Complainant

Respondent

Parties

Erika Power Murray

CH & Apache Pizza Limited

Representatives

Joe Murray

Peter Dunlea of Peninsula

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-00055592-001

17/03/2023

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

CA-00055592-002

17/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00055592-003

17/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00055592-004

31/05/2023

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

CA-00055592-005

31/05/2023

The Complainant worked for the Respondent from August 2022 until March 2023.

After she left the company, she referred the following complaints to the WRC.

CA-00055592-001 alleging she was not paid compensation for working Sunday.

CA-00055592-002 alleging that she had not received her public holiday entitlement.

CA-00055592-003 alleging that she did not receive sick pay on the 17th of January 2023.

In May 2023 she submitted two further complaints.

CA-00055592-004 alleging that she did not receive a statement of particulars as required by the Terms of Employment (information) Act.

CA-00055592-005 alleging that she did not receive breaks.

The Complainant provided evidence under affirmation.

She never received compensation for working Sundays and when she worked public holidays she was just paid for that date. She did not receive extra pay or leave. She wasn’t paid when she had an absence due to sick leave.

She did not receive any contract from the Respondent until November 2022 as she was required to produce one for a car loan.

Her normal shift was working 12 to 10pm. Until 5pm she would be the only person in the store. There was no canteen. While she was allowed go out on into the seating area and eat food she was had to take the phone with her and did not get 30 minute uninterrupted breaks where she could leave the premises.

Mr Dunlea made oral and written submissions on behalf of the Respondent.

They accepted that they had not paid Sunday premiums and proper public holiday entitlements apologised for this oversight.

They have done a thorough review of their records and conclude that if they had paid the Complainant a 33% premium she would have been entitled to a payment of €1,081.14.

The Complainant was not paid for the following public holidays October 31st 2022, December 26th 2022,  January 1st 2023 and February 6th 2023. They calculate the amount owing to the Complainant for these days  €361.60.

The Complainant did not receive sick pay for the 17th of January but she had not submitted a sick cert. As a goodwill gesture the Respondent has offered to pay €90.40 as uncertified sick pay.

The Respondent’s owner, Ms Aurelia Cherdevara, gave evidence.

She had offered a statement of employment repeatedly but refused it. It was available and signed by Ms Cherdevara and the Complainant knew she had access to it.

She is sure that the Complainant did receive breaks. She brough meals from home and was given time to eat them throughout the day.

CA-00055592-001 Sunday Premium

Both parties accept that the Complainant was not paid Sunday premium and the Respondent has provided a detailed breakdown of which Sunday’s the Complainant worked. While the Organisation of Working Time Act provides for a Sunday premium it does not set out at what rate that should be.

Section 27 c) provides me with jurisdiction to 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.

The Respondent has accepted the breach and provided a breakdown of the estimated cost of the breach to the Complainant in terms of wages. The Respondent has calculated that a 33% rate would have been worth €1,081.14 to the Complainant.

I am of the view that I should award more than this amount to take into account that the Complainant’s statutory rights were breached. I am also of the view that the Complainant did not work for the Respondent for a very long time and that this award should not be punitive.

In the circumstances I believe an award of €1500 is appropriate.

CA-00055592-002 – Public Holidays

Both parties agree that the Complainant was not paid for four public holidays.

Section 27 c) provides me with jurisdiction to 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.

The Respondent has accepted the breach and provided a breakdown of the estimated cost of the breach to the Complainant in terms of wages as €361.60.

I am of the view that I should award more than this amount to take into account that the Complainant’s statutory rights were breached. In comparison to the Sunday premium claim I am of the view that this is a more serious breach in that the rules regarding public holidays are well known and the additional rates of pay are actually specified in the legislation, unlike Sunday premium. 

In the circumstances I believe an award of €1000 is appropriate.

CA-00055592-003 – Sick Leave

Section 5 subsection (9) of the Sick Leave Act 2022 states that An employee shall, in respect of a statutory sick leave day, provide his or her employer with a medical certificate in an official language of the State signed by a registered medical practitioner stating that the employee named in the certificate is unable to work.

The Complainant failed to do so. In the circumstances the entitlement to a paid day sick leave does not arise.

CA-00055592-004 - Terms of Employment (Information) Act, 1994

There is a dispute between the parties as to whether the Complainant actually received the contract of employment signed on the 14th of September 2022 by Ms Cherdevara.

On review of the oral evidence I am satisfied that the contract was drafted and at least shown to the Complainant at that point. This falls short of the Respondent’s obligations to give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment…..

However, I am of the view that this was a fairly technical breach of the act and that it did not cause any direct issues for the Complainant or employment relationship.

Section 7 d) of the act sets out my jurisdiction for redress: in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G,  and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

The Complainant has outlined her gross salary as €429 and as such I have jurisdiction to award up to €1716. Having regard to all the circumstances I believe an award of €200 is appropriate.

 CA-00055592-005 – Rest Breaks

While the Respondent has asserted that the Complainant got breaks they can provide no records of this. Their only witness Ms Cherdevara does not suggest that she was there at every occasion the Complainant was supposed to get a break. She also does not dispute that the Complainant was required to take her breaks on site. Presumably this is so she could be called on to work when needed and answer phone calls.

On review of the evidence, I conclude that the Complainant was allowed eat her meals on site but was required to be available to work.  I do not believe that she was allowed an uninterrupted set period of time where she was off work. This is what the act requires. 

Section 27 c) provides me with jurisdiction to 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.

I am cognisant that the purpose of the organisation of working time act is to protect the health and safety of employees. While the Complainant did not receive her proper breaks I note that she worked a relatively limited roster and was given time to eat her meals. In the circumstances I am satisfied that while the Respondent breached her rights they did not do so in a way which was likely to have health and safety impact.

In the circumstances I am of the view that an award of €2000 is appropriate.

CA-00055592-001

I find that the complaint is well founded and direct the Respondent to pay the Complainant €1500 in compensation.

CA-00055592-002

I find that the complaint is well founded and direct the Respondent to pay the Complainant €1000 in compensation.

CA-00055592-003

I find that the complaint is not well founded.

CA-00055592-004

I find that the complaint is well founded and direct the Respondent to pay the Complainant €200 in compensation.

CA-00055592-005

I find that the complaint is well founded and direct the Respondent to pay the Complainant €2000 in compensation.