Complainant

Respondent

Parties

Huseyin  Turkay

Pamukkale Trading Co Limited Anatolia Cafe And Restaurant

Complainant

Respondent

Anonymised Parties

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Representatives

Aoife Doonan BL instructed by A&L Goodbody LLP

 N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00054882-001

03/02/2023

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

CA-00054882-002

03/02/2023

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

CA-00054882-004

03/02/2023

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

CA-00054882-005

03/02/2023

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

CA-00054882-006

03/02/2023

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

CA-00054882-007

03/02/2023

The Complainant began his employment with the Respondent on 21 August 2021 as a chef. He made several complaints against the Respondent in relation to underpayment, excessive working time as well as a lack of breaks and rest periods.

CA-00054882-001

From 1 January 2022 to the 31 December 2022, the national minimum wage was €10.50 per hour. The Respondent was requested to provide a written statement of the average hourly rate of pay during The Complainant’s employment by letter dated 7 December 2022. The Complainant did not receive a response within the statutory period. The contractual pay reference period for The Complainant is a period of a week beginning on the Monday of each week. Pursuant to section 8(1)(a)(b) of the 2000 Act, the total number of working hours worked by The Complainant in the week starting 31st January was 65.5 hours. The total number of working hours worked by The Complainant in the starting 21st February was 82.5 hours. The Complainant was paid €494 and €491 for the work carried out during these weeks respectively. By calculating the average hourly rate of pay pursuant to section 20 of the 2000 Act, The Complainant was effectively paid €7.54 per hour and €5.95 per hour for the work carried out during the weeks beginning 31 January and 21 February respectively. The Complainant was therefore paid less than the minimum hourly rate during these pay reference periods, in contravention with the 2000 Act.

CA-00054882-002:

Under section 14(1) of the Organisation of Working Time Act 1997, as amended, the Complainant stated that he was  entitled to be compensated for being required to work on a Sunday by the following means, namely: (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or (b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or (c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or (d) by a combination of two or more of the means referred to in the preceding paragraphs.

The Complainant’s representative stated that his contract of employment did not provide for compensation for work on a Sunday nor did it set out the manner in which he was to be paid for being required to work on a Sunday. 46. During the cognisable period, The Complainant worked on Sunday, 27 February 2023 for a period of 14.5 hours. Contrary to section 14(1), The Complainant was not provided with compensation in any form for the work carried out by him on this Sunday.

CA-00054882-004

The Complainant was entitled under his contract to be paid a salary of €30,000 per annum or €576.92 per week for 39 hours per week. The Complainant’s hourly rate therefore can be calculated at €14.79 per hour. 28. The entirety of any period The Complainant spent working at Anatolia Café & Restaurant constitutes 'working time' for the purposes of calculating his pay. His pay for these hours is ‘properly payable’ for the purposes of section 5 of the Payment of Wages Act 1991. The Complainant worked between 12 to 15 hours each day worked during the cognisable period. The Complainant was on annual leave during the weeks starting the 7th February 2022 and the 14th February 2022 and was entitled to holiday pay at his base weekly salary rate. The Complainant worked 65.5 hours in the week starting 31st January. For the purpose of the cognisable period of this complaint, he worked 41.5 hours between 3rd to 5th February. He worked 82.5 hours in the week starting 21st February 2022.

Based on the contractual hourly rate of €14.79 per hour, The Complainant was entitled to be paid €3,342.77 gross for work carried out in February 2022.

Amount paid to date 31. The Complainant did not receive payslips for work carried out with the Respondent, apart from one payslip in November 2021. This payslip, at Tab 12, was provided to him to open a bank account and it contains a large amount of inaccurate information. 32. The Complainant was paid €1780.95 gross for work carried out in February 2022. The Complainant’s bank statement is at Tab 13 of the Booklet. Underpayment 33. The Complainant was therefore underpaid by €1561.82 gross for work carried out in February 2022.

Unlawful Deductions

The Complainant’s contract with the Respondent includes a general and broad deduction clause. The clause does not specify or particularise any proposed deductions that will be deducted from The Complainant’s wages. Despite this, the Respondent kept a record of debt that they allege The Complainant owed to them. The Complainant stated that when he asked for his wages to be properly paid, he was told that he must repay his debt first.

Contrary to section 4 of the 1991 Act, the Respondent did not provide The Complainant with a statement in writing specifying clearly the gross amount of the wages payable to him and the nature and amount of any deduction therefrom at the time of payment or at any time thereafter. The deductions made to The Complainant’s wages were contrary to section 5 of the 1991 Act, were not fair and reasonable and the particulars of the deductions went far beyond what is authorised by the Act or any relevant law.. Furthermore, the deductions included the expenses relating to The Complainant’s application for his employment permit, his recruitment and his travelling expenses in connection with taking up employment in the State. These deductions are expressly prohibited by section 12(6)(b) of the Employment Permits Act 2006 (as amended) as was also set out in The Complainant’s employment permit. Deductions were made to The Complainant’s wages during the cognisable period which caused his hourly rate to fall below the minimum hourly rate and for him to be grossly underpaid as a result. The Complainant was not provided with pay slips or any records of his payment during the cognisable period, therefore he is not aware of any alleged or particular reason for the deductions. However, it is submitted that the deductions were intended to cover his alleged debts. It is completely inappropriate in the circumstances that, having illegally withheld his properly payable wages, his employer then charged him for unlawful and undisclosed debts. This was not consistent with respect for his dignity. 42. In all the circumstances, the deductions that The Complainant’s employers made from his wages were unlawful.

CA-00054882-005:

Under section 11 of the Organisation of Working Time Act 1997, as amended, an employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer. Contrary to section 11, The Complainant received only 9-10.5 hours of rest between his working days in the cognisable period.

Under section 12 of the 1997 Act, an employee is entitled to a break of at least 15 minutes after working for a period of more than 4 hours and 30 minutes and a break of at least 30 minutes, which may include the break referred to previously, after working more than 6 hours. The Complainant worked between 12-15 hours every working day of the cognisable period. He was therefore entitled to minimum 60 minutes of break time during the working day. The Respondent did not record The Complainant’s break times nor provide him with any alleged copy of same. The Complainant stated that he was only able to take short breaks during the day that varied in length based on how busy the restaurant was, however never added up to or amounted to 60 minutes in total.

CA-00054882-006:

This complaint was withdrawn.

CA-00054882-007:

Under section 13 of the 1997 Act, an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours. The Complainant was regularly expected to work day after day without a break.

Under section 15 of the 1997 Act, an employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours calculated over a period of 4 months in this case. Ss.15(3) and (4) state that the days or months comprising a reference period shall be consecutive and shall not include any period of annual leave. Applying this statutory criterion to the case at hand, The Complainant worked an average of 79.25 hours per week over a period of 4 months ending on 28 February 2022.

Section 25 of the Organisation of Working Time Act, 1997 requires that an employer must retain records in relation to its employees. Contrary to Section 25, it was asserted that the Respondent did not keep accurate records of hours of work or rest for The Complainant. The Complainant gave evidence that he was not provided with time sheets, given an opportunity to clock in and out, and provide a record of his time or to view and confirm records of his hours of work or rest. In the absence of accurate records kept by his employer, the Complainant has attempted to estimate the hours he worked. The Complainant kept a record of his whereabouts, travel and work on Google Maps. He has provided specific hours that he was working with the Respondent with the assistance of his Google Maps logs.

CA-00054882-001:

The Respondent’s Director, Mr Sahan, stated that the Complainant through MRCI had requested a written statement of the average hourly pay rate for the complainants’ entire employment dated 07/12/2022. This request was made pursuant to Section 23 of the National Minimum Wage Act, 2000. As Mr Sahan was out of the country, he did not receive the initial letter and could not respond to the request of the MRCI representative. No follow-up communication was sent to the Respondent after the 4-week period had lapsed.

The Respondent also stated that the Complainant requested a written statement outside of the 12 months immediately preceding his request, contrary to Section 23(1) and asserted that the Complainant’s request dated was invalid because of the lack of specified pay reference periods. Specifically, it was asserted that based on Section 23(3) of the Act, the Complainant should have requested a written statement for a specific pay reference period within the cognisable period in accordance with Section 23(1). Instead, the request failed to identify the specific pay reference period(s). Despite referencing Section 23 of the National Minimum Wage Act, 2000, the complainant’s request was not in line with Subsection 1 & Subsection 3.

CA-00054882-002:

Mr Sahan acknowledged an error in payment for Sunday premium from the beginning of the Complainant’s employment to the end of December 2021. However, it was asserted that this error was rectified in the first week of January 2022. Specifically, the Complainant was informed of the error and was asked about his preferred payment arrangement. During our conversation, both parties discussed and agreed upon an additional payment of €0.50 per hour for Sunday work. Notably, the Complainant did not request compensation for the missing payment for the hours he worked in 2021. He added that it was perfectly fine and unnecessary to discuss it further because of a significant favour Mr Sahan had done for him. During the cognisable period, Mr Turkay worked on Sunday, February 27th,2022, for 9.5 hours. He was issued a payslip on Friday 4th March 2022, for his work on Saturday, February 26th,2022 and Sunday, February 27th, 2022. The payslip included payment for his breaks as well.

CA-00054882-004

Between May and August of 2021, before he arrived in the state, Mr Sahan stated that he provided the Complainant with €650 in financial support. After he arrived in the state, the Complainant continued seeking financial support, and Mr Sahan stated that he his best to help him. He stated that to date the Complainant still owed him € 996.83.

He further stated that, on January 24th, 2021, the Complainant offered to pay back the cost of his arrival in Ireland at the time of his job application. Three months later in April 2021, the Complainant reiterated his willingness to pay back the expenses of his arrival in Ireland to show his appreciation. Mr Sahan stated that he accepted the Complainant’s offer without realising that it was contrary to Section 12(6)(b) of the Employment Permits Act 2006.

He stated that the complainant paid him back willingly and asserted that he did not deduct any of this from his weekly wages. The complainant reimbursed me a total of €2659.49 for the expenses involved in obtaining his Employment Permit and Flight Ticket. This amount was paid to me by the end of first week of January 2021

During the cognisable period, on February 4th, 2022, Mr Sahan also alleged that the Complainant asked him for my financial assistance in purchasing his flight tickets to Turkey for his upcoming annual leave. The complainant expressed his intention to reimburse him for the expense at a future date. In response to this request, I proceeded to book the individual's flight ticket to Turkey on February 4th, 2022, for a total cost of €316.83 The complainant was on Annual Leave from 6 February 2022 to 20 February 2022. On his return from this annual leave, the complainant was paid in full without any deductions via bank transfer. Unfortunately, the Complainant did not return to his position after 27 February 2022 which made it impossible for him to recoup the cost of his flight ticket. As a result, he had to hold off on depositing his wages into his account. The net pay amount on Mr Huseyin Turkay’s final payslip was €306.20, which was not sufficient to cover the cost of his flight tickets for the annual leave.

CA-00054882-005:

The Respondent stated that every employee receives their daily rest period entitlements per the Act and highlighted that employees also receive free meals and drinks during their shifts. It was also stated that the Complainant is a smoker of cigarettes and took regular smoke breaks and meal/drink breaks during his employment.

CA-00054882-007:

Mr Sahan stated that with was only required to work 39 hours a week during this employment and that most of the time, he completed 39 hours in 5 days. He acknowledged that there were instances where he would have been asked to split his hours equally over a span of 6 days. However, he was not asked to work without any day off. During the cognisable period, the complainant was on Annual Leave from February 6th,2022 to February 21st, 2022. Mr Sahan stated that he began keeping timesheets from the first week of January 2022 onwards but that the Complainant did not sign them when they were left at the restaurant for his attention.

Preliminary Matter- Time Limits:

The complaint form was received by the Workplace Relations Commission on 3 February 2023. The Complainant’s representatives sought an extension on reasonable grounds, pursuant to section 41(8) of the Workplace Relations Act 2015, in relation to the 6-month period prior to the statutory 6-month period.

It was asserted that the Complainant arrived in Ireland in August 2021 and immediately began working for the Respondent upon whom he was dependent for work, food, transportation and accommodation. It was further stated that he speaks and understands English very poorly and had no knowledge of Irish employment law and his rights thereunder.

I note firstly however the fundamental principle that ignorance of one’s legal rights and responsibilities does not provide a justifiable excuse for a failure to bring a claim in time or to the appropriate body, as held by the High Court in Minister for Finance v CPSU and Ors, [2007] 18 ELR 36.

Although I recognise that the Complainant was undoubtedly vulnerable, given his poor English and that he was dependent on the Respondent for work, food, transportation and accommodation, I also note that he contacted the Department of Justice about his work situation in December 2021, when he was still in employment and more than 12 months before he referred his complaints to the WRC. While he had no response from the Department, I am at a loss to understand why he did not either send a follow up email to inquire why his initial inquiry did not elicit a response or establish if the email address that he initially used was the correct one.

In addition, I noted his direct evidence that he was aware of an entitlement to receive breaks as he stated that these were provided for in labour laws all over the world. I cannot therefore understand why, notwithstanding his limited English, he did not use any one of the many online translation facilities to establish how statutory complaints could be made in relation to his break entitlements in Ireland. Indeed, it was clear from his evidence that he was adept at using technology given that he used the timelines function available on google maps to record his working hours.

The Complainant also stated that work inspectors visited the Respondent’s premises in early 2022 while he was still employed there but that he made no attempt to interact with them. While I recognise that it may have been difficult for him to engage with these inspectors given his poor command of English, he nonetheless knew that a workplace inspection was taking place. In the same way I cannot understand why he did not seek to establish what his break entitlements were in Ireland, as outlined above, it is incomprehensible to me that his awareness of the workplace inspection did not cause him to make online inquiries both to establish who these inspectors worked for or how he could go about making a complaint to the appropriate body in relation to a breach of his workplace entitlements.

I also note that he sought the assistance of An Garda Siochána after his employment ended in February 2022 and was allegedly identified as a victim of human trafficking. Given that he had the wherewithal to attend the Gardai as soon as his employment ended and that he subsequently met with the Legal Aid Board at the end of March 2022, I am at a loss to understand why it took him a further six months to seek advice about his employment rights which he only did on 8 September when he contacted the Migrant Rights centre on food of advice from his solicitor at the end of August 2022.

I note that he received a reply from the Migrant Rights centre on 17 September 2022 and subsequently arranged a meeting with them wherein he was informed that they would complete and submit his WRC complaint form. The Complainant did not follow up with them until January 2023 at which stage, he learned that the complaint form had not been submitted. It is well established in case law however that the failure by a representative to submit complaints within the statutory timeframes does not constitute reasonable cause for the purposes of providing for an extension of time.

Although I also noted that the Complainant was treated for psychological distress as a result of having allegedly been trafficked, there was no evidence presented by a medical practitioner to explain why this distress meant that he could not present his complaints in the period between the end of March 2022, when the Legal Aid Board told him they would not be able to assist him with his employment rights complaint, and 8 September 2022 when he contacted Migrant Rights Centre Ireland.

Finally, given that the length of delay in the referral of these complaints is significantly more than a minimal one, being more than five months after the end of the six-month limitation period, I must have regard to the Labour Court decision in Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425 where it was stated that:  

“The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

Considering all of the foregoing points, I do not allow the Complainant’s application for an extension of time and therefore find that I do not have jurisdiction to hear these complaints because the Complainant’s employment ended on 28 February 2022 and his complaints were not referred to WRC until 3 February 2023, which is outside of the six-month time period set out in the legislation.

CA-00054882-001, CA-00054882-002, CA-00054882-004,  CA-00054882-005 and CA-00054882-007:

I find that I do not have jurisdiction to hear these complaints for the reasons set out above.

CA-00054882-006:

This complaint was withdrawn.