Complainant

Respondent

Anonymised Parties

Waitress

Restaurant

Representatives

Ms. Harriet Burgess BL, instructed by  McGuigan Solicitors

Ms. Cliona Boland BL, instructed by  Liam J. Sheridan & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00052477-001

30/08/2022

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

CA-00052477-002

30/08/2022

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

CA-00052477-003

30/08/2022

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

CA-00052477-004

30/08/2022

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

CA-00052477-005

30/08/2022

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

CA-00052477-006

30/08/2022

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

CA-00052477-007

30/08/2022

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

CA-00052477-008

30/08/2022

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

CA-00052477-009

30/08/2022

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

CA-00052477-010

30/08/2022

The Complainant commenced employment with the Respondent on 1st May 2020. The Complainant was a, full-time member of staff, with her rate of pay being the subject of the within proceedings. The Complainant’s employment terminated on 9th May 2022, with the nature of this termination again in dispute between the parties.

On 30th August 2022, the Complainant referred the present dispute to the Commission. Herein, she alleged that the Respondent had made numerous illegal deductions from her wages throughout her employment. In addition to the foregoing, they submitted that following the Complainant’s refusal in respect of an illegal request for payment in respect of a work permit application, that the Complainant was summarily dismissed. Finally, the Complainant made numerous allegations in respect of the Respondent’s failure to abide by the Organisation of Working Time Act.

A hearing in relation to this matter was initially convened for 12th June 2023, with the Complainant giving evidence in chief and commencing cross-examination on this date. As it became apparent that the matter would not finalise in that session, the matter was adjourned and listed for a further day of hearing on 13th February 2024, with the matter finalising in that session.

Both parties issued submissions in advance of the hearing. These submissions were expanded upon and contested by the opposing side in the course of the hearing. During the hearings, the Complainant gave evidence in support of her allegations, while the Company Director and a member of the kitchen staff gave evidence in defense. All evidence was given under oath or affirmation and was opened to extensive cross examination by the opposing side. Evidence was given with the assistance of a translator where required, who was herself sworn in.

In circumstances whereby parallel proceedings are in process regarding the present set of facts, I have exercised my discretion to anonymise the decision in its published form.

In evidence, the Complainant stated that she commenced employment with the Respondent in May 2020. Throughout her employment, the Complainant was engaged as a waitress. She stated that she never received a contract of employment at the commencement or any other stage of her employment. 

At the outset of her employment, it was agreed that the wage would be €576.92 per week. Notwithstanding the same, the Complainant was paid the sum of €523.00 directly into her account. In addition to the foregoing, the Complainant was obliged to make a payment of €193.00 in respect of “tax donations” leaving a final payment of €330.00 per week. These payments were made each week to a staff member within the Respondent organisation. While the Complainant believed the same to be unfair, she continued to make the same as she felt she was in vulnerable position.

The Complainant submitted that she would normally work for six days per week, from the opening of the restaurant to closing. She stated that during the period, she never received a Sunday premium, never had scheduled breaks, did not receive her full annual leave entitlement, was not compensated for public holidays and did not receive the appropriate weekly rest periods.

In December 2021, the Respondent made an application to renew the Complainant’s work permit. The Complainant made a payment of €1,500 cash in order to facilitate this renewal. While the Complainant again believed that this was incorrect, she agreed to the same as she did not wish for the same to be terminated.

While the Complainant was working with the Respondent she lived in a house owned by the Managing Director. In May of 2022, the Complainant complained to the Respondent regarding the staff quarters and the conduct of other members of staff living there. Following the Complainant making these complaints, the Respondent demanded that the Complainant must pay the sum of €7,500 to facilitate the renewal of her work permit. On 9th May 2022, the Complainant met with the Respondent and advised that she simply could not afford to make such a payment. During this conversation, without recourse to any form of procedure, the Respondent summarily terminated the Complainant’s employment. 

By submission, the Complainant’s representative stated that the Complainant had endured ongoing illegal deductions from her wages at the hands of the Respondent. She submitted that the Complainant was in a particularly vulnerable position in circumstances whereby the Respondent controlled the Complainant’s place of residence and visa applications. It was only when the Respondent sought to extort a considerable amount of money from the Complainant, that she attempted to stand up for herself. Once the Complainant did so, the Respondent immediately moved to summarily dismiss the Complainant without recourse to any form of procedure.

In answer to a question posed in cross examination, the Complainant accepted that she lived in a house owned by the Managing Director, and that as a consequence of the same she was obliged to pay rent. When the various time-sheets were opened to the Complainant she stated that she never had sight of the same. She further submitted that the same were incorrect as she often worked numerous days in a row while the Managing Director was on maternity leave. In answer to a question posed in cross examination, the Complainant accepted that she initially left her employment due to the behaviour of one of her housemates. She denied that she terminated her employment of these grounds but stated that the Respondent terminated her employment when she refused to pay the sum of €7,500 to renew her visa application.

From the outset, the Respondent denied the allegations raised by the Complainant.

In evidence, the Managing Director of the Respondent stated that shortly after opening her restaurant, she met with the Complainant regarding a potential employment. While the Complainant was resident on a temporary visa, it was agreed that the Respondent would assist with the preparation for a more permanent working visa. As the Complainant was not, at this time, resident in the area where the restaurant was based, it was agreed that she would rent a room in a house owned by the Managing Director and occupied by other staff members of the Respondent.

Regarding the Complainant’s working conditions, the Respondent opened numerous timesheets in evidence. In this regard, she stated that these timesheets were completed each week and issued to the relevant staff member for signature. She stated that these timesheets demonstrated that the Complainant worked from 4pm to the close of the restaurant. These timesheets outline the Complainant’s break entitlement, with the Complainant signing in receipt of each of the same each week.

The Complainant raised no issue regarding her working conditions until May of 2022. At this point, the Complainant issued a complaint regarding the personal hygiene of one of her housemates, a fellow employee of the Respondent. In this regard, the Complainant advised that she wished to take some time off to consider matters and was absent from the workplace for a number of days. On 9th May, she stated that she no longer wished to be employed by the Respondent and duly terminated her employment.

In evidence the Managing Director of the Respondent absolutely denied that she subjected the Complainant to illegal deductions from her wages at any point. She stated that a payment was collected from the Complainant each week in respect of her rent, and that this had been agreed at the outset of employment. It was absolutely denied that she or anyone else connected with the Respondent sought a payment from the Complainant in respect of the application for renewal of her visa. She further denied that any other deductions, illegal or otherwise were taken from the Complainant’s wages. In this respect, numerous bank statements were opened, demonstrating the transfer of a weekly wage to the Complainant on a consistent basis. The Respondent further denied that the Complainant was subject to any deductions in respect of “tax donations”, with the Respondent opening payslips demonstrating that all relevant deductions were taken at source, in the normal fashion.

Regarding the alleged unfair dismissal, the Managing Director denied dismissing the Complainant during the conversation of 9th May. She stated that some issues had developed regarding the Complainant’s living arrangements, and that she wished to move to a new location. While this was unfortunate, the Managing Director accepted that this was the Complainant’s decision and processed the termination of her employment.

In answer to a question posed in cross-examination, the Managing Director accepted that no formal tenancy agreement had been drawn up between the parties. She further accepted that no rent book was retained regarding the payments made by the Complainant. Regarding the timesheets submitted into evidence, the witness stated that these were created on a contemporary basis, and in this regard, she absolutely denied that she drafted the same as a form of defence for the present proceedings.  

In evidence, a member of kitchen staff gave evidence regarding the method by which rent was paid. In this regard, he stated that he was charged with taking rent collections from each of the staff members that lived in the Managing Director’s house each week. He submitted that he would take these rent payments as cash and proceed to physically attend to lodge the same into a bank account. In answer to a question, the witness accepted that he never retained any form of record or documentation regarding the amount of funds that were collected or lodged in this manner.

By submission, the Respondent’s representative stated that the Complainant elected to leave the Respondent employment of her own free will following a dispute regarding her living arrangements. While the Respondent allowed the Complainant a period of time to consider this position, she stood by her decision to leave on this basis. Having regard to the foregoing, it was submitted that the Complainant’s application under the Unfair Dismissals Act should fail. In addition to the foregoing she submitted that the timesheets entered into evidence demonstrated that the Respondent largely abided by the requirements of the Organisation of Working Time Act, and that no actionable breaches occurred as a consequence of the same.

In the present case, a number of significant conflicts of evidence arise in relation to many aspects of the Complainant’s employment. However, notwithstanding the same, it is accepted that at or near the outset of the Complainant’s employment, she entered into an arrangement with the Respondent regarding her living arrangements. In this respect, it is common case that the Managing Director of the Respondent agreed to provide housing for the Complainant on foot of some form of payment. While the Complainant submitted that this payment was rolled into her overall wages, and consequently the same should not have been subject to any form of deduction, the Respondent has submitted that the payment in question was collected each week and logged into a back account created for this purpose.

A number of issues arise with this arrangement. Firstly, in situations whereby an employee is entering into a tenancy agreement in conjunction with an employment contract, it would be reasonable to assume the Respondent would be at pains to ensure that some form of delineation is drawn between payments received as rent, due to the managing director, and deductions from wages. Notwithstanding the same, it is common case that the Complainant entered into no form of formal tenancy agreement with the Respondent, that no electronic record of transfers from the Complainant were retained and no rent book or written record of any description was maintained by the Managing Director. In such circumstances the Respondent created a situation whereby the Complainant was unsure what payments constituted deduction from her wages and what constituted a payment for rent.

Notwithstanding the foregoing, the Respondent provided evidence of the member of staff charged with collecting the rent payments and lodging the same into a bank account created for this purpose. In addition to the same, it stands to reason that the Complainant would be obliged to pay some form of rent in respect of her place of residence. As part of the evidence opened in the course of the hearing, the Respondent opened various bank statements demonstrating that a sum of €526.50 was routinely transferred to the Complainant’s bank account each week. Having regard to the foregoing, it is apparent that the Complainant received a set weekly wage. Thereafter, the while the Complainant was obliged to pay a portion of the same back to the Managing Director of the Respondent, it is apparent that this related to a payment in respect of the Complainant’s lodgings. While such a situation is clearly inappropriate, the fact remains that the Complainant was paid a consistent amount of wages, on a consistent basis throughout her employment. Any payments that occurred thereafter relate to an arrangement between the Complainant and the Managing Director, and while clearly inappropriate in an employment context, do not constitute deductions for the purposes of the Payment of Wages Act. Regarding the allegations in respect of alleged “tax donations” it is noted that the Respondent exhibited payslips demonstrating that all relevant deductions had been taken at source. In this respect it is further noted these allegations regarding the alleged extortion of funds from the Complainant are subject to a separate, civil complaint.

Thereafter, perhaps unsurprisingly, issues arose in the accommodation shared between the Complainant and other staff members. In particular, the Complainant gave evidence regarding her dissatisfaction with a staff member that had recently joined the house sharing arrangement. In evidence, the Complainant stated that she spoke to this person regarding these issues, however the issues continued unabated. Her evidence in this regard was that she could withstand this domestic situation no longer and was obliged to leave the house share to spend some time with her partner, who lived some distance away. In May of 2022, the Complainant spoke with the Managing Director advising that she wished to take a week of sick leave. On return from this period of leave the parties had a meeting, the subject of which consists of a fundamental conflict of evidence. By the Complainant’s account, the during this meeting the Managing Director sought of payment of €7,500 to facilitate the Complainant’s visa renewal. When the Complainant refused to pay the same, she stated that the Managing Director summarily dismissed her. On the other hand, the evidence of the Managing Director was that the Complainant came back following her period leave and advised that she wished to resign her employment. In her evidence the Managing Director stated that she accepted that this was the Complainant’s decision, and she processed the termination of employment thereafter. Having regard to the foregoing, no further witness evidence was provided in relation to this conversation. In addition to the same, again unsurprisingly, neither party could point to any documentary evidence that might support their respective version of events.

In this regard while the parties are at complete odds regarding the subject of the meeting of 9th May 2022, it is common case that the Complainant expressed dissatisfaction with an aspect of her employment relationship. Thereafter, taking the Respondent’s case at its height, they took no material steps to rectify this issue, instead electing to simply process the termination of the Complainant’s employment without calling or suggesting any form of formal meeting in respect to the issues raised by the Complainant.

In the matter of Millett -v- Sherkin [2004] 15 E.L.R. 319, the Labour Court held that,

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation.”

Having regard to the foregoing, the position of the Complainant was that she did not resign at all, but was dismissed by the Respondent. In denying this allegation, the Respondent submitted that the Complainant gave verbal notice of her resignation during the meeting of 9th May. Again, it is apparent that the parties are completely at odds with each other regarding the nature of the termination of the Complainant’s contract of employment.

Notwithstanding the foregoing, in circumstances whereby an employee gives notice of resignation, it is incumbent on the Respondent to secure written confirmation of the same, primarily to avoid situations such as the current dispute arising. In addition to the foregoing, in circumstances whereby an employee is dissatisfied with some aspect of their employment, and in this regard it is noted that there is a fundamental conflict as to cause of the dissatisfaction, an employer has a duty to formally offer the employee in question access to their internal grievance procedures prior to simply accepting their resignation. In circumstances whereby the Respondent didn’t take any of the aforementioned steps, they have created a situation whereby a former employee has raised extremely serious allegations against them without the benefit of any internal procedure, and contemporaneous evidence, by which they may defend themselves. Having regard to the foregoing, and particularly the Respondent’s procedural failures, I find that I prefer the evidence of the Complainant regarding the fact of her termination. While it is noted that no corroborating evidence exists regarding the alleged attempt to extort the Complainant, the Respondent’s failure to secure the Complainant’s alleged notice of termination in writing, to formally request that the Complainant reconsider her purported resignation or to offer any form of formal process regarding the difficulties experienced by the Complainant constitute significant procedural omissions on their part.  

Having regard to the foregoing, in circumstances whereby I have found that the Complainant was dismissed during the meeting of 9th May 2022, and that no process was adopted in relation to the same, I find that the Complainant was unfairly dismissed in accordance with the Act. As a consequence of the foregoing, I find that the complaint under the Unfair Dismissals Act is well-founded.

CA-00052477-001 – Complaint under the Unfair Dismissals Acts

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that her application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate her losses following her dismissal. In evidence, the Complainant stated that she found alternative employment some 16 weeks following her dismissal. While the Complainant submitted that she had a reduction in wages in her new employment, she conceded that part of this reduction could be partially explained by a reduction in hours.

Having regard to the foregoing, I award the Complainant the sum of €8,000 in compensation.

CA-00052477-002 – Complaint under the Minimum Notice and Terms of Employment Act

In circumstances whereby I have found that the Complainant was dismissed without notice, I find that this complaint is well-founded.

Having regard to the duration of the Complainant’s employment, I find that she is entitled to a payment of two weeks’ notice, to the value of €1,153.84.

CA-00052477-003 – Complaint under the Payment of Wages Act

Regarding this complaint, in circumstances whereby the Complainant received her wages each week, I find that this complaint is not well-founded. While it is apparent that the Complainant issued a payment to the Managing Director each week, the evidence indicates that the same occurred as a result of a private arrangement between the parties and does not constitute a deduction from the Complainant’s wages.

CA-00052477-004 – Complaint under the Organisation of Working Time Act

Regarding this complaint, the Complainant alleged that she did not receive adequate payment for Sunday working. In denying this complaint, the Respondent submitted that the Complainant received a composite rate, including a premium for Sunday work.

During the hearing, the Respondent opened a document purporting to be a contract of employment. While the Complainant accepted that she signed the back page of this document, she stated that she was presented with a signatory sheet only and never had sight of the document itself. Notwithstanding the same, it is apparent that this document is silent as to any Sunday premium or composite rate of pay to include the same. Having regard to the foregoing, I accept the Complainant’s submission in this regard, and the complaint is deemed well-founded.

Having regard to the totality of evidence presented, I award the Complainant the sum of €500 in compensation for this breach of the Act.

CA-00052477-005 – Complaint under the Organisation of Working Time Act

Regarding this complaint, the Complainant alleged that she did not avail of any holiday entitlement throughout her employment, and was not compensated for the same on the termination of her employment.

In denying this allegation, the Respondent opened various time sheets purportedly signed by the Complainant, demonstrating that she took annual leave for a week in November 2021, a week in January 2022 and a week in March 2022.

In evidence, the Complainant denied having sight of these documents, and denied that she signed the same on a weekly basis. In addition to the foregoing, while the Complainant accepted that she availed of some annual leave, she denied that she was granted her full entitlement or that she took the volume of days alleged by the Respondent.

Regarding the timesheets submitted by the Respondent, it is noted that prior versions of the same were issued to the Commissions’ inspection services prior to the Complainant’s engagement. This being the case, it is apparent that independent evidence exists corroborating the Respondent’s position regarding the maintenance of this system of recording hours. In circumstances whereby it had been established that the Respondent has confirmed that this system of recording hours existed when the Complainant was hired, it stands to reason that the same was maintained throughout her employment.

Notwithstanding the same, it is apparent that these records indicate that the Complainant took fifteen days of annual leave during the final leave year of her employment. While it is accepted that the termination of the Complainant’s employment occurred within a new leave year for the purposes of the present Act, and that the Complainant was absent for a period of time prior to her termination, no records of any description have been produced to demonstrate that this absence was deemed annual leave.

Having regard to the foregoing, I find in favour of the Complainant, and the complaint is deemed to be well-founded. Regarding redress, I find that the Complainant should receive payment of €576.92 in respect of the untaken week of annual leave and a further €500 in compensation.  

CA-00052477-006  – Complaint under the Organisation of Working Time Act

Regarding this complaint, the Complainant alleged that she did not receive an adequate public holiday entitlement. In evidence, the Complainant accepted that when she worked on a public holiday, she would receive an additional day off during the week. Having regard to the foregoing, I find that this complaint is not well-founded.

CA-00052477-007 – Complaint under the Organisation of Working Time Act

Regarding this complaint, the Complainant alleged that she did not receive adequate breaks. Having regard to the evidence presented during the hearing, it is apparent that the Complainant would be provided with a staff meal at the outset of her shift. The Complainant would then work 4pm, to the end of her shift, which would depend on the volume of trade of the restaurant. While the Respondent had submitted that the restaurant is frequently quiet, particularly during the early hours of trade, it is common case that throughout the Complainant’s shift, she would not have break where she would not be potentially obliged to serve a customer or take a telephone call.

Having regard to the foregoing. I find that the complaint is well-founded. Regarding redress, I award the Complainant the sum of €500 in compensation.

CA-00052477-009 – Complaint under the Organisation of Working Time Act

This complaint is a duplicate of that outlined in CA-00052477-005, listed above. In such circumstances, I find that the complaint is not well-founded.

CA-00052477-010 – Complaint under the Organisation of Working Time Act

Regarding this complaint, the Complainant alleged that she worked in excess of weekly hours permitted by the Organisation of Working Time Act.

In this respect, the Complainant submitted that towards the end of her employment, the Complainant was obliged to work in excess of 50 hours per week on a regular basis. She submitted that this occurred during the period the Managing Director of the Respondent was on maternity leave. In denying this allegation, the Respondent submitted that the Complainant would normally work for five days per week with two days off. In circumstances whereby the Complainant’s average shift was seven to eight hours long, they submitted that the Complainant worked well within the weekly hours permitted by the impleaded Act.

Regarding the foregoing, it is apparent that significant conflict of evidence has arisen regarding the amount of hours worked by the Complainant towards the end of her employment. In this regard, the Respondent bears the initial burden of proof in respect of the allegations raised by the Complainant. As previously outlined, the Respondent submitted numerous timesheets in evidence purporting to outline the amount of hours worked by the Complainant. While these timesheets sporadically cover the Complainant’s employment from its outset, they do not cover the entirety of the cognisable period of the purposes of the impleaded Act. In this respect, these timesheets would constitute the primary evidence by which the Respondent would contest the Complainant’s allegations.

Having regard to the foregoing, and in particular the Respondent’s failure to produce the relevant working time records, I find in favour of the Complainant. Regarding redress, I award the Complainant the sum of €500 in compensation for the breach of the Act.

CA-00052477-008 – Complaint under the Organisation of Working Time Act

Like the Complainant above, the Complainant has alleged that she frequently worked seven days per week within the cognisable period, and as a consequence of the same, did not receive her weekly rest period. In circumstances whereby the Respondent did not produce the relevant time sheets to disprove the Complainant’s allegations, I prefer her evidence in this regard and her complaint is well-founded.

Regarding redress, I award the Complainant the sum of €500 in compensation the breach of the Act.

Dismissal, Deduction, Working Time, Time Sheets