Complainant

Respondent

Parties

Gabriel Ion Tudorin

La Cosa Nostra Hospitality Ltd

Representatives

Self-represented

Alvin Galligan, Business Consultant

Act

Complaint Reference No.

Date of Receipt

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

CA-00058852-001

15/09/2023

The complainant is a barista and, in April 2023, he connected with Mr Twomey on Instagram.  Mr Twomey was setting up a café in Dublin city and he was looking for a manager.  In the documents he produced at the hearing, the complainant included a copy of a contract of employment dated April 26th 2023.  The contract states he agreed with Mr Twomey that he would be employed by him as a head barista, starting on May 15th 2023 on an annual salary of €35,000, rising to €40,000 after three months.

In his evidence at the hearing, the complainant said that the café didn’t open in May and he suggested to Mr Twomey that he would remain in his old job or that he would look for another job.  He said that Mr Twomey told him that he would pay him from May 15th.  On the basis of this undertaking, he said that he left his job on May 16th 2023 and he was available to work for the respondent from that date.

When the café didn’t open, the complainant said that he did some consultancy work, helping to set up the business by purchasing coffee and coffee machines, arranging discounts on products and recruiting staff, for which he said he was paid €600.

In the documents he submitted at the hearing, the complainant included a copy of a text message he sent to Mr Twomey on Friday, June 23rd, in which he asked him to “write a letter for me for Intreo” and to state that he will start work the following month.  He also included a copy of a letter from Mr Twomey on the same day.  At the hearing, Mr Twomey said that he wrote this letter for the complainant to bring to the Department of Social Protection so that he could claim unemployment benefit.  The letter states that the complainant will commence work on July 1st 2023.  Mr Twomey also stated,

“Gabriel was meant to commence with us much sooner but unfortunately fit out plans were delayed and his start date had to be pushed back.” 

On July 6th 2023, the complainant wrote to Mr Twomey and said, “Got 1100 from the dol I just need one week from u.”

The café opened around July 3rd 2023 and the complainant said that he worked for five days that week.  He said that his last day at work was August 6th 2023.

A document submitted in evidence by the complainant shows that his hours of work were not in accordance with the 40 hours a week stipulated in his contract of employment.  When the café opened, he was rostered for five days a week; however, in the last week of July and the first week of August, he was rostered for just one day each week.  On July 30th, he wrote to his employer about his wages for the last week of May and the month of June.  On August 2nd, he sent an email about the reduction in his hours, which he described as “highly distressing.”  Rather than a manager or a head barista, at the of July, he was identified on the roster as a “barista.”  The owner, Mr Twomey, replied on August 2nd and said that he passed the complainant’s emails to his solicitor.  He said that he was “attending to the payment of monies owed for your work and will forward payment shortly.”  In the same email, Mr Twomey informed the complainant that he was no longer required and that his last shift would be on August 4th.

In the documents he submitted at the hearing, the complainant provided copies of two payslips as follows:

July 3rd 2023:  Paid €673.76 gross, equivalent to one week’s pay based on €35,000 annual salary.

August 1st 2023:  Paid €1,597.90 gross for 95 hours of work and €168.20 for 10 hours of holiday pay.  

The complainant also provided evidence of a transfer to his bank account from his employer on July 21st 2023 of €250.

The complainant claims that he is entitled to be paid for the last week of May and for the month of June 2023.  He acknowledges that the café didn’t open until July 2023, but he claims that the owner agreed to pay him from the date of the commencement of his contract on May 15th 2023.

On September 1st, the complainant wrote to the owner of the café and demanded payment of €4,000 in unpaid wages and €515.76 in lieu of pay for holidays and for the public holiday on August 7th 2023.

The Relevant Law

This complaint has been submitted under the Payment of Wages Act 1991 (“the Act.”).  Section 1 of the Act provides a definition of wages:

[W]ages in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including -

(a)  any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment, or otherwise, and,

(b)  any sum payable to the employee upon the termination by the employer of his contract without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.

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.

From this, we understand that, where wages are properly payable, the failure of an employer to pay such wages is an illegal deduction.  The issue for consideration in respect of the complainant is, when he accepted a contract from the respondent commencing on May 16th 2023 and, when he didn’t start work until July 3rd 2023, was he entitled to wages, or, in accordance with s.5(6) above, were wages properly payable to him?

The Facts

From the evidence of both parties at the hearing of this complaint, the facts are as follows:

The complainant was offered a job as a head barista in a new café commencing on May 15th 2023 on an annual salary of €35,000, rising to €40,000 after three months.

The café didn’t open and, around the beginning of June, the complainant was paid €600 in cash.  He claims that his was for consultancy fees; however the owner of the café, Mr Twomey said that this was an advance on wages before the café opened in July.

Around the end of June, the complainant applied for unemployment benefit, and this was supported by a letter from the owner.  He received €1,092, equivalent to four weeks of job seeker’s benefit.

On July 3rd, the complainant was paid €673.76, equivalent to one week’s wages.  No hours of work are indicated on the payslip.

The café was open by Monday, July 3rd and, between then and the end of July, it appears that the complainant worked for 95 hours.  At the end of July, he was rostered for only one day a week.

For some reason that was not explained by either party at the hearing, on July 21st, the complainant received €250 in cash from the respondent, paid directly into his bank account.  There was no payslip associated with this payment.

On August 1st, the complainant was paid €1,597.90 for 95 hours of work and €168.20 for 10 hours of holiday pay.

The payslip dated August 1st shows that the complainant’s cumulative wages with the respondent was €2,439.86. 

Conclusions

Having examined the evidence, it is my view that the respondent’s payroll office converted the €600 paid to the complainant at the beginning of June 2023 into one week’s wages, which was officially notified on the payslip issued to the complainant on July 3rd 2023.  The gross pay was €673.76 and the net pay was €563.53.  I find that the €673.76 paid to the complainant through the payroll on July 3rd 2023 was wages for what he described as “consultancy work” in May 2023.

The complainant worked for the respondent for 95 hours in the month of July 2023.  For this, he was paid €1,597.90, which is consistent with an annual salary of €35,000. 

I have no explanation for the €250 paid to the complainant in cash on July 21st.

I am satisfied that the complainant was paid for all the hours that he worked for the respondent up to August 1st 2023.  The respondent provided no evidence that the complainant was paid for working on the last day for which he was rostered, August 4th 2023.

The complainant’s claim is that he was not paid for the last week of May and for the month of June, when he had a contract to work for the respondent, but no work was available.  When no work was available, the complainant did what most employees who have no work would do; he applied for social welfare.  His application was accepted and he received four weeks’ job seekers benefit.  He started working in the café at the beginning of July.  His application for job seeker’s benefit was consistent with a claim that he was unemployed.

By offering the complainant a contract commencing on May 16th 2023, when he had no work available from that date, the respondent was disorganised and treated the complainant with disrespect.  By entering into a formal written contract on April 24th 2023, to the effect that a job was available from May 15th, the respondent misled the complainant, with the result that he left his job and ended up with no income.  While this treatment was unfair and unreasonable, it was not unlawful.

I find that the complainant is not entitled to wages for the weeks when the café was not open.  I am satisfied also that he was paid for 10 hours’ holidays which accrued between July 3rd and August 4th 2023.

Having examined the evidence, I find that the complainant was not paid for working on August 4th 2023.  As his last day at work was Friday, August 4th, in accordance with s.23 (2) of the Organisation of Working Time Act 1997, he is also entitled to pay for the public holiday that fell on Monday, August 7th.

I decide that this complaint is partly well founded.  In accordance with section 6 of the Payment of Wages Act 1991 (as amended), I am required to direct the respondent to pay compensation as a net amount.  Estimating the deductions for PAYE, PRSI and USC, I decide that the respondent is to pay the complainant compensation of €300.  This is an estimate of the net value of one day’s pay for August 4th, and one day’s pay for August 7th, based on pay of time and a half for the public holiday. 

No work available, wages properly payable