ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052261
Parties:
| Complainant | Respondent |
Parties | Berkay Gulmez | Wayback (Clonmel) Burger Ltd (amended on consent at the hearing) |
Representatives | Self-Represented | Mazhar Baig |
Complaints:
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-00063892-001 | 04/06/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00063892-003 | 04/06/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00063892-004 | 04/06/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00063892-006 | 04/06/2024 |
Date of Adjudication Hearing: 30/07/2024
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
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:
The Complainant appeared in person with the assistance of an interpreter and gave his evidence on Affirmation. Documentary evidence was received with his Complaint Form.
Mr. Mazher Baig confirmed, when asked, he was the Company Secretary. He gave his evidence on Affirmation. At the outset of the hearing, he confirmed the correct employer was Wayback (Clonmel) Ltd and the title was amended accordingly.
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Summary of Complainant’s Case:
CA-00063892-001 It was the Complainant’s evidence that he was not paid his final weeks wages from 17 – 24 May 2024 in the sum of €573.05. Bank Statements and text messages were presented in evidence. CA-00063892-003 It was the Complainant’s evidence that he was not paid during his annual leave. He gave evidence that he was unclear as to how many days annual leave he was due as he did not have a contract of employment. He stated he worked from 2 January 2024 until his employment was terminated on 1 June 2024. He took annual leave from 24 May 2024 until the date of his termination. CA-00063892-004 The Complainant stated in evidence he did not receive a contract of employment. CA-00063892-006 The Complainant gave evidence that he was unsure if he was paid a Sunday Premium. Payslips were presented in evidence. |
Summary of Respondent’s Case:
CA-00063892-001 Mr Baig gave evidence on Affirmation that he was not aware whether the Complainant was paid or not. He stated if that was the case the Respondent would make the payments. CA-00063892-003 Again it was unclear to the Respondent if the Complainant had been paid his annual leave but if that was the case, he would be paid. CA-00063892-004 The Respondent accepted the Complainant was not provide with a copy of the contract. CA-00063892-006 The Respondent stated everyone was paid a Sunday Premium referring to the payslip. |
Findings and Conclusions:
CA-00063892-001 Based on the uncontested evidence of the Complainant together with his payslips, bank statements and text messages, I find the complaint is well founded CA-00063892-003 Based on the uncontested evidence of the Complainant, I find the complaint in relation to annual leave to be well founded. CA-00063892-004 Based on the uncontested evidence of the Complainant, I find the complaint in relation to annual leave to be well founded. CA-00063892-006 I accept the evidence of the Respondent based on the payslips provided by the Complainant. I find he was paid an additional sum for working on Sundays. Consequently , I find the complaint is not well founded. |
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-00063892-001 Redress is provided for under Section 6 of the Payment of Wages Act 1991 :- “6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding— (a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that— (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.” I direct the Respondent to pay the Complainant the sum of €672.25 being the gross amount of the wages that would have been paid to the Complainant in respect of the week immediately preceding the date of the deduction, if the deduction had not been made. CA-00063892-003 Section 27 (3) of the Organisation of Working Time Act 1997 provides for redress:- “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.” Where the complaint is well founded I order the Respondent to pay compensation of €1,344.50 being the equalitvant of two weeks wages. CA-00063892-004 Section 7 (2) (d) is the most appropriate redress where the Complainant is no longer employed with the Respondent: “(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.” I find the complaint is well founded. I am awarding the Complainant four weeks renumeration in the sum of €2,689 as being just and equitable having regard to all the circumstances where the Complainant had no awareness whatsoever of his terms and conditions of employment and was left in a difficult situation as a result. CA-00063892-006 I find the complaint is not well founded. |
Dated: 06-08-2024
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
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