ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00047741

Parties:

	Complainant	Respondent
Parties	Finley Kennedy	Gavin Ryan and Siobhan Waldon t/a The Black Pig Winebar (amended at the hear

Representatives

Self-Represented

William Wall, Peninsula

Complaints:

Act	Complaint/Dispute 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-00058245-001	11/08/2023
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00058245-002	11/08/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00058245-003	11/08/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00058245-004	11/08/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00058245-005	11/08/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00058245-006	11/08/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00058245-008	11/08/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00058245-010	11/08/2023

Date of Adjudication Hearing: 21/03/2024

Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 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:

The Complainant swore an Affirmation at the outset of the hearing. Submissions were filed in advance of the hearing and shared with the Respondent. CA-00058245-002 was withdrawn prior to the hearing by the Complainant.

Mr. Wall appeared on behalf of the Respondent along with three witnesses, Mr. Gavin Ryan, Ms. Siobhan Waldron and Mr. Brendan O’Sullivan who all swore an Affirmation. Submissions were received in advance of the hearing and relied upon by the Respondent.

These complaints were heard together with ADJ-000xxxxx which were duplicate complaints.

Summary of Complainant’s Case:

Preliminary Issue

It was the Complainant’s evidence that he was an employee up to 6 March 2023 which does fall into the six-month period provided for Section 41 of the Workplace Relations Act 2015.

The Complainant was cross examined on this point and gave evidence that it took him time to gather the evidence together to refer the complaints to the WRC with the trigger event being the text message sent to him from Mr. Ryan on 6 March 2023.

No extension of time was sought.

Background

It was his evidence that he worked as a chef with the Respondent from 27 June 2018 to 6 March 2023 and earned €12.50 per hour.

CA-00058245-001 – Terms of Employment

The Complainant noted Ms. Waldron’s acceptance he was not provided with a contract of employment.

CA-00058245-002 – Hours of Work

Withdrawn by the Complainant.

CA-00058245-003 – Breaks

The Complainant explained that he was never given a break while working with the Respondent. When asked to respond to Mr. O’Sullivan evidence by Mr. Wall, he said he would sit down with his colleagues after he finished his shift regularly. He continued that Mr. O’Sullivan was not aware of whether he was finished work or not.

The Complainant gave evidence that he worked 10 hour shifts and no one came to relieve him for a break. He also submitted he was not paid for his breaks ever.

CA-00058245-004 – Annual Leave Entitlement

It was the Complainant’s evidence that he was paid annual leave when the Respondent decided to close the business and not by choice. Asked under cross examination to list the dates in which he requested annual leave, he was unable to do so.

CA-00058245-005 – Public Holiday

The Complainant noted Ms. Waldron’s evidence that public holidays were not paid by the Respondent.

CA-00058245-006 - Sunday Premium

The Complainant gave evidence that he worked 22 Sundays in 2022 but was not provided with any additional compensation. The Complainant also stated he was not paid anything additional for working Sundays in 2018, 2019, 2020 and 2021.

CA-00058245-008 – Redundancy

It was the Complainant’s evidence that he “felt he was entitled to redundancy” but was not allowed to work for the 104 continuous weeks due to the Respondent’s decision to close the restaurant in January to mid - March every year.

CA-00058245-010 – Annual leave upon termination

The Complainant gave evidence that he never requested his annual leave pay in January 2023 and this was paid without his agreement. He referred to Section 20 of the Organisation of Working Time Act 1997.

Summary of Respondent’s Case:

Preliminary Issue

The Respondent raised a preliminary objection at the outset regard the consignable period where the Complaint Form was filed with the Workplace Relations Commission on 11 August 2023 and the Complainant was not employed by the Respondent in the six-month period prior to August 2023.

Legal submissions were presented on this point with particular focus on the Labour Court decision in Cementation Skanska Ltd and Tom Carroll DWT0388.

Background

It was the Respondent’s evidence that the Complainant’s last date of work was 14 January 2023. His employment was terminated as was the case every year when the restaurant closed until mid-March.

The Respondent confirmed the name of the employer which was amended.

CA-00058245-001 – Terms of Employment

The Complainant noted Ms. Waldron’s acceptance he was not provided with a contract of employment.

CA-00058245-002 – Hours of Work

Withdrawn by the Complainant.

CA-00058245-003 – Breaks

Mr. O’Sullivan explained in evidence that he sat with the Complainant during breaks. He recalled his first night working in September 2022 having his break with him.

Ms. Waldron gave evidence that the Complainant would sign a roster stating he received his breaks and was always paid for the breaks. She was asked by the Complainant about the roster, and she said she could present it, but it was not in her submissions.

CA-00058245-004 – Annual Leave Entitlement

Ms. Waldron opened three pay slips – two from 2022 and one from January 2023 to point to annual leave payment made to the Complainant. When questioned by the Complainant she accepted that he did not ask for the annual leave payment to be made.

CA-00058245-005 – Public Holiday

Ms. Waldron accepted she did not pay the Complainant public holidays which was an error on her part as the Respondent was usually closed on Mondays.

CA-00058245-006 - Sunday Premium

It was Ms. Waldron’s evidence that the Complainant was paid €12.50 per hour which included compensation for working on Sundays.

CA-00058245-008 – Redundancy

It was the Respondent’s evidence from Ms. Waldron that that there was no entitlement to redundancy as he did not have the continuous 104 weeks service to qualify for redundancy.

Legal submissions referring to the Redundancy Payment Acts 1967 were opened by the Respondent.

CA-00058245-010 – Annual leave upon termination

It was Ms. Waldron’s evidence that on 4 January 2023, 19 hours of annual leave hours were paid to the Complainant. A pays slip was presented in evidence.

Findings and Conclusions:

For the purposes of all the complaints except for the redundancy payment complaint, the Workplace Relations Act 2015 is applicable. Section 41 (6) the time limits for presentation of complaints to the Workplace Relations Commission for adjudication: -

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

The Complainant was asked for his response to this question on two occasions during the hearing – at the outset when the preliminary objection was made and again during cross examination. His response was it took him from 6 March 2023 until 11 August 2023 to gather the evidence to refer his complaint to the WRC. It was submitted by the Respondent that reasonable cause had been submitted and no extension of time should be given.

The jurisdiction set out in Section 41 when referring a complaint to the Workplace Relations Commission is limited after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates, is clear. On that basis, the complaints relate to 2018, 2019, 2020, 2021 and 2022, I find I have no jurisdiction to decide on these complaints. As regards the period six months from the date of referral of the complaints on 11 August 2023, i.e., 10 February 2023, there was no evidence that the Complainant worked during this period where it was not disputed his last working day was on 14 January 2023.

CA-00058245-001 – Terms of Employment

Ms. Waldron accepted the Complainant was not provided with a contract of employment. The date of termination is found to be 6 March 2023 where the Complainant was provided with a letter from the Respondent dated 7 January 2023 which can only be read as a letter of lay off where it states the Respondent “will close for annual leave from the 15th January until the 14th March. There will be no hours available during this time for our current staff”. There is no indication that the Complainant’s employment was terminated in this letter which refers to a future date in March 2023. Therefore, I accept the evidence of the Complainant that his employment ended on 6 March 2023 when he was notified by Mr. Ryan that he no hours for him.

Consequently, where the date his employment ended is 6 March 2023, I find that he did refer this complaint to the Workplace Relations Commission within six months of the date of termination as per Section 41 (6), I find the complaint is well founded.

CA-00058245-002 – Hours of Work

Withdrawn by the Complainant.

CA-00058245-003 – Breaks