Complainant

Respondent

Parties

Luca Rosati

R & M Restaurant Limited

Representatives

David Gaffney, Padraig J. Sheehan Solicitors

Sean Stokes, CS Consulting

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00062815-001

15/04/2024

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

CA-00062815-002

15/04/2024

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

CA-00062815-003

15/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00062815-004

15/04/2024

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

CA-00062815-005

15/04/2024

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

CA-00062815-006

15/04/2024

The complainant was employed as a head chef in Rosa Madre Restaurant in Temple Bar in Dublin for two years and three months, having commenced on November 3rd, 2021.  The restaurant was closed on Sundays and Mondays, and he worked from Tuesdays to Saturdays.  At the hearing, the complainant said that his wages were €850 gross per week and that his net pay was €650.  He said that he worked an average of 52 hours a week and that he was paid €25 per hour in cash for all the hours that he worked over 40 hours.  He said that the chefs also received tips in cash.

On Saturday, February 17th, 2024, the complainant claims that he was dismissed when he tried to have a discussion with the owner about being short-staffed.  The respondent disputes that the complainant was dismissed and, in a statement submitted to the WRC in advance of the hearing, the restaurant owner claims that, during a conversation about the staffing issue, the complainant threatened to stab him and then announced that he was leaving.  In his evidence at the hearing, the complainant said that he never threatened to stab anyone, and that Mr De Marzio told him to “get out of my house” and he left.

In addition to his complaint under the Unfair Dismissals Act, the complainant claims that he got no notice of his dismissal.  Thirdly, he claims that he was not paid his wages for the last fortnight that he worked and that he was not paid his outstanding holiday pay.

Under the Organisation of Working Time Act 1997, the complainant claims that he frequently started work at 10.00am, without having had a break of 11 hours from the previous evening.  He claims also that the restaurant was often too busy for him to take a break to eat lunch or dinner, and he also claims that he worked an average of 52 hours every week.

CA-00062815-001:  Complaint under the Unfair Dismissals Act 1977

As there is a dispute about the fact of this dismissal, with the respondent arguing that the complainant was not dismissed, in the first instance, I will consider the evidence of the complainant.

In his evidence at the hearing, the complainant said that, on the morning of Saturday, February 17th, there were only three chefs available for work instead of four.  One of the chefs who was at work had started the week beforehand and wasn’t very experienced with the food served in the restaurant.  The complainant said that the restaurant serves authentic Italian food and that each dish requires knowledge and attention.  On the day in question, there were bookings for 160 customers and the complainant and one of his colleagues decided to “talk to the boss.”  When he approached Mr De Marzio to talk to him about being short-staffed, the complainant said that, in response, Mr De Marzio responded aggressively and told him that he shouldn’t talk to his colleagues about problems.  The complainant’s evidence is that Mr De Marzio said, “this is my house” and he told him to stop complaining or leave.  The complainant said that he went upstairs to the changing room and Mr De Marzio followed him.  He said that he changed his clothes and left.  Two hours later, at 11.04am, the complainant said that he sent a text message to Mr De Marzio.  Mr Gaffney included a copy of this message in the complainant’s book of documents.  It reads in part, as follows:

“Good morning dear boss of Rosamadre restaurant.  This morning after I was talking about some issue in the restaurant you send me home.  This one is probably can be consider us unfair dismissal.  Just to let you know I will go forward to looking after my right…(sic)”

The complainant said that he got no reply from Mr De Marzio and he got no wages on the date that his fortnightly wages were due.  He started in another job on March 12th, 2024.

In response to questions from Mr Stokes, the complainant denied that he threatened to stab Mr De Marzio and he said that he doesn’t make such threats.  Mr Stokes referred to the written statements of Mr De Marzio, Ms Reis and Mr De Souza Nounes which were submitted in advance of the hearing.  These all refer to the complainant threatening to stab Mr De Marzio.  The complainant replied saying that Ms Reis is Mr De Marzio’s partner, and, for this reason, she is not impartial.  He said that, when he was speaking with Mr De Marzio that Saturday, they spoke in Italian.  He said that Mr De Souza Nounes is Portuguese and that he could not have interpreted the conversation.  

In his submission to the WRC, Mr Stokes said that the complainant’s claim of unfair dismissal is denied.  He said that the complainant left after threatening to stab the owner, “prior to which he used racist comments and was aggressive to members of staff.”  Mr Stokes submitted a written statement from the owner, Mr De Marzio, in which he said that, on the morning in question, he explained to the complainant that extra staff were arriving in a week to help with the workload.  Mr De Marzio’s statement says that the complainant became aggressive and that he asked if he could speak to him privately.  He said that the complainant replied, “you want me to go” and that he collected his things and said that he was leaving.  Mr Stokes said that Mr De Marzio and two other witnesses are prepared to appear to give evidence in this regard.  Due to the fact the witnesses left the hearing to go to work in the restaurant, no evidence was submitted by the respondent’s side.

CA-00062815-004:  Complaint under Minimum Notice and Terms of Employment Act 1983

It is the complainant’s case that he was dismissed without notice on Saturday, February 17th, 2024, and that he was not paid in lieu of notice.  The respondent’s case is that the complainant left his job without notice and that he was not dismissed.  Based on this position, the respondent argues that the complainant is not entitled to notice.

CA-00062815-005:  Complaint under the Payment of Wages Act 1991

The complainant claims that he was paid no wages for his last two weeks of employment, ending on February 17th, 2024.  He also claims that, when his employment ended, he got no pay for holidays not taken up to his last day at work.  In his evidence, he said that he took all his holidays in 2023 and his claim for non-payment of holiday pay relates to the period from January 1st until February 17th, 2024.

I note that, in the complainant’s booklet for the hearing, he included a copy of a text message on February 24th, 2024, from the manager, Ms Reis, in which she asked him if she should send his “payment” by account or if he would call to collect it.

In his submission, Mr Stokes said that the complainant’s wages and holiday pay “have been paid in full.”  After the hearing, on September 19th, he provided a copy of a payslip and confirmation that tax and USC was remitted to the Revenue Commissioners on the complainant’s behalf in respect of the week ending on February 18th, 2024.  

CA-00062815-002:  Complaints under the Organisation of Working Time Act 1997

In his evidence, the complainant said that he worked from Tuesdays to Saturdays.  The restaurant opened for evening dinner on Tuesdays, Wednesdays and Thursdays and for lunch and dinner on Fridays, Saturdays and Sundays.  The complainant said that a lunchtime offering was also available on Thursdays in the weeks coming up to Christmas.  Hours of work for chefs in the restaurant were as follows:

Tuesday:  9.00am or 10.00am until finish

Wednesday and Thursday:  1.00pm until finish

Friday and Saturday:  10.00am until finish

The complainant said that he frequently finished work just before midnight on Thursdays and Fridays and that he was required to be back at work on Fridays and Saturdays at 10.00am.  The effect of this is that he did not get 11 hours’ break between his daily shifts.

CA-00062815-003:  Complaint under the Organisation of Working Time Act 1997

The complainant claims that, for the duration of his employment with the respondent, he worked 52 hours per week on average, more than the permitted average of 48 hours per week.  Following the hearing, Mr Gaffney submitted copies of the complainant’s rosters for 70 weeks up to the final week that he worked for the respondent.  These show that, most weeks, he worked more than 50 hours a week, and that only very rarely, did he work less than 50 hours.

On behalf of the respondent, Mr Stokes said that the complainant worked an average of 40 hours per week and that this will be apparent from his payslips.

CA-00062815-006:  Complaint under the Organisation of Working Time Act 1997

In his evidence at the hearing, the complainant said that on many days, he and his colleagues did not have time to take a lunch or dinner break, and that they had their meals standing up in the kitchen.

In response to this final complaint, Mr Stokes said that the complainant had numerous breaks during the working day and that the respondent’s witnesses would provide evidence to this effect.  In the end, the respondent’s witnesses left the hearing without giving any evidence.

CA-00062815-001:  Complaint under the Unfair Dismissals Act 1977

A definition of “dismissal” is set out at section 1 of the Unfair Dismissals Act.  Dismissal is defined as the termination by the employer of the employee’s contract or, the termination by the employee of his contract.  At section 22.13 of “Redmond on Dismissal Law,” by Dr Desmond Ryan, (© Bloomsbury 2017), Dr Ryan refers to the general understanding of dismissal:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt dismissal was intended or that it may be reasonably inferred.”

In this case, communication regarding the termination of the complainant’s employment was far from unequivocal and the task of interpreting what both parties intended was a challenge.  This is my understanding of the facts:

An argument took place between the complainant and the restaurant owner early in the morning of Saturday, February 17th, 2024, regarding the heavy bookings for the day ahead and the fact that the kitchen was one chef down.  Arising from the argument, the complainant left the workplace.

Later that day, the complainant wrote to the owner and told him that he considered himself to be dismissed and that he intended consulting a solicitor. 

The employer did not contact the complainant to resolve their argument.  The complainant’s booklet contains examples of messages between the complainant and the restaurant owner before their fateful argument on February 17th, 2024.  From the messages, it is apparent that they had a very good relationship prior to that date.  If it was his position that the complainant was not dismissed, the restaurant owner could have contacted the complainant within a day or two of receiving his text message on February 17th, and he could have made some effort to resolve their dispute. 

I have concluded that the complainant left his job on February 17th on the instructions of his employer.  The complainant got in touch later that day and told his employer that he considered himself to have been dismissed.  Based on the failure of his employer to contact him, to inform him that he was not dismissed and to ask him to return to work, and, in the absence of any evidence from the restaurant owner, I have concluded that the complainant was dismissed.

From the evidence of the complainant, the altercation that occurred on February 17th, 2024, arose from a concern about the pressure of working a busy Saturday with three chefs instead of four.  I find that it was not unreasonable for the complainant to raise this issue with his employer.  There is a conflict regarding the outcome of the conversation between the complainant and the owner on the morning of February 17th and the only reliable fact is that the complainant left and that his employer did not ask him to return.

The responsibility to manage the employment relationship falls squarely on the employer and, regardless of the fractious nature of the relationship between them, an employee at risk of dismissal is entitled to the benefit of fair procedures.  From the submission provided to me by Mr Stokes, if he was concerned about the complainant’s conduct, I am certain that the restaurant owner was aware of the requirement to deal with it in accordance with their own disciplinary procedures.  They decided however, to take what they considered to be a more expedient route to end the employment relationship by assuming that the complainant decided to resign.  The only conclusion I can arrive at is to find that the dismissal of the complainant was substantively and procedurally unfair.

CA-00062815-004:  Complaint under Minimum Notice and Terms of Employment Act 1983

I have concluded that the complainant was dismissed.  Based on this conclusion, I find that, as he had service of more than two years, in accordance with section 4 of the Minimum Notice and Terms of Employment Act 1973, he was entitled to two weeks’ notice.  As he got no notice of his dismissal, he is entitled to pay in lieu of notice.

CA-00062815-005:  Complaint under the Payment of Wages Act 1991

Based on the payslip submitted to me by Mr Stokes on September 19th, 2024, following the hearing of this complaint, I am satisfied that the complainant’s weekly pay and holiday pay were processed up to the week ending on February 18th and that tax, PRSI and USC were deducted from his wages and submitted to the Revenue Commissioners on February 27th. 

CA-00062815-002:  Complaint under Section 11 of Organisation of Working Time Act 1997

Section 25 of the Organisation of Working Time Act provides as follows:

(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

It is apparent from this section of the Act that it is the responsibility of the employer to maintain relevant records and that where an employer fails to keep such records in respect of his or her compliance with a provision of the Act, the onus of proving that the section was complied with rests with the employer.

The Respondent provided no evidence or records to discharge its burden to establish compliance with the Act.  For the respondent, Mr Stokes said that there are no hours of work records maintained in the restaurant apart from rosters and staff are not required to clock in and out or to sign in and out.  In the absence of any evidence to the contrary and, based on the complainant’s evidence and the record provided in his rosters, it is credible that the complainant had to work until nearly midnight on some Thursdays and Fridays when there was a shortage of chefs.  As he was required to be back at work by 10.00am the next day, in breach of section 11 of the Organisation of Working Time Act, I find that, for the last six months of his employment, for which I have jurisdiction to make an enquiry, he did not consistently receive a rest break of 11 hours.

CA-00062815-003:  Complaint under Section 15 of Organisation of Working Time Act 1997

With regard to the average number of hours worked by the complainant each week, in the absence of working time records, I must reach a conclusion on this complaint based solely on the evidence of the complainant.  He said that there was an arrangement between him and the manager that he would be paid €25 per hour for hours worked in excess of 40 hours per week.  He said that he frequently didn’t finish work until after midnight and he also said that the restaurant was short-staffed.  Based on this evidence, in breach of section 15 of the Organisation of Working Time Act, I find that, for the last six months of his employment, for which I have jurisdiction to make an enquiry, the complainant worked for more than an average of 48 hours per week. 

CA-00062815-006:  Complaint under Section 12 of Organisation of Working Time Act 1997

I accept the evidence of the complainant regarding the failure of the respondent to ensure that he got a break of 30 minutes for lunch or dinner during the working day.  I find therefore, that, in this respect, the respondent breached section 12 of the Act.

CA-00062815-001:  Complaint under the Unfair Dismissals Act 1977

I decide that this complaint is well founded.  In his evidence, the complainant said that, following his dismissal on February 17th, 2024, he commenced working again on March 12th.  He was therefore unemployed for three weeks.   I direct the respondent to pay the complainant compensation of €2,550, equivalent to three weeks’ gross pay.

CA-00062815-004:  Complaint under Minimum Notice and Terms of Employment Act 1983

I decide that this complaint is well founded, and I direct the respondent to pay the complainant compensation of €1,700, equivalent to two weeks’ gross pay. 

CA-00062815-005:  Complaint under the Payment of Wages Act 1991

I decide that this complaint is not well founded.

CA-00062815-002:  Complaint under the Organisation of Working Time Act 1997

I decide that this complaint regarding the breach of section 11 of the Act concerning the right to a daily rest break of 11 hours is well founded.  I direct the respondent to pay the complainant compensation of €1,500. 

CA-00062815-003:  Complaint under the Organisation of Working Time Act 1997

I decide that this complaint regarding the breach of section 15 of the Act concerning the permitted maximum weekly hours of work is well founded.  I direct the respondent to pay the complainant compensation of €1,500. 

CA-00062815-006:  Complaint under the Organisation of Working Time Act 1997

I decide that this complaint regarding the breach of section 12 of the Act concerning the right to breaks during the working day is well founded.  I direct the respondent to pay the complainant compensation of €1,500.

Summary of Redress Awarded

Redress awarded for a finding of unfair dismissal is considered to be compensation for loss of earnings and is subject to deductions for PAYE, PRSI and USC.  Redress under the Organisation of Working Time Act is compensation for a breach of a statutory entitlement and is not subject to deductions.  In summary, therefore, I direct the respondent to pay the complainant compensation of €2,550 which is subject to deductions and a further €6,200 which is not subject to deductions.

Dismissal in doubt, non-payment of wages, notice, breaks at work, average working week