Worker

Employer

Anonymised Parties

Chef     

Restaurant

Representatives

Siptu Trade Union

 Managing Director and representatives of the employer

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000949

20/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000950

20/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000951

20/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000952

20/12/2022

The worker has presented a dispute to the WRC that the employer has failed to pay him for public holidays, has failed to pay him for the number of hours worked by him, and did not provide him with a contract of employment.

 The worker was employed as chef in the employer’s restaurant from 3/12/2020 until 25 /9/2022.

He earns €14.80 an hour.

He referred the dispute to the WRC on 20/12/2022.

Concerning the employer’s late objection to the hearing proceeding due to what they say was the use of the incorrect number of their premises in the business park, the union representative states that there were only about 7 units in the complex and there was only one with the respondent’s name. The WRC also emailed the employer.

The union also emailed the complaint form and hearing notice to the employer.

 The worker’s representative submits that as section 13 of the Industrial Relations Act, 1969, as amended, is not included in Part 1 and 2 of the Schedule of Acts governed by the time limits set out in section 41 of the Workplace Relations Act , 2015, they therefore do not apply to the instant complaints.

The worker was employed as chef in the employer’s restaurant from 3/12/20 until 25 /9/2022.

The employer refused to engage with the worker’s union to attempt a resolution.

IR - SC - 00000949.

The worker is claiming payment for 14 public holidays for which he was not paid during the period 19/10/20 until 25/9/22.

He did ask his manager about payment for these public holidays who referred him to the Managing Director; he failed to respond to the worker’s request for payment for the public holidays.

IR - SC – 00000950.

The worker states that he was not paid for the extra 547 hours which he worked over a period commencing on the 16/10/2021 and up to week ending 15 August 2022.

He frequently worked shifts from 11 am to 11pm for 6 days, sometimes for 5 days.

The worker confirmed that they did not report these infringements to NERA.

Concerning his clocking in history, he states that he did clock in until week 42 of 2021, but thereafter the respondent told him to not to clock in as it was not necessary for permanent staff.

He wrote to the Managing Director on 16/9/22 seeking payment for extra hours worked but received no payment from the respondent. 

IR - SC – 00000951

The worker withdrew this complaint.

IR - SC – 00000952.

The employer failed to provide the worker with a contract of employment.

The employer wished to record his protest at the hearing into the listed complaints proceedingas the complaint did not issue to the correct number in the business park and he was unable to notify the WRC of his objection to the proposed hearing into this dispute within the required 21 days, but did notify them thereafter.

IR - SC – 00000949

The employer maintains that the worker was paid all his statutory entitlements.

However, the worker should only be able to go back 6 months from the date on which he lodged the complaint, that being the 20/12 2022. The employer states that the only public holiday which fell during the period 23/6/22- 22/12/22, and to which the worker was entitled, was the 1/8/22 as the worker had resigned on 25/9/22. He was given a day in lieu of this August public holiday.

IR - SC – 00000950

The employer states that the worker was paid for all hours worked. The worker’s unreliability is manifest in the differing number of hours (54 and 59 hours) which he states are owed to him in two different documents.

He provided the worker with a contract for 39 hours a week and an annual salary of €30,000 on 12/12/2020.

From 8/12/20 to March 2021 he only worked about 10-15 hours per week.

He was on unpaid leave from 21/5/22-- 19/6 /2022, weeks for which he is claiming 15 extra hours per week, or 60  hours in total.

He was scheduled to work from 11am on 21 July but messages submitted by employer show that he only came in after 4pm, so in that week commencing the 18 /7/22, week 29, for which he is claiming an extra 20 hours, he actually only worked 34 hours.

In the week of 1/8/22- 7/8/22, week 32, for which he is claiming that he worked an extra 20 hours unpaid, he only worked 33 hours. Most of the staff were hit by Covid that week and he asked to worker to take Thursday off, but he refused and took Wednesday instead.

The complainant failed to clock in and out for last six months of his employment.

IR - SC – 00000952

The employer provided the worker with a contract setting out his terms and conditions of employment on 12/12/20.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The employer asked me to record his protest at the hearing proceeding.

It is accepted that the employer did not comply with the 21-day period within which an objection to the hearing proceeding must be submitted.

It is not contested that he received email notification of the dispute and the hearing, nor did he contest receipt of same from the union representative.

The employer participated in the hearing and asked me to consider the written submission delivered on his behalf.

I proceeded with the hearing into this dispute.

IR - SC - 00000949.

The worker is claiming payment for 14 public holidays for which he states he was not paid during the period 19/10/20 until 25/9/ 22. This is disputed.

Firstly, I accept his employment commenced on the 3/12/2020.

The employer asks that I adhere to the requirements of the Workplace Relations Act 2015 and confine my examination to any claimed unpaid public holidays to the 6-month period preceding the date of submission of the complaint which was the 20/12/2022. Three Public Holidays fell during that period, whereas eight public holidays fell during the year January – September 2022. As this is a complaint under the Industrial Relations Act, 1969, I am not confined to the provisions of the Workplace Relations Act,2015 governing the time limits which apply to complaints alleging a breach of statutory rights.

I note from the payslips submitted at the hearing that the complaint was paid for leave to the tune of 5.5 weeks using the calendar year, or 4.5 weeks if using the statutory leave year. In either case, given that he had a pro-rata entitlement to leave, he was overpaid to the amount of 12 days  if using the calendar year January – December 2022 and was overpaid  to the amount of 7 days if using the statutory year  1/4/2022- 31 /3 /2023.

I recommend that the complainant accept that this cancels out any debt which may be owed in respect of public holidays.

I make no recommendation for payment in respect of allegedly unpaid public holidays

IR - SC – 00000950

The worker asks to be compensated for

the extra 15 hours which he states he worked from week 42 ,9/10/21 to 7 /7/22; 

the extra 20 hours he claims to have worked a week from 15/7/2022 to 15/8/22;

 and for an extra 15 hours he claimed to have worked in the week commencing 22 August 2022.

From 20/2/22, he was on a week’s paid leave so couldn’t have worked the extra 15 hours.

From 1/5/22-21/5/22 he was on paid leave, so again, he could not have worked the extra 45 hours claimed in respect of this period.

He was on unpaid leave from 21/5/22-- 19/6 /2022, weeks for which he is claiming 15 extra hours per week, or 60 hours in total. This claim is obviously baseless.

The rosters for these weeks show him assigned to work 39 hours a week, contrary to his assertion that he was frequently rostered to work 11-hour shifts on a five-day week basis. There is no evidence to support this latter assertion.

In the week commencing the 8/8/22 he states that he worked an extra 15 hours, yet he refused to use the clock in system that week.

He states that he worked in excess of 15 hours during the week commencing 15/8/22, week 33, but his clock in records to which he finally subscribed upon the instruction of management show that he worked 37 hours though he was paid for 39 hours.

 I have found the worker’s submission to be less than convincing and to be full of ‘holes’. The employer’s submission is more credible.

I accept that restaurants throw up unrostered or unscheduled demands for staff from time to time.

 To finally dispose of this matter, I recommend that the employer pay the worker 2 days’ pay for any extra hours worked, a sum  which amounts to €230.80.

IR - SC – 00000952.

There is no merit to this complaint as the employer furnished the contract signed by the worker on the12/12/20.

IR dispute.