Complainant

Respondent

Parties

Jinxiu  Zheng

Ming Feng Limited

Representatives

Cian Beecher, Arthur Cox LLP instructed by Migrants Right Centre Ireland

Not represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00057465-001

03/07/2023

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

CA-00057465-002

03/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00057465-004

03/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00057465-005

03/07/2023

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

CA-00057465-006

03/07/2023

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

CA-00057465-007

03/07/2023

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

CA-00057465-009

03/07/2023

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

CA-00057465-010

03/07/2023

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

CA-00057465-011

03/07/2023

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

CA-00057465-012

03/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00057465-013

03/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00057465-014

03/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00058648-001

04/09/2023

The complainant moved to Ireland to commence employment as a chef with the respondent in July 2022. He had discussions in advance of travelling with one of the Directors of the respondent company. He alleges that his work permit was arranged which involved the payment of a recruitment fee. The employment ended on 15th January 2023. The complainant, with the assistance of his representatives, made complaints under National Minimum Wage Act, Payment of Wages Act, Organisation of Working Time Act, Minimum Notice and Terms of Employment Act, and Employment Equality Act.

Summary of Complainant’s Evidence

The complainant gave evidence of how he came to work in Ireland which involved the payment of fees to work in the restaurant under a work permit. The work permit allowed him to work with the respondent from 1st March 2022 until 29th February 2024. The employment contract was agreed prior to his travel to Ireland and stated his pay as €15.78 per hour with a normal working week of 39 hours. The contract also stated that he would receive a premium of 30 cent per hour for Sunday work.

He was paid €50 euro on his first day of employment on 30th July 2022 and was informed that he would be fully employed from the next day. He was paid €300 in cash per week on a Sunday and did not receive payslips. He gave evidence that he worked between 50-60 hours per week and his breaks were of 5-10 minutes duration for food. He did not take annual leave during his employment.

He initially trusted his employer although he then began to query whether tax was being paid on his behalf. He did not receive the rate of pay as specified in the contract and he got one day off over the Christmas period.

When he checked the revenue website, he discovered that he was not paying tax and he raised this with one of the Directors. Each time he raised the tax issue, he was told by the Director that his work permit and status as a worker could be in jeopardy. He made complaints about his increased working hours. Each time he raised issues, he said he was punished by getting the dirty jobs around the restaurant. When he queried his pay, tax, and hours, he was told that the employment contract did not apply to him as a foreign worker. He said other staff were treated differently and received money for extra hours and their work was appreciated more. Regardless of the extra hours he worked, his wages remained at €300. 

He denied the comments in the respondent’s submission about his work ethic. He said his work ethic was good and that he commenced work on time. He said the allegation that he attended the casino and gambled was untrue as he was able to save some of his earnings. He had some money and borrowed the rest from friends and family to pay the recruitment fee. He had paid substantial monies towards the recruitment fee and a contract was drawn up which included terms that he would work for five years and that his tax would be paid. He said that there was mention of a third party to be included in the contract as agent. His understanding was that the recruitment fee he was paying was going directly to the Directors account.

He said that it was normal in this type of business for his rent/food to be paid and this was the arrangement in other restaurants also. The issue of rent/food was agreed prior to his travel to Ireland and was not mentioned in the contract.

As a dispute arose with the Director over the outstanding recruitment fee payment, he was informed that he would be replaced with another foreign worker and his work permit would be cancelled.

He said that his final weeks wages were withheld. On 17th January 2023, he was to return the key to his accommodation. He did not do this as he had no alternative accommodation. A few days later, a director requested him to sign a resignation letter. When he translated this letter, it purported to say that he was resigning on good terms and that he was surrendering his employment permit. He refused to sign the letter.

On 14th February 2023 he received his outstanding pay for his last week when the €300 was thrown on the floor by one of the Directors. He also left the accommodation on this day.  

He concluded by stating that there were many others who worked in similar circumstances who could not do anything about their predicament as they had come to Ireland on borrowed money and were dependent on their employers for their work permit and accommodation. 

The respondent made a submission to the WRC on 13th July 2023. Arising from the Supreme Court findings in Zalewski v. Adjudication Officer & Ors [2021] IESC 24, evidence is given to the WRC under oath or affirmation. The WRC guidance document allows for the submission of documentary evidence in advance of the hearing. The respondent’s submission consists of a general summary of how the complainant was treated during his employment. He received accommodation and food, and his work ethic was questioned. Although documents are helpful to confirm or deny facts, the evidential weight of submissions are limited particularly as the complainant was unable to cross-examine the respondent on any conflicts of evidence. There were no official documents such as wage slips, contracts of employment, attendance records or policies/procedures contained in the submission.

Although the submission confirms that the complainant arrived in Ireland to work from 30th July 2022, it states his employment did not formally commence until 26th September 2022 as the initial period was for trial work as he was learning on the job.

The respondent did not provide wage slips although a table in the submission shows a payment of €615.50 gross per week from 6th October 2022 to 29th December 2022. The submission states that there was never a promise that rent/food expenses would be free, and the complainant made no payment for these. The submission confirms his normal starting time of 3.30pm and then states that the complainant spent periods on his mobile phone and chatting to his wife. The submission states that normal working time on Saturday is not 2.30pm as claimed by the complainant and is 3.30pm.

The submission states the complainant was not required to cook his meals, rested more than he worked and often went to the casino. The submission includes a business utility bill with over €20,000 in arrears.

The submission denies discrimination against the complainant and states that he slandered the Directors for not paying tax for him as an excuse not to repay the recruitment fee. It states that the money was owed through an intermediary agent to work as chef in the restaurant and the complainant has not paid all monies due to the agent. The submission states that he left the employment on 15th January 2023. As he could not be found, his employment permit was cancelled on 21st February 2023. 

CA-00057465-013- Employment Equality Act, 1998

Discrimination Complaint

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

• (a ) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Section 6(2) (h) then sets out that it shall be unlawful discrimination to treat a person less favourably than another person has been or would be treated due to a different race, colour, nationality or ethnic or national origins.

Section 85A(1) of the Acts provides:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The complainant is required to establish facts from which discrimination can be inferred. It is only when this burden is discharged does the burden shift to the respondent to show that no unlawful discrimination took place. The Labour Court in Southern Health Board v Mitchell [2001] ELR 201considered the extent of this evidential burden on a complainant and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

Section 77(5)(a) of the Acts provides:

“Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

(6A) For the purposes of this section-

(a)   Discrimination or victimisation occurs-

(1)   If the act constituting it extends over a period, at the end of the period,

(2)   If it arises by virtue of a term in a contract, thoughout the duration of the contract, and

(3)   If it arises by virtue of a provision which operates over a period, throughout the period,

It is well recognised that discrimination is rarely a once-off and often occurs over a period. Where discrimination is alleged to be continuing over a period, s 77(6A) of the Employment Equality Acts permits the referral of such a complaint, provided that the claim is submitted within six months of the end of the alleged discrimination.

The complainant is alleging that he was discriminated against in relation to his conditions of employment as per section 8 of the Act. The cognisable period is 4th January 2023 up to the events surrounding the termination of his employment. If alleged instances of discrimination over that period also operated over a previous period, I can also consider these matters as a continuum to the most recent discriminatory act.

Finding

The complainant gave evidence that his contract was not honoured throughout his employment. He worked more than the contracted hours and was not paid the hourly rate in the contract. He also gave evidence that other staff were paid extra monies for additional hours. He gave evidence that when he queried these issues, he was informed that the contract did not apply to him as a foreign worker on a work permit. He said that the other workers in the restaurant were not dependent on a work permit as a foreign worker as he was constantly reminded of. He understood that one of the staff had become an Irish citizen. He gave evidence that he was treated differently to other staff and these issues related to his terms of employment. At the end of his employment, he was pressured to sign a resignation letter. It was in English, and he did not understand it. He got it translated himself and refused to sign it as it did not reflect the true reasons for the termination.

These issues at the end of his employment extended over the course of his employment as he was treated differently to other staff. The original contract was in English and could not be understood so he was at a distinct disadvantage throughout his employment. When he raised the different conditions of employment, he was told that the employment contract did not apply to him as a foreign national with a work permit. When he checked his tax situation on revenue, he discovered that no tax was being paid on his behalf. His tax situation was resolved to some degree as he was classified as paying tax from 6th October 2022 albeit this was only resolved towards the end of his employment.

The respondent in their submission gave information of the payment of tax from October 2022 onwards and claimed that the employment only formally commenced at the end of September 2022. The respondent’s submission does not refer to any other staff and does not mention the complainant’s contract.

Based on the uncontested evidence of the complainant, I find that the complainant was discriminated against in relation to his conditions of employment compared to other staff in the restaurant. I am satisfied that this occurred because of the complainant’s race. He was treated less favourably than other staff who were not foreign nationals relying on a work permit. Evidence was given that his hours, rate of pay and payment for extra hours were different. There was no evidence from the respondent of how other staff were treated for tax purposes. The evidence showed the respondent was tardy in organising the complainant’s tax affairs. I am satisfied that this was also because he was a foreign national depending on a work permit.

The absence of the employment contract in the respondent’s submission is most unusual. There is no explanation for the absence of the contract when pay, working time, and conditions of employment were the complaints.

In arriving at my decision, I have considered the Labour Court decision in Campbell Catering v Rasdaq [2004] E.L.R.310 as authority where language is a barrier the employer is under a positive duty to translate and ensure a full understanding of terms and conditions.

I decide that the complainant was discriminated against on race grounds.

I find the complaint well founded.

Harassment Complaint

Section 14A of the Act provides that harassment of a worker on any of the discriminatory grounds, at his workplace or otherwise in the course of his employment constitutes discrimination by the employer. The definition of harassment can include any form of unwanted conduct which is related to any of the discriminatory grounds. To come within the statutory definition, the conduct complained of must, in the words of the statute, have: “the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.  The test is a subjective one in that the impugned conduct need not be directed at having the purpose described by the statute.

The cognisable period is 4th January 2023 up to the events surrounding the termination of his employment.

The complainant gave evidence of how he was treated during his employment. When he raised issues about his terms of employment, he was told by the Director that he was on a work permit and could easily be replaced. He gave evidence that he was in fear of his employer as his accommodation was dependent on his continued employment. He said that when he raised issues this resulted in him being assigned dirty jobs within the restaurant. He was treated in a different way to other staff due to being a foreign worker on a work permit. When his contract was terminated, he had no accommodation so did not return the key. He was pressured to sign a resignation letter without understanding or getting assistance as to what it meant. Shortly afterwards he had his last week’s wages thrown on the ground.

A single incident of harassment may constitute harassment. In this case, what occurred at the end of the employment was indicative of the humiliating and degrading treatment over the course of employment. I am satisfied that this occurred because of the complainant’s race and that he was a foreign worker reliant on a work permit.

Once harassment has been alleged under the Act, an employer can avail of a defence to demonstrate the steps taken to prevent harassment. The respondent’s submission does not outline any measures or policies to prevent harassment within the workplace.

For the reasons outlined, I find that the complainant was harassed during his employment on the grounds of race.

I find the complaint well founded.   

Redress on Discrimination

Section 82 of the Act states the following:

(1)   Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a)…..

(b)……

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77

I am minded that as per the Directive that penalties must be effective, proportionate, and dissuasive. The complainant in this case was dependent on his employer for income, accommodation, and his worker status to remain in Ireland.

An award is not confined solely to monetary or financial loss and should have regard to the overall effects of discrimination. For the complainant in this case, the discriminatory treatment occurred over a protracted period.

I decide that the respondent should pay the complainant compensation of €15,000.

Redress on Harassment

I considered the recent Labour Court decision in Allpro Services v. Waszkiewicz EDA2336 and the redress provided. In that case, the harassment was taking place at a lower level within the employment whereas in this case a director of the company harassed the complainant. Therefore, this case can be distinguished from Allpro Services as the harassment suffered was at the hands of management. I am minded in awarding compensation that there should also be an adequate dissuasive effect.

I decide that the respondent should pay to the complainant compensation of €10,000.

CA-00057465-001 & CA-00058648-001 National Minimum Wage Act

Section 23 of the Act requires the complainant to request a written statement of his average hourly rate of pay for a reference period within the previous 12 months.

As per the decision of the Labour Court in Byrne v. Rubio-Piment MWD202, if the respondent has not replied within 4 weeks, the complainant then has 6 months to make a complaint to the WRC.

The complainant sought average earnings from his employer on 26th June 2023 by registered letter. He did not receive a response. He then referred the complaint to the WRC on 4th September 2023.

The complainant earned €300 for 9 weeks and was not registered for tax. He was not paid the minimum wage which at that time was €10.50. In his evidence, the complainant said his hours were 50-60 hours per week.

The respondent submission confirms the payment of €300 per week although states the initial 9-weeks was a trial period.

Section 22 of the Act sets out that the employer should retain records for 3 years to show compliance with the Act. As the respondent has not submitted records or given direct evidence, I am satisfied with the complainant’s evidence that he worked between 50-60 hours per week.

I find the complainant worked a minimum of 50 hours per week over the 9-week period. The Act allows for a deduction to be made for food and accommodation when provided so I am making a deduction of €500. The complainant was earning €6 per hour instead of €10.50 as the minimum wage. In accordance with the Act, over the 9-week period the complainant is owed arrears of wages of €1,525.

I find the complainant well founded and direct the respondent to pay arrears of wages of €1,525 to the complainant within 42 days of the date of this decision.

CA-00057465-004 & CA-00057465-005 Payment of Wages Act

The Relevant Law

Section 5(1) of the Payment of Wages Act 1991 sets out the parameters according to which deductions may be made from an employee’s wages:

“(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.”

It is clear from this section that, apart from statutory deductions of tax, PRSI and USC, or those permitted by contract, before any other deduction is made from an employee’s wages, they must provide their written consent.

Section 5(6) addresses the circumstances in which wages which are properly payable are not paid:

“(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Wages Properly Payable

The complaint was received in the WRC on 3rd July 2023, so the cognisable period is from 4th January 2023 to the date of termination on 15th January 2023. The complainant gave evidence that he worked a minimum of 50 hours per week even though the employment contract stated 39 hours per week. Under the same contract he was entitled to be paid €15.78 per hour with a 30-cent premium paid on Sundays.

The respondent confirmed in their submission that the complainant was paid €615.50 gross per week over that period.

I find that there was an underpayment of net pay of €250.

Recruitment Fee

The complainant has claimed he made payments to the respondent as his employer which are prohibited under section 5(1) of the Act.

It is an offence under section 23 of the Employment Permits Act, 2006 to seek to recover a fee.

Part of this fee was paid prior to the commencement of the employment contract.  The alleged payments, if proved, involve criminal sanctions. As there was no appearance by the respondent, there is no direct evidence. An alleged criminal offence of this nature requires a more rigorous investigatory process.

I find that I have no jurisdiction to decide on this aspect of the complaint.

CA-00057465-002/006/007/009/010/011 Organisation of Working Time Act

CA-00057465-002- Sunday Premium

As the only Sunday that was worked within the cognisable period was Sunday 8th January 2023, I have already factored this into the compensation award under the Payment of Wages Act.

I find this complaint not well founded.

CA-00057465-006- Annual Leave

Section 23 (1) of the Act provides that where a person ceases to be employed and has accrued annual leave the employer must compensate for the loss of the annual leave.

The contract of employment states that leave is accrued from the commencement of employment and is 4 working weeks. As the complainant has worked almost 6 months, he would have accrued almost two weeks leave. Based on the average hours worked per week, I calculate that he should be compensated by an award of €1000.

I find the complaint well founded. I decide that it is just and equitable to require the respondent to pay the complainant compensation of €1000.

CA-00057465-007- Public Holidays

 The complaint was received in the WRC on 3rd July 2023, so the cognisable period runs from 4th January 2023 to the date of termination on 15th January 2023. No public holidays fell within this period.

I find this complaint not well founded.

CA-00057465-010- Rest Breaks

Section 12 sets out the entitlement to rest and intervals at work.

12. (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).

The complainant gave direct uncontested evidence that his breaks consisted of 5-10 minutes for food.

Section 25 (1) of the Act requires an employer to retain records to show compliance with the Act. Although each case is determined on its own evidence, ultimately it is the employer who is responsible for ensuring compliance with the Act. In Tribune Printing & Publishing Group v GMPU, DWT046/047, the Labour Court set out the employer obligations to have proper procedures in place for employees to take appropriate breaks. 

I find this complaint is well founded. I decide it is just and equitable to require the respondent to pay the complainant compensation of €300.

CA-00057465-011- Weekly Working Hours

Section 15(1)(a) of the Act provides that in each period of 7 days an employer shall not permit an employee to work more than an average of 48 hours over a reference period that does not exceed 4 months.

The complainant gave evidence of weekly hours of between 50-60 hours over the course of his employment which spanned nearly 6 months. Although, the respondent in their submission denies abusing the complainant, there were no records provided to show compliance with the Act. In the absence of any records, I am satisfied with the complainant’s direct evidence that he worked more than 48 hours per week.

I find the complaint well founded. I decide it is just and equitable to require the respondent to pay the complainant compensation of €500.

CA-00057465-014- Minimum Notice & Terms of Employment Act 1973

Section 4 of the Act provides that an employer shall give minimum notice when terminating the contract of employment. As the complainant had 13 weeks or more service, he was entitled to 1-week statutory minimum notice. The complainant gave evidence that his employment was terminated without notice and that he refused to sign a resignation letter that it ended on good terms.

I find that there is insufficient evidence on how the employment ended and whether it was through a dismissal or resignation. The employment permit was not cancelled by the respondent until 21st February 2023.  It is clear though that any trust between the parties had broken down and an employment relationship could not continue.

I find this complaint not well founded.

CA-00057465-013- Employment Equality Act

Discrimination Complaint

I find that the respondent discriminated against the complainant on race grounds on his conditions of employment.

I decide that the respondent should pay the complainant compensation of €15,000.

Harassment Complaint

I find that the respondent has harassed the complainant on race grounds.

I decide that the respondent should pay the complainant compensation of €10,000.

CA-00057465-001 & CA-00058648-001 National Minimum Wage Act-

I direct the respondent to pay arrears of wages of €1,525 to the complainant within 42 days of the date of this decision.

CA-00057465-004 & CA-00057465-005 Payment of Wages Act-

Wages

I find that the complaint pursuant to the Payment of Wages Act to be well founded and that the respondent shall pay to the complainant compensation of €250.

Recruitment Fee

For the reasons outlined earlier, I find that I have no jurisdiction to decide on this aspect of the complaint.

CA-00057465-002- CA-00057465-006- CA-00057465-007 -CA-00057465-010- CA-00057465-011-  Organisation of Working Time Act-

CA-00057465-002-Sunday Premium-

I find this complaint not well founded.

CA-00057465-006- Annual Leave-

I find this complaint well founded. I decide that it is just and equitable to require the respondent to pay the complainant compensation of €1000.

CA-00057465-007- Public Holidays-

I find this complaint not well founded.

CA-00057465-010- Rest Breaks-

I find that this complaint is well founded. I decide it is just and equitable to require the respondent to pay the complainant compensation of €300.

CA-00057465-011- Weekly Working Hours-

 I find the complaint well founded. I decide it just and equitable to require the respondent to pay the complainant compensation of €500.

CA-00057465-014- Minimum Notice & Terms of Employment Act 1973-

I find this complaint not well founded.

Employment Equality Act, National Minimum Wage Act, Payment of Wages Act, Organisation of Working Time Act, Minimum Notice and Terms of Employment Act.