ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051276
Parties:
| Complainant | Respondent |
Parties | Chun Liu | Rose Garden Restaurant |
Representatives |
| Clodagh O’Donovan Advance HR |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 8 of the European Communities (Working Conditions of Mobile Workers engaged inInteroperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of | CA-00062047-001 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00062047-002 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8(1) of the European Communities (Working Conditions of Mobile Workers Engaged in Inter- Operable Cross-Border Services in the Railway Sector) Regulations 2009 - S.I. No. 3 | CA-00062047-003 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 8 of the European Communities (Working Conditions of Mobile Workers engaged inInteroperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of | CA-00062047-004 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00062047-005 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission SI No. 494 of 2004 and Clauses 6 of the EC (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of 200 | CA-00062047-006 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00062047-007 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00062047-008 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997 | CA-00062047-012 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994. | CA-00062047-013 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00062047-014 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00062047-015 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00062047-016 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00062047-019 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00062047-020 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00062047-021 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00062047-022 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00062047-023 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00062047-024 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00062047-025 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 32 of the Adoptive Leave Act, 1995 | CA-00062047-026 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 32 of the Adoptive Leave Act, 1995 | CA-00062047-027 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00062047-009 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00062047-010 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00062047-011 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00062047-017 | 05/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 | CA-00062047-018 | 05/03/2024 |
Date of Adjudication Hearing: 28/06/2024 & 11/09/2024
Workplace Relations Commission Adjudication Officer: Conor Stokes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings. At the first hearing of this matter, the complainant confirmed that complaints CA-00032047-001, 002, 003, 004,005,006,015,016, 026 & 027 did not relate to her alleged employment situation and accordingly she would not be pursuing these matters. The respondent did not make any submissions ahead of the first hearing date and at the hearing submitted that the complaint was not an employee and that they had no knowledge of the complainant whatsoever. In circumstances where this argument was sprung upon the complainant, (and the Adjudicator) without any prior notification, the hearing was adjourned to allow the complainant to provide evidence of the existence of an employment relationship and other submissions on this matter and to seek advice if she chose to. The matter reconvened for a second hearing without having received any submissions from the complainant. The hearings were facilitated through the use of a mandarin Chinese interpreter, provided by the WRC. The complainant and three witnesses for the respondent undertook to give their evidence under affirmation. Where witnesses gave evidence, the opportunity to cross examine was offered. |
Summary of Complainant’s Case:
The complainant stated that she worked 57 hours per week. She also noted that she did not get a Sunday work premium. She stated that the owner promised to pay her every four months but that she didn't receive any payment. She noted that all workers were employed for long hours and that it was common to work for 9 hours without a break. The complainant stated that the respondent would not pay her and noted that she did not want to take a complaint. She stated that the respondent provided accommodation too and that she stayed in the owner’s house. The complainant stated that there was a witness who wanted to attend but was afraid to. The complainant stated that the respondent had CCTV footage of the house where she was staying but that she did not have access to that footage. She stated that the respondent did not register her as an employee and so she has no physical evidence of her employment. The complainant stated that she saw an advertisement for the job on Weichat and that's how she came to be in this job. The complainant submitted a photograph at the second hearing stating that this was evidence that she worked in the respondent's premises. She indicated that the photograph was the owner’s niece, and it was taken on the premises where she worked. |
Summary of Respondent’s Case:
The respondent submitted that it has no knowledge of the complainant, that the complainant has never worked in the business. The responded noted that it was at a complete loss as regards this complaint and suggested that it was the wrong business and the wrong employer The respondent noted that it had been inspected by the WRC recently. The respondent’s representative accepted that the photo submitted was of one of its employees but stated that it was not taken at the restaurant and could have been obtained anywhere. |
Findings and Conclusions:
The first issue to be considered is whether the complainant was an employee or not. The complainant submitted in oral evidence that she was an employee of the respondent. Two of the three witnesses for the respondent indicated that the complainant was not an employee of the respondent. The third witness did not refer to this issue directly but gave testimony corroborating the assertions of the other two witnesses. He was the accountant and indicated that although payslips were issue to staff, no payslip was issued in the name of the complainant. The complaint was heard across two hearings, almost three months apart. At the first hearing the complainant was asked to bring any evidence that she was an employee or lived in accommodation provided by the respondent to the next hearing. She did not bring any supporting evidence but proffered a photo taken in a restaurant indicating to the hearing that it was a photo of the owner’s niece in the restaurant. Although the respondent confirmed that it was a picture of an employee, it disputed that it was taken on the respondent’s premises and indicated that it may have been taken anywhere. Having regard to the presented by both parties, I am not satisfied that the complainant has established that she was an employee in the respondent company. Section 41(1) of the Workplace Relations Act states that 41. (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer. As the complainant has not established that she is an employee, I find that these complaints are not well founded, and the complainant has not established that any contravention of the Acts has occurred. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Having regard to all the evidence presented in relation to these complaints, my decision is that the complainant has not established that she was an employee of the respondent, that the complaints are not well founded and that the Acts have not been contravened. |
Dated: 8th January 2025.
Workplace Relations Commission Adjudication Officer: Conor Stokes
Key Words:
Redundancy Payments Act - Organisation of Working Time Act – Terms of Employment (Information) Act – Employment Equality Act – Industrial Relations Act 1946 – no employment established |