Complainant

Respondent

Parties

Syed Bilal  Perwaiz

The Montenotte Hotel

Representatives

  Self-represented

Ciaran Cummins BDM Boylan Solicitors LLP

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-00061757-003

24/02/2024

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

CA-00061757-004

24/02/2024

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

CA-00061757-006

24/02/2024

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.

The complainant and one witness for the respondent undertook to give their evidence under affirmation.  The parties were offered the opportunity to cross examine but declined the option.

CA-00061757-003 Hours of Work

The complainant submitted that he was not provided with breaks during the day.

CA-00061757-004 Terms of Employment

The complainant submitted that the notice period to which he was entitled was changed without bringing it to his attention.

CA-00061757-006 Minimum Notice

The complainant submitted that he was not provided with a payment for his notice period.

In evidence the complainant outlined how when he initially began work, he asked the head chef for brakes. He said that he asked a number of times. When probed he also mentioned asking the sous chef for breaks. He eventually stopped asking for breaks.

As regards the change to his notice period, The complainant accepted that his original contract was withdrawn and that he was provided with a different contract of employment which outlined his terms of employment. Those terms did not change.

The complainant stated that he was not paid for a period of notice when his employment was terminated.  The complainant confirmed that he repaid the overpayment in one lump sum in early November 2023.

CA-00061757-003 Hours of Work

The respondent submitted that the complainant was provided with breaks, and in the alternative, he was told at the start of his employment how to make a complaint if he found himself not receiving his statutory breaks. The respondent accepted however that they did not maintain records of the complainants break times.

CA-00061757-004 Terms of Employment

The respondent submitted that the complainant originally indicated to then that he was in a position to work full time, he was successful in gaining employment on that basis. His contract reflected the terms and conditions for a full-time worker. The respondent noted however that as the complainant only had a visa stamp 2, he was not legally in a position to work full time. When the employer found out about this, his original contract was voided but he was given the opportunity to work on a part time basis in accordance with his visa.

The subsequent contract he was offered indicated a notice period of one week during probation and thereafter in accordance with the statutory provisions. The respondent noted that at all times the complainant was informed of this information and was provided it in writing, respondent kept a copy of the signed terms of employment that were provided to the complainant.

CA-00061757-006 Minimum Notice

The respondent submitted that it paid the complainant his minimum notice. In support of this they submitted a number of pay slips.

The respondents witness confirmed that they did not keep a record of the complainant breaks. In relation to the pay slips she explained that there had been an overpayment made and that the respondent was recouping that overpayment in subsequent pay slips and that minimum notice. Fell under that recoupment.

The respondents witness confirmed that the complaint was paid €17.25 per hour for a 20-hour week, giving a weekly wage of €345.

CA-00061757-003 Hours of Work

Both witnesses came across as credible. The complainant stated that he was not provided with breaks in accordance with the statutory provisions.  He provided some, although not comprehensive detail in support of his contention.  The respondent witness stated that he was provided with breaks in accordance with the provisions of the Act.  However, she noted that she was not in a position to provide written records or evidence in relation to those breaks.

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

Records.

25.—(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.

Having regard to the foregoing, I prefer the complainant account. In the absence of any records regarding statutory break times for the complainant, I find that this complaint is well founded and that the act has been contravened.  I consider three weeks wages to be an appropriate amount of compensation to award in all the circumstances.

CA-00061757-004 Terms of Employment

The complainant submitted his terms and conditions of employment were varied without it being notified to him in writing. However, he was legally not able to accept a full-time contract as he was on a stamp 2 visa which as a student only permitted him to work 20 hours during the week, with the ability to work 40 hours per week outside of term time. The respondent became aware that their original contract with him was illegal and therefore void. It offered the complainant part time contract, which he signed on each page when accepting the job. Thereafter his terms and conditions were not varied.  Having regard to all of the foregoing, I find that the complaint is not well founded and that the Act has not been contravened.

CA-00061757-006 Minimum Notice

The complainant stated that he was not paid for the minimum notice period that he was due.  The respondent witness stated that he was paid notice, and that any errors were due to an overpayment of his wages that was being recouped. The complainant indicated that he repaid the overpayment in full in November and accordingly any recoupment payments were not appropriate. The respondent submitted that it relied upon the wages slips submitted at the hearing.

In the circumstances I am satisfied that the respondent has been unable to demonstrate that the complainant was paid for his minimum period of notice.  Accordingly, I find that the Act was contravened, and that the complainant is entitled to the payment of one week's salary.

CA-00061757-003 Hours of Work

Having regard to all the written and oral evidence provided in relation to this complaint, my decision is that the complaint is well founded, and the Act was contravened.  I award the complainant compensation equivalent to three weeks wages which I consider to be just and equitable in all the circumstances of the case, i.e. I award the complaint €1,035 in compensation.

CA-00061757-004 Terms of Employment

Having regard to all the written and oral evidence presented to me in relation to this matter, my decision is that the complaint is not well founded and that the Act has not been contravened.

CA-00061757-006 Minimum Notice

Having regard to all the written and oral evidence provided in relation to this complaint, my decision is that that the Act was contravened, and I direct the respondent to pay the complainant compensation for the loss sustained, i.e., one week’s wages: €345.

Organisation of Working Time Act – Hours of Work – breaktimes – obligation on employer to keep records – Act contravened – award of compensation – Terms of Employment – not well founded – Minimum Notice – Act contravened – compensation for loss sustained