ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045729
Parties:
| Complainant | Respondent |
Parties | Shyam Luchun | Thick Skin Restaurants Limited Cinnamon Ballsbridge |
Representatives | Self-represented | Nonattendance |
Complaint(s):
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-00056524-001 | 08/05/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00056524-002 | 08/05/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00056524-003 | 08/05/2023 |
Date of Adjudication Hearing: 15/09/2023
Workplace Relations Commission Adjudication Officer: Conor Stokes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings. The complainant and two witnesses gave their evidence under affirmation. The respondent did not attend the hearing. Notice of the complaint and of the hearing was sent to the registered address of the company by registered and ordinary post. The Companies Registration Office website indicates that the company is still trading normally (as at the date of the hearing). Accordingly, I am satisfied that the respondent was served notice. The hearing proceeded in the absence of the respondent. |
Summary of Complainant’s Case:
CA-00056524-001 The complainant submitted that his employer persistently underpaid him, recording breaktimes as longer than had been taken in order to reduce working hours. The complainant stated that his hours were left short every week and that, on average, he was left short a minimum of two hours per week over the course of his employment. He gave evidence of having worked for over 15 weeks. CA-00056524-002 The complainant submitted that he did not receive his correct holiday/annual leave entitlement. He stated that his total hours worked amounted to in excess of 867 hours and that when taking the calculation provided for in the Act into account, he was entitled to 8% of this as holidays. This amounts to just in excess of 69 hours holidays. The complainant stated that he was paid sum of €318.93 on two occasions in respect of his holiday entitlement. CA-00056524-003 The complainant submitted that he was not paid for three days Public Holidays relating to 25/26 December 2022 and one January 2023. He stated in evidence that although he was not working on those days he was entitled to be paid for those days. Witness testimony: Two witnesses gave evidence in support of the complainant, both were employees of the respondent at the time that the complainant was employed. All three worked in the kitchens in various roles. The first witness noted that the problem started on 26 December when it became apparent that the complainant was not being paid what was due to him. She gave evidence of repeated breaches of time keeping on the part of the respondent and gave five specific dates of when the complainants wages were left short and by how much on each occasion. The second witness gave evidence of being left short monies, but noted that when he raised the matter with the respondent, he was paid the shortfall. He noted that he felt very sorry for the complainant as he was left to deal with things as best he could given the staffing shortages. |
Summary of Respondent’s Case:
The respondent did not attend the hearing of this matter. |
Findings and Conclusions:
The complainant was employed on the basis of a 40-hour week and was paid €19 per hour. The complainant and witnesses came across as credible and although they did not have the documentation available to them, which the respondent is obliged to keep, they gave a reasonable account of their treatment by the respondent. The complainant gave a reasoned account of his situation, referring to pay slips that he had in his possession, and that he made submissions upon. The first witness gave a compelling account of her colleague’s situation, providing detail in response to questioning by the adjudication officer and referring to pay slips where such were available to her. The second witness also corroborated the general situation in the respondent’s kitchens noting that under-recording of break times was a common occurrence in relation to all employees. CA-00056524-001 In relation to this complaint, I am satisfied that the complainant has established that his wages were regularly left short by at least two hours per week. Therefore, I find that the complaint is well founded, and the complainant is entitled to payment of two hours per week amounting to a total of 30 hours. The shortfall therefore amounts to €570. Accordingly, I direct the respondent to pay the complainant the sum of €570. CA-00056524-002 The complainant calculated his annual leave under Section 19(1)(c) as amounting to 8% of hours worked. I am satisfied that the complainant has established that he was not paid for his holiday entitlement in its entirety. Therefore, I find that the complaint is well founded. Section 19(1) of the Organisation of Working Time Act covers annual leave and states as follows: (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. As regards the issue of compensation for this breach of the Act, I consider that compensation equivalent to 8 weeks’ pay is just and equitable having regard to all of the circumstances pertaining to this complaint. The complainant worked 40 hours per week and was paid €19 per hour and therefore I consider that compensation of €6080 is just and equitable. CA-00056524-003 The complainant submitted that he was not paid for Public Holidays due to him Section 21(1) of the Organisation of Working Time Act covers annual leave and states as follows: 21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely— (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day’s pay: Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom. As regards the third complaint I am satisfied that the complainant has established that he was not paid for public holidays for which he was entitled. Therefore, I find that the complaint is well founded. As regards the issue of compensation for this breach of the act, I consider that compensation equivalent to four weeks’ pay is just and equitable having regard to the circumstances pertaining to this complaint therefore I consider that compensation of €3040 is just and equitable. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00056524-001 Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is well founded, and I direct the respondent to pay the complainant the sum of €570 CA-00056524-002 Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is well founded, and I award the complainant compensation of €6080 which I consider just and equitable in the circumstances. CA-00056524-003 Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is well founded, and I award the complainant compensation of €3040 which I consider just and equitable in the circumstances. |
Dated: 27th September 2023
Workplace Relations Commission Adjudication Officer: Conor Stokes
Key Words:
Payment of Wages – well founded – award of pay – Organisation of Working Time Act – 2 complaints - well founded – compensation awarded |