Complainant

Respondent

Parties

Kenneth  Byrne

Cm Bard Tavern Bar Square

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

 Michael Carr, Director

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-00065362-001

08/08/2024

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

CA-00065362-002

08/08/2024

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

CA-00065362-003

08/08/2024

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

CA-00065362-004

08/08/2024

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

CA-00065362-005

08/08/2024

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

CA-00065362-006

08/08/2024

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 three witnesses for the respondent gave evidence under affirmation.  The opportunity to cross examine witnesses was offered but not taken up.

CA-00065362-001 Pay

The complainant stated that he was not paid the amounts to which he was entitled, namely €300 deducted in relation to his rent and an additional €218

CA-00065362-002 Breaks

The complainant stated that he was not provided with breaks in accordance with the legislation

CA-00065362-003 Public Holiday entitlement

The complainant stated that he was not provided with his Public Holiday entitlement in accordance with the legislation.

CA-00065362-004 Annual Leave

The complainant stated that he was not provided with his Annual Leave in accordance with the legislation.

CA-00065362-005 Public Holiday compensation

The complainant stated that he was not provided with his Public Holiday entitlement in accordance with the legislation.

CA-00065362-006 Terms and Conditions of Employment

The complainant stated that his terms and conditions were varied when his rent was deducted from his wages.

CA-00065362-001 Pay

The respondent conceded that it deducted €300 form his wages in respect of rent without prior written authorisation.  In respect of the €218 that was alleged to have been deducted the respondent witness stated that all monies due to the complaint were paid save the deduction for rent.

CA-00065362-002 Breaks

The witness for the respondent stated that all staff were provided with breaks.  She stated that she had seen the complainant enjoying his breaks when eating.  She also stated that the complainant was an unreliable witness when he asserted that he did not receive his public holidays nor annual leave.  She suggested that he was not reliable when he stated that he had never received a break.

CA-00065362-003 Public Holiday entitlement

The respondent witness stated that the complainant was paid for his public holidays and referred to the payslip provided outlining the payment for Annual Leave and Public holidays.

CA-00065362-004 Annual Leave

The respondent witness stated that the complainant was paid for his Annual Leave and referred to the payslip provided outlining the payment for Annual Leave and Public holidays.

CA-00065362-005 Public Holiday compensation

The respondent witness stated that the complainant was paid for his public holidays and referred to the payslip provided outlining the payment for Annual Leave and Public holidays.

CA-00065362-006 Terms and Conditions of Employment

The respondent submitted that there was no change in the terms and conditions of his employment during the six-week period he worked for them.

CA-00065362-001 Pay

The respondent conceded that it deducted €300 from the complainants’ wages with prior written authorisation.  As regards the deduction of €218, no evidence of the deduction has been provided.  This second deduction is not accepted by the respondent.

Section 5(1) of the Payment of Wages Act states as follows:

5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

Having regard to the foregoing, I am satisfied that the complaint is well-founded, and that the respondent deducted €300 from the complainant’s wages in contravention of the Act.  The respondent is directed to pay the complainant compensation of €300 which I consider to be reasonable in the circumstances.

CA-00065362-002 Breaks

The complainant stated that he did not receive any breaks during his employment.  The respondent submitted that he did and a witness for the respondent stated that he may not be a credible witness.  However, that witness also indicated that the employer did not retain any  records regarding breaks given to kitchen staff.

Records.

25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(4) 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 or the Activities of Doctors in Training Regulations 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.

As no written record of the breaks given to kitchen staff has been or currently is being retained by the respondent, I find that on balance, the complainant has established a well-founded complaint in regard to a breach of Section 12 of the Act.  The complainant was employed by the respondent for a period of six weeks.  Arising from this I require the employer to comply with the provisions of the Act and to provide its kitchen staff with breaks.    I also require the employer to pay the complainant compensation of €200 which I consider to be just and equitable having regard to all the circumstances

CA-00065362-003 Public Holiday entitlement

The respondent provided documentary evidence of compliance with the Act in relation to Public Holiday and Annual Leave entitlements.  Therefore, I do not consider that this complaint is well founded.

CA-00065362-004 Annual Leave

The respondent provided documentary evidence of compliance with the Act in relation to Public Holiday and Annual Leave entitlements.  Therefore, I do not consider that this complaint is well founded.

CA-00065362-005 Public Holiday compensation

The respondent provided documentary evidence of compliance with the Act in relation to Public Holiday and Annual Leave entitlements.  Therefore, I do not consider that this complaint is well founded.

CA-00065362-006 Terms and Conditions of Employment

The complainant stated that his terms and conditions of employment were varied and that his employer did not give him notification in writing.  The respondent submitted that there was no change in the terms and conditions of his employment.  Having considered the evidence of both parties, I am not satisfied that the complainant has established that his terms and conditions were changed.  Accordingly, I find that the complaint is not well founded.

CA-00065362-001 Pay

Having regard to all the oral and written evidence presented in relation to this matter, my decision is that the complaint is well-founded, and the respondent is directed to pay the complainant compensation of €300 which I consider to be reasonable in the circumstances.

CA-00065362-002 Breaks

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the Act was contravened, and I require the employer to comply with the provisions of the Act and to provide its kitchen staff with breaks.    I also require the employer to pay the complainant compensation of €200 which I consider to be just and equitable having regard to all the circumstances

CA-00065362-003 Public Holiday entitlement

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is not well founded.

CA-00065362-004 Annual Leave

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is not well founded.

CA-00065362-005 Public Holiday compensation

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is not well founded.

CA-00065362-006 Terms and Conditions of Employment

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is not well founded.

Pay – unlawful deduction – compensation awarded - Organisation of working time – act contravened one instance – compensation awarded – not well-founded – three instances – Terms of Employment – no contravention