Complainant

Respondent

Anonymised Parties

A Delivery Driver

Broz Asset Private Limited t/a Mix Spice 3 In 1

Representatives

Migrant Rights Centre Ireland

 No Appearance

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-00062799-001

13/04/2024

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

CA-00062799-002

13/04/2024

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

CA-00062799-003

13/04/2024

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

CA-00062799-004

13/04/2024

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

CA-00062799-005

13/04/2024

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

CA-00062799-006

13/04/2024

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

CA-00062799-007

13/04/2024

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

CA-00062799-008

13/04/2024

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

CA-00062799-009

13/04/2024

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

CA-00062799-010

13/04/2024

The Complainant’s complaint was received by the Workplace Relations Commission on 13 April 2024. The Complainant gave evidence on Oath and was represented at the hearing. Detailed submissions were received from the Complainant in advance of the hearing.

A witness appeared on behalf of the Complainant who gave evidence on Affirmation.

The Respondent did not appear at the hearing to present evidence.

This complaint was heard along with ADJ-00052184.

Anonymisation

Due to the vulnerability of the Complainant in this case, a decision has been made to anonymise the Complainant’s name. I have extended this decision to the witness who gave evidence on the Complainant’s behalf due to his proximity to the Respondent. Where there was no appearance on behalf of the Respondent, no submission was received on its behalf. Consequently, the Respondent is named.

The Complainant was an employed as a Chef de Partie with the Respondent.

Preliminary Issue

The Complainant sought an extension of time on the basis that he was especially vulnerable. It was submitted that, as the holder of an employment permit, he was not permitted to change employers and was entirely dependent on the Respondent for his accommodation, immigration status, and livelihood in Ireland. He also stated that he was subjected to threatening behaviour by the Respondent. When he was dismissed from his employment, he was under the care of his doctor and was obliged to apply for a valid permit under the Reactivation Employment Permit Scheme.

Substantive Complaint

It was the Complainant’s evidence that he worked for the Respondent from 16 August 2021 until his dismissal on 18 October 2023. He stated that he held a work permit with the Respondent listed as his employer.

It was his oral evidence that he worked in two locations: Solo Mobile in Limerick City, where he worked from 8:00 AM to 5:30/6:00 PM six days a week. After finishing at the mobile shop, he continued working as a delivery driver for Mixed Spice 3 in 1 in Limerick City from 6:00 PM until 2:30/3:00 AM, seven days a week. The Complainant also stated that he lived at the location of the mobile phone shop.

From 31 August 2021 until 15 April 2023, the Complainant gave evidence that, when he was not working or living at Solo Mobile, he worked in another of the Respondent’s mobile phone shops, Tech More Gadgets, located in Templemore, Co. Tipperary. There, he worked six days a week from 9:00 AM to 7:30 PM as a shop attendant and mobile phone technician.

On occasion, he also worked Sundays at a fourth business owned by the Respondent, Five Star Kebab and Pizza in Castleconnell, Co. Limerick, from 7:00 PM to 12:00 AM.

The Complainant stated that he did not receive wages from the Respondent. Instead, the Respondent provided him with accommodation, one free meal per day, and a car with insurance. He described having to "beg for money" from the Respondent and being given amounts ranging from €10 to €50 on an irregular basis. It was the Complainant’s evidence when he worked in Templemore, he was forced to rely on the generosity of a local restaurant to feed him where he was unable to buy food for himself.

CA-00062799-001 - Organisation of Working Time Act, 1997

It was the Complainant’s evidence that he did not receive any form of a Sunday Premium for the Sundays he worked.

The witness gave evidence of the Complainant’s working hours.  

CA-00062799-002- Payment of Wages Act, 1991

The Complaint was withdrawn at the hearing.

CA-00062799-003 - Organisation of Working Time Act, 1997

The Complainant gave evidence that he did not receive paid annual leave.

CA-00062799-004 - Organisation of Working Time Act, 1997

The Complainant gave evidence that he did not receive his public holiday entitlements.

CA-00062799-005 - Organisation of Working Time Act, 1997

The Complainant’s evidence was he worked for 9 consecutive hours without an adequate break.

The witness gave evidence of the Complainant’s working hours. 

CA-00062799-006 - Organisation of Working Time Act, 1997

The Complainant gave evidence that he worked in excess of the maximum weekly working hours.

The witness gave evidence of the Complainant’s working hours. 

CA-00062799-007 – Organisation of Working Time Act, 1997

It was the Complainant’s evidence that he worked 7 days per week without a day off.

The witness gave evidence of the Complainant’s working hours. 

CA-00062799-008 – Unfair Dismissal Act, 1977

The Complainant gave evidence that he was dismissed from his employment summarily by the Respondent without having regard for fair procedures on 18 October 2023.

CA-00062799-009 – Minimum Notice & Terms of Employment Act, 1973

It was the Complainant’s evidence that where he commenced employment on 16 August 2021 he was entitled to two weeks’ notice which he was not provided with.

CA-00062799-010 - Payment of Wages Act, 1991

The Complaint was withdrawn at the hearing.

I am satisfied that the Respondent was on notice of the complaint.

After waiting a reasonable period of time for the Respondent to attend at the hearing, it proceeded with the Complainant’s evidence.

Preliminary Point

It is first necessary to decide on whether the Complainant meets the test for an extension of time where an application has been made.

The time limits for submitting complaints under the Workplace Relations Act 2015 are set out in Section 41 (6 ) of the Workplace Relations Act 2015 : -

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The time limit set out in the Unfair Dismissals Act provides at Section 8 (2):-

(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause”

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows;

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.

In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Having regard to all the particular circumstances of this complaint where the Complainant, who is Pakistani, and  provided credible evidence of his excessive working hours, the fact both intimidation and financial threats were made against his family if he did not work for the Respondent, his total dependency on the Respondent in terms of his accommodation and employment, who he was taken advantage of and his medical condition after his termination, it is therefore accepted that there was reasonable cause to allow for an extension of time.

Consequently, where a Complaint Form was received by the Workplace Relations Commission on 13 April 2024, the cognisable period for the complaint under the Organisation of Time Act 1997, Payment of Wages Act 1991 and Unfair Dismissal Act 1969 falls between 14 April 2023 – 13 April 2024 of which the Complainant was on annual leave from 16 April 2023 until 16 June 2023, had no work between 17 June 2023 until 10 July 2023. I find based on the evidence presented he worked 14.5 weeks from 10 July 2023 until 18 October 2023, the date he was dismissed.

CA-00062799-001 - Organisation of Working Time Act, 1997

Section 14 of the Organisation of Working Time Act 1997:-

14.—(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”

I accept the undisputed evidence of the Complainant. It is found that he worked 14 Sundays during consignable period of the complaint where Sunday was a normal day of work for him.

I find the complaint well founded.

CA-00062799-002- Payment of Wages Act, 1991

The Complaint was withdrawn at the hearing.

CA-00062799-003 - Organisation of Working Time Act, 1997

Section 19 of the Act provides for the entitlement for annual leave:-

“19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

The Complainant did have a contract of employment but there was no clause relating to annual leave. Therefore, I am applying the statutory annual leave allowance.  The leave year is defined in Section 1 of the Act as “leave year” means a year beginning on any 1st day of April”.

I find the Complainant had 9 weeks annual leave from 16 April 2023 until 16 June 2023. The total number of days taken by the Complainant exceeds the statutory allowance of 4 working weeks plus 1 day given the consignable period.

It is further accepted that he was paid the total sum of €2,900 during this period based on the bank statements presented. Where the payment sum exceeds the statutory payment of €11.30 per hour of 4 working weeks plus 1 day in the leave year within the cognisable period, I find the complaint is not well founded.  

CA-00062799-004 - Organisation of Working Time Act, 1997

Section 21 of the Act provides:

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.”

The Complainant’s evidence of the public holidays he worked was clear. There was no evidence from the Respondent to the contrary. The onus is on the Respondent to maintain records of working hours pursuant to Section 25 of the Organisation of Working Time Act 1997.

It is found that he either worked or was entitled to payment for May, June and August public holidays during consignable period of the complaint.

Consequently, I find the complaint well founded.

CA-00062799-005 - Organisation of Working Time Act, 1997

Section 12 of the Act provides:

12.—(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. Organisation of Working Time 1997.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).”

I found the Complainant’s evidence contradictory in relation to this complaint. The oral evidence presented at the hearing differed from the calculations of hours worked in the submission. Additional time was given to the Complainant to file updated details of his working hours due to the complexity of hours worked in different locations on different dates. This submission provided for a 30 minute daily break based on a 9 – 9.30 hours per day which aligned with his oral evidence at the hearing.

He also accepted that he would occasionally get a 30 minute break to eat in the restaurant or buy food from the local Spar.

Having regard for the evidence presented, I find the complaint is not well founded.

CA-00062799-006 - Organisation of Working Time Act, 1997

Section 15 of the Act provides:

“15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.”

The Complainant’s evidence was documented and presented at the hearing of hour worked in each of the locations he worked during the consignable period averaged between 56 – 60 net hours per week taking into account of the breaks.

Consequently, I find the complaint is well founded.

CA-00062799-007 - Organisation of Working Time Act, 1997

13.—(1) In this section “daily rest period” means a rest period referred to in section 11.

“(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period Organisation of Working Time 1997.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.”

I accepted evidence of the Complainant and find that he was required to work between 6 and 7 days without the required weekly rest period of at least 24 consecutive hours.

Consequently, I find the complaint is well founded.

CA-00062799-008 – Unfair Dismissal Act

The Complainant’s evidence is accepted where he was summarily dismissed without having regard for due process or fair procedures by the Respondent.

I find the Complainant was unfairly dismissed by the Respondent.

In terms of mitigation of loss, the Complainant was unemployment from the date of dismissal without any social welfare supports until he was able to secure a new employment permit under the Reactivation Employment Permit Scheme. He commenced his new employment on 11 March 2024.

CA-00062799-009 - Minimum Notice & Terms of Employment Act, 1973

Section 4 of the Minimum Notice & Terms of Employment Act, 1973 provides: -

“4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks”

In the absence of any evidence from the Respondent, I find the Act was contravened.

CA-00062799-010 - Payment of Wages Act, 1991

The Complaint was withdrawn at the hearing.

CA-00062799-001 - Organisation of Working Time Act, 1997

Section 27 (3) of the Organisation of Working Time Act 1997 provides for redress: -

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount

(if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

Following the Labour Court’s determination in the Chicken and Chips Limited t/a Chicken Hut and Malinowski, DWT159, where the Complainant worked in a similar industry, I am awarding the Complainant compensation in the sum of €417.76 for the breach of the 1997 Act. The award is based on €3.73 being a premium of 33% of the intended minimum wage hourly rate of €11.30 over a normal working day of 8 hours for 14 Sundays worked.

CA-00062799-002- Payment of Wages Act, 1991

The Complaint was withdrawn at the hearing.

CA-00062799-003 - Organisation of Working Time Act, 1997

I find the complaint is not well founded.

CA-00062799-004 - Organisation of Working Time Act, 1997

I find the complaint is well founded.

Applying section 27 (3) of the Organisation of Working Time Act 1997 I award the Complainant compensation in the sum of €500 having regard to the number of public holidays the Complainant worked without any compensation.

CA-00062799-005 - Organisation of Working Time Act, 1997

I find the complaint is not well founded.

CA-00062799-006 - Organisation of Working Time Act, 1997

I find the complaint is well founded.

Section 27 (3) of the Organisation of Working Time Act 1997 provides for redress where a complaint is well founded.

Having regard for the excessive hours of work of between 56-60 hours per week, I award the Complainant compensation in the sum of €5,062.40 which is equivalent to an extra day payment each week during the consignable period he worked at the demand of his employer.

CA-00062799-007 - Organisation of Working Time Act, 1997

I find the complaint is well founded.

Section 27 (3) of the Organisation of Working Time Act 1997 provides for redress where a complaint is well founded.

Having regard for the Complainant’s expected 6 to 7 working days, every week, I award the Complainant compensation in the sum of €5,062.40 which is equivalent to an extra day payment each week during the consignable period he worked at the demand of his employer.

CA-00062799-008 – Unfair Dismissal Act 1977

I find the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the jurisdiction for redress for unfair dismissal. Having regard for the circumstances of this complaint and the breakdown in relationship between the parties, compensation is the most suitable form of redress in this instance.

In accordance with Section 7 (c) (ii) I find the Complainant did not incur any financial loss in the circumstances where he did not have a valid employment permit from the date of dismissal up until “some months later” when he secured a new employment permit though the Reactivation Employment Permit Scheme and obtained new employment in 2024.

Having regard to the evidence before me, I find it is fair and reasonable to award the Complainant compensation of the maximum amount provided for under Section 7 (c) (ii) of four weeks remuneration of €1,808 gross.  

CA-00062799-009 - Minimum Notice & Terms of Employment Act, 1973

Section 12 (1) of the Minimum Notice and Terms of Employment Act 1973 provides redress in the following terms:

“12. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention”

I find there was a contravention of the Act and direct the Respondent to pay the Complainant compensation in the sum of €1,084.80 based on the limited evidence of loss sustained by reason of the contravention.

CA-00062799-010 - Payment of Wages Act, 1991

The Complaint was withdrawn at the hearing.

Minimum Wage – Annual Leave – Excessive Working Hours – Public Holidays- Unfair Dismissal – Payment of Wages- Working Time