Complainant

Respondent

Parties

Slawomir  Skrzypiec

Yeung Catering Limited

Representatives

Self-represented

None in attendance

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-00055130-001

16/02/2023

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

CA-00055130-002

16/02/2023

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

CA-00055130-004

16/02/2023

The complainant referred a number of complaints to the Workplace Relations Commission on 16 February 2023 concerning his employment as general manager in the respondent’s restaurant. 

There are three complaints before me for adjudication under the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 1997. 

The complainant has worked in the hospitality sector for approximately 20 years.  He began working with the respondent as restaurant general manager in October 2022.  He had contacted several restaurants by email looking for work and the owner of the respondent’s restaurant, Mr Philip Yeung, had telephoned him back.   

Before he began work, the complainant discussed money with Mr Yeung and it was agreed that he would be paid €35,000 gross per annum plus tips. The complainant was paid weekly.   There was no discussion about hours of work.  The restaurant was closed on Mondays and Tuesdays.  The complainant was rostered and worked every Sunday, except for 25 December 2022 and 1 January 2023 when the restaurant was closed.   The complainant’s employment ended on 15 February 2023.

The complainant submitted copies of payslips, rosters and tips records evidencing days and hours of work.

The complaints concerned the respondent not having provided the complainant with a written statement of his terms of employment, not having received compensation for working on a Sunday and not having received rest breaks.

The respondent or a representative on its behalf did not attend the hearing.

There are two complaints for adjudication under the Organisation of Working Time Act 1997 and one complaint for adjudication under the Terms of Employment (Information) Act 1994. 

CA-00055130-001 (Sunday work)

The complainant’s normal working week was Wednesday to Sunday.  The complainant submitted that he was not paid an allowance for Sunday work and that, based on his work experience and the practice in the hospitality sector, Sunday work normally attracted pay at a rate of time and a half or double time.

Section 14 of the Organisation of Working Time Act 1997 (the “1997 Act”) provides for compensation for Sunday work as follows:-

“(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.”

It is clear from section 14 that where an employee’s pay does not take account of the requirement to work on a Sunday, then the employee shall be compensated by the employer by reference to the criteria set out in subsections (a) – (d).

The complainant’s evidence was that there was no discussion about hours when he started working with the respondent and that the only agreement was that he would be paid a salary of €35,000.00 per annum plus tips.  The restaurant did not open on Mondays and Tuesdays and the roster and tips documentation evidence the complainant working Sundays on a weekly basis, save for Christmas Day and New Year’s Day.  The payslips submitted by the complainant detail basic weekly pay without reference to hours worked. 

The complainant submitted that he ought to have received time and a half or double time for the hours he worked on a Sunday.  However, the complainant was paid a salary and did not present his case by reference to an hourly rate of pay.  I have carefully examined the tips documentation which detailed the complainant’s daily working hours.  I cannot conclude on the case presented and the evidence before me that the requirement for the complainant to work Sundays was not accounted for in the agreed salary or indeed that the complainant’s pay did not make provision for Sunday work at a time and a half rate. 

Accordingly, I find that this complaint is not well-founded.

CA-00055130-002 (Terms and conditions of employment)

The complainant’s uncontested, sworn evidence was that he was not provided with a statement in writing of the terms of his employment. 

At the relevant time, section 3 of the Terms of Employment (Information) Act 1994 (the “1994 Act”) required an employer to give an employee a written statement containing certain particulars of the terms of the employee’s employment within two months of the employee commencing employment.

I am satisfied that this complaint is presented in accordance with section 7 of the 1994 Act and section 41 of the Workplace Relations Act 2015.

On the evidence before me, I find that the respondent has contravened section 3 of the 1994 Act and that this complaint is well-founded. Had the required statement been provided to the complainant, it could have addressed the matters which gave rise to the referral of the complaints in CA-00055130-001 and CA-00055130-004.  In the circumstances I consider it just and equitable that the respondent pay to the complainant compensation in the sum of €2,692.00, which is equivalent to four weeks’ gross pay.

CA-00055130-004 (Rest breaks)

The complainant outlined how he did not receive rest breaks at work.  He normally worked 5 days per week, Wednesday to Sunday.  His position meant that he worked front of house.  On Wednesdays he was the only employee working on the restaurant floor and on other days he would cover for two colleagues on the restaurant floor while they took breaks, but they did not cover his breaks. 

Section 12 of the Organisation of Working Time Act 1997 (the “1997 Act”) provides:-

“(1) 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.

(2) 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).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

I note from the rosters submitted by the complainant that they do not record the complainant’s finish time at work and from the tips documentation that the complainant’s working day typically exceeded six hours.  Based on the complainant’s evidence and in the absence of any records to show that the complainant received breaks during his working day, I find that the complaint of a contravention of section 12 of the 1997 Act is well-founded. I consider it just and equitable having regard to all the circumstances that the respondent pay to the complainant compensation in the sum of €1,500.00.

CA-00055130-001 (Sunday work)

For the reasons set out above, my decision is that this complaint is not well-founded.

CA-00055130-002 (Terms and conditions of employment)

The complainant’s complaint that he did not receive a statement with particulars of his terms of employment is well-founded and I direct the respondent pay to the complainant compensation of €2,692.00.

CA-00055130-004 (Rest breaks)

The complainant’s complaint that he did not get rest breaks during his working day is well-founded.  I direct the respondent pay to the complainant compensation of €1,500.00.

Sunday work – Rest breaks – Statement of terms of employment