Complainant

Respondent

Parties

Frederico  Madureira

The Food Point Limited

Representatives

Self-represented 

Did not attend

Act

Complaint Reference No.

Date of Receipt

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

CA-00062417-001

20/03/2024

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

CA-00062417-002

20/03/2024

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

CA-00062417-003

20/03/2024

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

CA-00062417-004

20/03/2024

The Complainant commenced his employment with the Respondent on 12 September 2023. On 20 March 2024, he referred his complaints to the Director General of the WRC.

An adjudication hearing for the purpose of investigation of the Complainant’s claims was scheduled for 23 October 2024. Correspondence informing the parties of the arrangements for the hearing issued on 22 August 2024.  

There was no attendance by, or on behalf of, the Respondent at the hearing. There has been no communication from the Respondent indicating any difficulties with attending the hearing. I have confirmed that hearing notification issued to the Respondent’s registered address. At the outset of the hearing, the WRC made unsuccessful attempts to contact the Respondent by phone and by email. The Complainant attended the hearing.

The Complainant alleges that he did not receive the national minimum rate of pay.

Summary of direct evidence of the Complainant

At the adjudication hearing, the Complainant confirmed that he was paid €12.80 per hour. The Complainant had not requested awritten statement of his average hourly rate of pay.

There was no attendance by, or on behalf of, the Respondent at the adjudication hearing.

Section 23 of the National Minimum Wage Act, 2000 provides:

‘23. Employee entitled to statement of average hourly rate of pay for pay reference period

(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12 month period immediately preceding the request.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150% calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of Schedule 1,

(b) the working hours of the employee calculated in accordance with section 8,

(c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and

(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.’

Section 24 of the Act - Disputes about entitlement to minimum hourly rate of pay stipulates:

‘(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.

(2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the adjudication officer may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,’

Section 24(2)(a) of the Act provides that a dispute cannot be referred to an Adjudication Officer under the Act unless an employee has received a statement pursuant to Section 23, or having requested such a statement, the employer has failed to provide the statement within the period of four weeks.

The Complainant had not requested a statement of average hourly rate of pay from his employer. Therefore, I find that I have no jurisdiction to deal with the matter. In Mansion House Ltd v Izquierdo MWD 3/2004, the Labour Court held that, where a claimant had failed to request a statement in accordance with section 23(1) of the Act, the “appropriate course of action” was for the rights commissioner to decline jurisdiction without prejudice to the claimant's right to re-enter the same complaint having complied with the said subsection. It was the Labour Court's view that a decision dismissing the claim on its merits on the basis of non-compliance with section 23(1) was neither “appropriate nor is it warranted by any provision of the Act”.

For the reasons set out above, I declare that I do not have jurisdiction to hear this complaint without prejudice to the Complainant's right to re-enter the same complaint having complied with Section 23 of the Act, subject to applicable time limits. I declare this complaint to be not well founded.

The Complainant alleges that he was not compensated for working on a Sunday.

Summary of direct evidence of the Complainant

At the adjudication hearing, the Complainant stated that in two weeks in September 2023, after the restaurant opened, he worked 111 hours per week. In October 2023 he worked 274.5 hours. He said that when he was employed, he told the Respondent that it would take at least a month to open the kitchen. He was given 24 hours. The Complainant said that there was no cooking equipment, and he had to launder kitchen linen at home, as the restaurant did not have a washing machine.

The Complainant said that he worked every Sunday between 12 September and 25 November 2023.

There was no attendance by, or on behalf of, the Respondent at the adjudication hearing.

Section 14. Sunday work: supplemental provisions of the Organisation of Working Time Act stipulates as follows;-

(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.

This complaint was referred to the Workplace Relations Commission on 20 March 2024. Therefore, the cognisable period for this complaint in accordance with the provisions of Section 41(6) of the Workplace Relations Act 2015 is the six-month period prior to the referral of the claim i.e., from 21 September 2023 to 20 March 2024.

In Park House Hotel Ltd v Wlodarczyk DWT 24/2016, the Labour Court said that what was intended by section 14 of the Act was that an employee who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive if they were not so obliged. In Viking Security Ltd v Valent DWT 89/2014, the Labour Court held that it could only be satisfied that an employee had obtained his or her entitlements under this section “where the element of compensation for the obligation to work on Sunday is clearly discernible from the contract of employment or from the circumstances surrounding its conclusion”.

The Complainant’s uncontested evidence, corroborated by his payslips, was that he was paid €12.80 per hour which was in excess of the national minimum wage during the period of the Complainant’s employment with Respondent. It was for the Respondent to identify the portion of the hourly rate referable to the obligation to work on Sunday.

I refer to the Labour Court determination DWT1032 Duesbury Limited v Fros. where the Court held: -

It is clear from Subsection (1)(b) of this Section that the right to compensation for Sunday working can be satisfied where that requirement is taken into account in determining the Employee’s rate of pay. This suggests that some element of the Employee's pay must be specifically referable to the obligation to work on Sundays. It is the Respondent’s case that approximately 10% of the Claimant’s pay is in consideration of her liability to work on every second Sunday. In the normal course it is for the person who asserts to prove that which they assert (see Joseph Constanine Steamship Line Ltd. v Imperial Smelting Corp Ltd. AC 154).Hence, it is for the Respondent to show that at the time the Claimant’s rate of pay was established, a specific element of it was intended to be in consideration of her obligation to work on Sundays. 

The Complainant’s contract is silent on the question of Sunday premium.

The above case remains authority for the proposition that where an employee’s contract of employment is silent on the question of Sunday premium, the onus is on the employer to prove that the requirement to work on Sunday was taken into account in the determination of the employee’s rate of pay.  Regrettably, the Respondent did not avail of the opportunity to defend the claim. There was no evidence put forward by the Respondent that would show that any additional compensation was given to the Complainant in respect of the requirement to work on Sundays.

I take account of the Labour Court decision in Chicken & Chips ltd t/a Chicken Hut v. Dawid Malinowski DWT159 regarding Sunday premium where it stated; “The Court considers a premium of 33% of the hourly rate is reasonable.”

In Viking Security Limited v. Tomas Valent DWT 1489, the Labour Court provided guidance on calculating Sunday premium. The Labour Court measured compensation at approximately time plus one third for each hour worked on a Sunday.

In the absence of any evidence being adduced on that point by the Respondent, I accept the Complainant’s uncontested evidence that he worked every Sunday. There were nine Sundays in the cognisable period. In light of the non-participation of the Respondent in the adjudication hearing, and the consequent absence of attendance records, it is not possible for me to ascertain the exact hours worked by the Complainant during the cognisable period. The Complainant’s payslips show that he worked some 660.5 hours in the period of approximately 10.5 weeks. I, therefore, conclude that the Complainant would have worked some 63 hours per week on average. Even if it was assumed that the Complainant did get occasional day off, it seems that he would have worked at least 10.5 hours per day.

This is the basis on which I will calculate the Sunday premium.

I declare this complaint to be well founded.

I require the Respondent to pay the Complainant €403.20 gross for the financial loss which the Complainant suffered. My calculations are based on the average of 10.5 hours worked on a Sunday * 9 Sundays worked *€12.80/3.

I further require the Respondent to pay the Complainant compensation in the amount of €500 for the breach of the Complainant’s statutory rights which I deem just and equitable having regard to all the circumstances.

The Complainant alleges that the Respondent did not pay him his salary and accrued annual leave.

Summary of direct evidence of the Complainant

The Complainant alleges that he should receive €2,092.80 in outstanding salary for the month of November 2023 and €675.97 for annual leave accrued to be paid on cessation of his employment.

The Complainant submits that he received a payslip showing the above amounts but no monies were paid to him on the pay day on 10 December 2023 or after.

There was no attendance by, or on behalf of, the Respondent at the adjudication hearing.

Based on the uncontested evidence of the Complainant, I find that the Complainant was not paid €2,092.80 in outstanding salary for the month of November 2023 and €675.97 for annual leave accrued to be paid on cessation of his employment, totalling €2,768.77.

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant the sum of €2,768.77.

The Complainant alleges that the Respondent has not pay him the appropriate payment in lieu of notice of termination of his employment.

Summary of direct evidence of the Complainant

The Complainant said that given the lack of engagement on the part of the Respondent, all employees wrote a letter to the Respondent on 25 November 2023 expressing their concerns over unpaid wages.  The employees informed the Respondent that they would withdraw work if all outstanding payments were not settled.

The Complainant said that the employees stopped working and closed the restaurant because they were not paid.

There was no attendance by, or on behalf of, the Respondent at the adjudication hearing.

Relevant Law:

Payment of Wages Act 1991

The Payment of Wages Act 1991 (hereinafter referred to as “the 1991 Act”) provides the following definition of “wages” at section 1:

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b)   any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i)               any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii)              (ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii)            any payment referable to the employee's redundancy,

(iv)            any payment to the employee otherwise than in his capacity as an employee,

(v)              any payment in kind or benefit in kind,

(vi)            any payment by way of tips or gratuities.

Sections 5(1) and 5(6) of the 1991 Act provide:

5(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) …

(3) …

(4) …

(5) …

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The non-payment of wages that are properly payable to an employee is an unlawful deduction by the employer. This definition also makes it clear that payments in lieu of notice i.e. such moneys which the employee would have earned as wages had he worked out his notice are “wages”. The question to be decided is whether the wages claimed were properly payable.

The Complainant gave evidence that he commenced employment with the Respondent on 12 September 2023. The Complainant alleges that he was dismissed and did not receive the appropriate payment in lieu of notice of termination of his employment.

The Respondent did not attend the hearing to defend the claim.

The Complainant submitted that he was dismissed. However, he also gave evidence that he “walked out” of the job due to the non-payment of wages. Anemployee who has resigned from their employment in circumstances of a constructive dismissal cannot succeed in a claim for minimum notice.

However, even if it was accepted that the Complainant was dismissed by the Respondent, to be entitled to the statutory minimum notice, an employee must have been working for an employer continuously for at least 13 weeks. The Complainant commenced his employment on 12 September 2023. He gave evidence that his employment terminated on 25 November 2023.

The Complainant had not worked for the Respondent for the required period and, therefore, had he been dismissed by the Respondent he would have no entitlement to a statutory notice in any event.

I declare this complaint to be not well founded.

National minimum wage – Sunday premium – notice – wage-