employees of Ascot Catering trading as Ciao Bella Roma restaurant in Dublin city centre. (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.

One of the complainants (ADJ 30663) 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 his evidence, and to put it mildly asked to leave 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.

The complainant is Antonio Fillipo Santoiemma. Mr. Santoiemma worked as bar staff for thirty-nine hours per week and was paid €11 per hour. If he worked more than 39 hours, he was not paid for the hours worked.

Mr. Santoiemma worked on every Sunday for six hours and no Sunday Premium was paid by the company. The calculation for Sunday Premium in based on a rate that is normally agreed by the Labour Court (30%), and these are the figures: €514.8 for six months and €1029.6 for a year.

Organisation of Working Time Act, 1997 complaints; Mr. Santoiemma did not get a chance to take proper breaks or get his proper Annual leave entitlement or payment. He was given three weeks’ holidays per year but received no pay. His entitlement for Annual Leave is €1795.2. This amount includes Sunday Premium.

As he was never paid the Public Holiday entitlement, Mr. Santoiemma is owed €772.2 for this breach.

Payment of Wages Act, 1991

Mr. Santoiemma was not paid for the last two weeks of employment. He is owed €897.6 in  unpaid wages. Taking into consideration the length of service, he was entitled to four weeks of notice, which were never paid. The total entitlement on notice period is €1795.20.

Unfair Dismissals Act, 1977 - Unfair dismissal. Mr. Santoiemma was re-employed soon after the termination, so the maximum amount of compensation is four weeks’ pay.

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

In reviewing the submission above the complainant confirmed the facts as set out there. Also, despite working every Sunday he never received any premium payment.

In relation to breaks he said occasionally got a fifteen-minute break but equally often worked through the break.  He often worked consecutive shifts and got a break between the two shifts. He confirmed in evidence that he did not receive any payment in lieu of notice on the termination of his employment.

In relation to annual leave, he got no paid time off in 2020 and as he was the barman he always worked on public holidays and got no compensatory payment or time off.

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.

There was no appearance by, or on behalf of the respondent at any stage, or no engagement with the WRC.

While the detail varies somewhat in relation to each of the complainants in the other cases 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 complaint.

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

There were seven complaints, and the numbering below follows the order of the complaints in the CA number 39902. (The Unfair Dismissals Act complaint has a separate CA number; CA-00039331-001).

According to the WRC complaint form, the complainant’s actual wages were €11.00 per hour for a thirty-nine-hour week (€429 per week).  In his submission above the complainant has factored in  provision for Sunday premium and I accept the complainant’s submission on this bringing the weekly wage on which the calculation will be based to approximately €448.00 (with some rounding).

1)               In respect of Sunday Premium on the basis of those calculations, complaint CA-00039902-001 is well founded and I  award him €514.80.

2)     Complaint CA-00039902-002 is well founded in respect of breaches of the Organisation of Working Time Act, for breach of his entitlements to daily rest periods and I award the complainant €2,500.

3)      Payment of Wages Act, 1991. Complaint CA-00039902-003 is well founded The complainant was not paid in lieu of notice, and I award him €1795.20.

4)     In respect of his complaint for public holidays Complaint CA-00039902-004 is well founded I award him €772.00. 

5)     In respect of the failure to honour his paid annual leave entitlement, Complaint CA-00039902-005 is well founded I find his entitlement to be €1795.00. (including an element for Sunday premium)

6)     Payment of Wages Act, 1991. The complainant was not paid for the last two weeks of employment, Complaint CA-00039902-006 is well founded and I award him €899.00 in unpaid wages

7)     Unfair Dismissals Act, 1977 – I find that the termination of the complainant‘s employment was unfair, and I award him €1795.00 being four weeks’ pay.

In respect of Sunday Premium on the basis of those calculations, complaint CA-00039902-001 is well-founded and I award him €514.80.

Complaint CA-00039902-002 is well-founded in respect of breaches of the Organisation of Working Time Act, and for breach of his entitlements to daily rest periods and I award the complainant €2,500.

Complaint CA-00039902-003 under the Payment of Wages Act, 1991 is well-founded The complainant was not paid in lieu of notice, and I award him €1795.20.

In respect of his complaint for public holidays, Complaint CA-00039902-004 is well-founded I award him €772.00. 

In respect of the failure to honour his paid annual leave entitlement, Complaint CA-00039902-005 is well-founded I find his entitlement to be €1795.00. (including an element for Sunday premium).

Payment of Wages Act, 1991. The complainant was not paid for the last two weeks of employment, Complaint CA-00039902-006 is well-founded and I award him €899.00 in unpaid wages.

Unfair Dismissals Act, 1977 – I find that the termination of the complainant‘s employment was unfair, I uphold complaint CA-00039931-001 and I award him €1795.00 being four weeks’ pay.

Unfair Dismissal, Wages, annual leave