ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00045353

Parties:

	Complainant	Respondent
Parties	Kian Gregory	Gemstroke Limited t/a The Parkview Hotel

Representatives

Self-represented

Complaints:

Act	Complaints 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-00056094-001	16/04/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994	CA-00056094-002	16/04/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997	CA-00056094-004	16/04/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991	CA-00056094-005	16/04/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997	CA-00056094-006	16/04/2023

Date of Adjudication Hearing: 12/09/2023 &04/12/2023

Workplace Relations Commission Adjudication Officer: Kara Turner

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.

Remote hearings were arranged in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020.

Mr Kian Gregory (the “complainant”) and Mr Ciaran O’Flynn (operations director) and Ms Sarah Marsh (financial controller) on behalf of Gemstroke Limited (the “respondent”) attended the hearing on 12 September 2023. The hearing was adjourned to facilitate the attendance of the respondent’s general manager, who was unavailable to attend the hearing at short notice. I arranged for the hearing to be rescheduled taking account of the complainant’s work commitments. The complainant did not attend the rescheduled hearing on 4 December 2023.

Background:

The complainant was employed as a chef de partie with the respondent from August to November 2022.

The complaints referred related to a statement in writing of terms of employment, compensation for Sunday work, payment of wages and public holiday entitlements.

Summary of Complainant’s Case:

The complainant gave sworn evidence on the first hearing date, 12 September 2023.

The complainant submitted documentation in relation to his case on 30 November 2023.

The complainant did not join the remote hearing at the scheduled time on the second hearing date, 4 December 2023.

The complainant did not provide evidence of exceptional circumstances and substantial reasons for his non-attendance at the remote hearing on 4 December 2023.

Summary of Respondent’s Case:

The respondent disputed the complainant’s evidence. It submitted in advance of the first hearing date various documents referable to the complainant, including a copy of an employment contract and an employee handbook.

The operations director and financial controller did not have any dealings with the complainant during his employment. The respondent’s general manager dealt with the complainant in employment, including providing him with his contract of employment and the employee handbook. The general manager was unable to attend the hearing on 12 September 2023 at short notice.

The rescheduled hearing on 4 December 2023 was attended by the respondent’s general manager and operations director.

In circumstances where the complainant did not attend the rescheduled hearing, the respondent did not present evidence in relation to the complaints.

Findings and Conclusions:

It was clear from the respondent’s submissions and the complainant’s oral evidence that there were material facts in dispute between the parties and that the respondent’s general manager was a relevant witness for the respondent.

The respondent was unable to present its evidence on the first hearing date and I adjourned the hearing to facilitate the attendance of the respondent’s general manager. The respondent did not have an opportunity to test the complainant’s evidence on the first hearing date.

On the rescheduled hearing date of 4 December 2023, the respondent’s general manager and operations director joined the hearing at the scheduled time. When the complainant did not join the hearing, I requested the concierge of the remote hearing to telephone and email the complainant. These efforts to contact the complainant were unsuccessful. After allowing some time for any delay or difficulty on the part of the complainant, I concluded the hearing.

The complainant contacted the Commission by email after the hearing on 4 December 2023 apologizing for his non-attendance and referring to bad service due to bad weather the night before. The complainant was informed of the efforts made to contact him and how the hearing had concluded and advised that a decision would be made on the complaints based on his non-attendance unless evidence of exceptional circumstances and substantial reasons was provided for the non-attendance. There was no further engagement by the complainant with the Commission.

It was necessary for the complainant to attend the rescheduled hearing in pursuit of his complaints, which, as the complainant was aware, were contested by the respondent. By his non-attendance, I was unable to fulfil my statutory duty to inquire into the complaints and the respondent did not have the opportunity to test the complainant on his evidence, which it disputed.

The complainant did not apply to adjourn or postpone the second hearing date and did not engage with the Commission after the hearing in relation to his non-attendance.

In the circumstances, I must conclude that the complaints are 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-00056094-001