Complainant

Respondent

Anonymised Parties

A Waiter

Casalattico Limited

Representatives

 Kevin P. Madden & Associates Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059137-002

29/09/2023

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

CA-00059137-003

29/09/2023

The Complainant, a minor, appeared with his father.

Mr. Madden who processes payroll on behalf of the Respondent and swore an Affirmation. There was no appearance from any director or employee of the Respondent. An outline submission and payslips were referred to by Mr. Madden at the hearing.

CA-00059137-002

It was the Complainant’s case that at the time of employment as a waiter with the Respondent from 2 January 2023 to 25 August 2023, he was paid €7.91 per hour as she was 17 years old. He worked on average 15 hours per week. 

He was not paid anything additional for the public holidays he worked.

The Complainant he said he worked 5 hours without a break on St Patricks Day 2023.

While he did sign a contract of employment he was not provided with a copy, nor did he have an opportunity to take it home and read it before signing.

On each Sunday he worked he was asked to sign his payslip but was not provided with a copy until he raised it on several occasions with the Respondent. Eventually he was provided with a copy from July 2023 onwards.

CA-00059137-003

It was the Complainant’s case that Sunday was his regular working day but did not receive anything additional. He again referred to the lack of contract and payslip, so he was unaware of what he was being paid and why.

It was his evidence that he was paid an additional €1 per hour in his current employment for working on a Sunday.

CA-00059137-002

It was the Respondent’s evidence that the Complainant did not get paid any thing extra for working Public Holidays. It was accepted that St Patrick’s Day 2023 was not paid to the Complainant and assurances that it would be paid today were made.

CA-00059137-003

It was the Respondent evidence that the Complainant was paid 10c per hour extra on a Sunday from 18 May 2023. It was noted on the payslip presented as “overtime”. No contract of employment was provided.

The Respondent’s representative if he had any object to the Respondent being named in the decision. He had no objective.

It was flagged to the Respondent that the evidence of Mr Madden would be limited to only what he had first hand knowledge of. Therefore, I am limited to considering his direct evidence only.

The absence of the contract of employment is a further evidential difficulty for the Respondent.

CA-00059137-002

Section 21 of the Organisation Working Time Act 1997 provides

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.”

It was accepted that the Complainant was due payment for St Patrick’s Day 2023 in which he worked 5 hours. There was no evidence from the Respondent that the Complainant was provided with a paid day off or additional day’s pay for the 5 public holidays he worked.

Consequently, I accept the evidence of the Complainant.

CA-00059137-003

Section 14 of the Organisation Working Time Act 1997 provides:

“Sunday work: supplemental provisions.

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work 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.”

There was no dispute the Complainant worked on Sundays. There was no contract provided therefore it is unclear what, if any, provision was made for Sunday work by the Respondent. Mr Madden’s evidence that the Complainant was paid an additional 10c per hour on a Sunday and this was noted as “overtime” on the payslip simply does not add up. The Complainant said he worked 4.5-5 hours on a Sunday. He was paid weekly. Therefore, the additional sum for Sunday working should amount to between 45c to 50c extra according to the Respondent’s evidence. However, taking the payslip of 10 August 2023 the Complainant was paid €39.33 for “overtime” and same amount on the payslip dated 15 June 2023.

Consequently there is no evidence before me that the Complainant was paid an additional amount for working on Sundays.

Redress under the Organisation of Working time Act 1997 provides:-

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

CA-00059137-002

The Complainant is well founded.

In light of the Respondent’s failure to provide a paid day off on that day, a paid day off within a month of that day, an additional day of annual leave or an additional day’s pay, I am awarding the Complainant compensation of €500 as being just and equitable where he was not paid either for his days work nearly 12 months ago on St Patrick’s Day 2023.

For the avoidance of doubt, the award of €500 is in addition to the 5 hours pay the Complainant is owed and Respondent has accepted it did not pay for St Patrick’s Day 2023.

CA-00059137-003

The Complainant is well founded.

In the circumstances where there is no clear evidence of payment before me, I am awarding the Complainant the sum of €120 as being just and equitable resulting from the Respondent’s breach of the Act.

Anonymising the parties

I have decided to anonymise the Complainant as he is a minor but not the Respondent has there was no objection to it being named.

Organisation of Working Time Act- Sunday pay- Public Holidays- Minor