Complainant

Respondent

Parties

Ronald  Bujdei

Rathcreedon Limited,                    trading as Sushi King

Complainant

Respondent

Anonymised Parties

Representatives

 Audrey Gargan,

Managing Director.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00063338-001

07/05/2024

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

It should also be noted that the Complainant and Respondent witnesses were both agreeable to giving a formal affirmation that all evidence provided would be truthful. The giving of false statements or evidence is an offence.

The Specific Details of the Disputes are outlined across two separate Workplace Relations Complaint Forms which were received by the WRC on the 23rd of March 2024 and the 26th of April 2024. The within decision relates to a standalone complaint.  

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings. 

I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a  

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was not represented and made his own case. When it came time to hear the Complainant’s evidence, the Complainant made an Affirmation to tell the truth. The Complainant did not provide me with any documentation to corroborate or further expand on his oral evidence. The Complainant said that all the paperwork was available on his telephone, but he had not printed hard copies of anything for me to look at and consider. I did look at some emails he brought up on his phone screen which in turn had to be shared with the Respondent.

This was a most unsatisfactory process. The Complainant additionally relied on the submissions outlined in the Workplace Relations Complaint Form. To my mind the approach taken was not methodical and it was difficult to understand why the Complainant was not better prepared to make his case.

The oral evidence adduced by the complainant was challenged as appropriate by the Respondent witness.

The Complainant had worked with the Respondent company since 2018. He was ultimately dismissed for insubordination and is claiming this dismissal was unfair. The Complainant has additionally raised an issue under the Payment of Wages Act 1991. The complaint reads:

My employer consistently deducted hours from my pay without my permission each week. Upon checking, I discovered that my timesheet never matched my payslip. When I asked my employer for an explanation, they refused to provide one. I wrote 1 euro because I don't know how much is in total. because I couldn't track every deduction Sometimes it was 10 minutes short, sometimes 7 minutes short. For example, if my timesheet showed 51 hours and 8 minutes, I only received payment for 51 hours.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent entity was represented by the company director/owner A. Gargan.  The company is involved in the Retail & Catering production of high-quality Sushi, Japanese & Asian Food. The Respondent provided me with written submissions and supporting documents in advance of the hearing. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent witness in the course of making her case and in fact the Complainant himself had to rely on the Respondent’s documents in support of his case. All evidence was heard following an Affirmation. The Respondent witness was questioned by the Complainant as appropriate.

The Respondent rejects that there has been an unlawful deduction.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced by both parties herein.

The Complainant commenced his employment as a Kitchen Porter in and around the 11th of April 2018. By all accounts the Complainant initially worked well within the Respondent enterprise. As I understand it, the Complainant worked in the production end of the company working in a food prep environment preparing sushi produce for retail operations as well as for restaurants offering a sushi menu. The Complainant upskilled in the course of his employment and worked directly preparing the final product.

I have had an opportunity to study the Contract of Employment which was provided by the Respondent and which the Complainant agreed was operative up to the time of his termination of employment.

The Complainant worked full time in accordance with a Roster which scheduled him for 40 hours in a 5 x 8 hour shift weekly arrangement. As I understand it the Complainant clocked in and clocked out at the start and finish of each shift and Ms. G herself would go through the clocked times for the purpose of calculating payment which was at a daily rate. The Complainant started at a rate of €9.55 per hour working up to €16.00 hours in 2024. In the course of her evidence the Respondent conceded that she rounded up and down to the nearest 5 minutes. This appears to be one of the reasons that the Complainant could not exactly reconcile his wage slips with the hours and minutes he worked.

I have been provided with a weekly breakdown of the hours actually worked by the Complainant going back as far as 2021 and I note that the complainant very often worked in excess of the 40 hours scheduled but appears to have been paid a flat rate no matter the number of hours worked. I have been told by the Respondent that she has performed the reconciliation and that no money has been deducted in calculating the hours worked. This is demonstrated in the figures provided. The Complainant did not attempt to challenge the Timesheets presented. I am satisfied that there is no loss herein.

The Contract of Employment allows for this arrangement. The Respondent has led evidence to the effect that the Complainant was always available to work as many hours as he could. There was, it seems, an ambition on the Complainant’s part to obtain a mortgage. I note that very occasionally the Complainant worked well in excess of the 48 hours allowed by Statute.

The Respondent stated that over the last couple of months of 2023 the Complainant had asked for as many extra hours as he could get. He wanted to show an increased rate of earning as part of a mortgage or other loan application process. It suited the Respondent to give the Complainant an extra hour or two each day so that he would start before his nominated start time of 3pm. I understand that the arrangement suited the Respondent as part of its preparation for an end of year Hygiene Audit. The Complainant was expected to deep clean over and above normal cleaning expectations. The arrangement continued into January of 2024.

It seems tensions arose between the Complainant and Ms. G in mid-February 2024. It seems the Complainant had suggested that he should be eligible for a promotion to Manager in and around this time. This idea was pushed back on by Ms G. As part of this same conversation Ms G drew the Complainant to the following issue by way of email on the 15th of February:

“Following on from our conversation earlier this afternoon. You clocked into work last Monday at 10.35am instead of the correct 3pm. You said that someone was late but were unable to tell me who asked you to come in early. We have spoken about this before. It is not acceptable that you come and go at your preferred times.

Please take this as official written warning regarding adhering to roster. Your start time is 3pm like everybody else. Should there be any changes, be they due to personal of work-related reasons, these changes must be agreed with your manager, Shah or myself.”

Ms G said in evidence that she had by now identified that the Complainant was regularly coming to work well in advance of the rostered hour of 3pm for which he was being asked to work. The Complainant was, in effect, clocking up unnecessary hours when he was not really required and for hours which she was liable to pay for. The Respondent witness explained that allocating more hours to the Complainant meant shaving hours off other members of staff which left them at a financial loss which was wholly unfair and led to a break down in any sense of team effort.

Ms. G says she was forced to communicate with the Complainant again on the 20th of February stating:

“As per your last mail, you again ignored a clear management instruction which was given to you, on Thursday, the 15th of February you started work at 11.24 am. You were told clearly to start work at 3pm. The additional hours that you worked were not agreed with me in advance. For this reason, you will not be paid for the time between 11:24 and 3pm as you were told to come in at 3pm. As you have ignored a clear instruction from management, we will consider next steps.”

Ms. G has given evidence to the effect that she did, in fact, pay the Complainant for the extra hours he insisted (unbidden) to work up to the end of February but stopped paying for them from the start of March 2024.

I am satisfied that it is this shortfall in pay that has been brought to my attention by the Complainant. The Complainant has not identified the number of hours he says he worked and was not paid for. The Respondent, of course, holds the view that the Complainant was not invited to work extra hours and his presence in the workplace outside his scheduled hours was tantamount to wilful insubordination.

In the circumstances I am satisfied that the Complainant has not provide me with evidence of any unlawful deduction from his wages.

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

CA-00063338-001 – No aspect of the Complainant’s evidence has given rise to a well-founded complaint of an unlawful deduction. The complaint fails.