Complainant

Respondent

Parties

Vjola Ajredini

San Siro Limited, trading as Browne’s Steakhouse

Representatives

Self-represented

The respondent did not attend and was not represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00064025-001

10/06/2024

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

CA-00064025-002

10/06/2024

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

CA-00064025-003

10/06/2024

Ms Ajredini (“the complainant”), commenced employment with San Siro Limited, trading as Browne’s Steakhouse in Blanchardstown, on March 13th 2007.  After two months, she was promoted to the role of general manager.  She generally worked from Wednesday to Sunday, with Mondays and Tuesdays off, except for public holidays that fell on Mondays, when she said that she always worked.  She said that she was generally required to work around 50 hours per week.

Browne’s Steakhouse ceased trading on December 24th 2023, following a violent assault that ended with the death of two customers.  Despite her best efforts, the complainant said that she has had no contact with the owner, Mr Gregory Browne, concerning her claim for a redundancy payment.

In advance of the hearing, the complainant submitted a written statement to the WRC, setting out her complaints regarding her employment in Browne’s Steakhouse.  She complained that, regardless of the number of hours or days that she worked, she received the same pay every fortnight, €1,538.46 gross, which is equivalent to €40,000 per annum.  She said that on many fortnights, she didn’t get a payslip, and she got no payslips for the last three months of her employment.

The complainant said that, for the 16.5 years that she worked for Mr Browne, she worked every single Sunday and every public holiday that fell on a Monday.  She got no Sunday allowance and no additional pay for the public holiday, even though, in the week of a public holiday, she worked for six days.  When the restaurant closed on a public holiday, such as Christmas Day and December 26th, she received no benefit for the public holiday.

From November 2013 until March 2020, the complainant said that she worked three split shifts every week from 10.00am until 3.00pm and from 5.00pm until closing time, without any additional compensation.  Ms Ding, who was an assistant manager during this time, confirmed that the complainant was rostered for these split shifts.

When the restaurant was preparing to open after the Covid-19 restrictions, the complainant said that she was rostered to clean the restaurant.  She did this without any help, dealing with rotting food that had been left on the premises during the closure.  She said that Mr Browne treated these three days as holidays.  She produced a payslip dated October 17th 2021 that shows that she was paid for three days’ holidays in the fortnight that ended on that date.

Mr Browne ran two restaurants, Browne’s Steakhouse in Blanchardstown and Castello Bruno in Castleknock.  From October 23rd 2021, when the restaurants re-opened after Covid-19 restrictions, the complainant said that she worked day shifts in Castello Bruno and night shifts in Browne’s Steakhouse, without any change in her salary.  In July 2022, she said that she worked six days each week for three weeks, handling opening and closing duties, again at the same salary.  She said that she generally worked more than 40 hours per week, always for the same wages.

The complainant said that if a customer left the restaurant without paying their bill, the staff had to cover the loss from their tips.  Each night, €20 was deducted from tips to cover the cost of broken glasses.  When the amount earned in tips wasn’t adequate, the complainant said that the staff had to make up the cost of the breakages themselves.

Since the attack in the restaurant on Christmas Eve 2023, the complainant said that she has been unemployed and on illness benefit.  She said that, because of the incident, she had to get treatment for severe anxiety.

After the attack, the complainant said that Mr Browne contacted her on December 28th about plans for re-opening on New Year’s Eve.  She said that she was traumatised because of what happened and she didn’t feel well enough to go back.  She said that Mr Browne demanded the keys back and her husband returned them.

In any event, the restaurant didn’t re-open and the complainant said that Mr Browne didn’t contact the employees to inform them about their entitlement to redundancy pay or notice of the termination of their employment.  In May 2024, the complainant said that she contacted the WRC and she was advised to complete an RP77 form and to send it to Mr Browne by registered post.  She said that she did this on June 10th 2024 and she has received no response.

CA-00064025-001:  Complaint under the Redundancy Payments Act 1967

Section 7 of the Redundancy Payments Act 1967 sets out five specific circumstances in which an employee may be entitled to a redundancy payment, the first of which is:

“(a) the fact his employer has ceased or intends to cease to carry on the business for the purpose of which the employee was employed by him, or has ceased or intends to cease to carry on that business in the place where the employee was so employed[.]”

As the complainant’s employer has ceased operations in the place where she was employed, her job has become redundant.  As she has completed more than two years of service, she is entitled to a redundancy payment.

Section 4 of the Minimum Notice and Terms of Employment Act 1973, provides that an employee, such as the complainant, with more than 10 years of service, is entitled to four weeks’ notice from her employer in the event of the termination of her employment.  As the complainant received no notice, she is entitled to be paid in lieu of notice.

CA-00064025-002:  Entitlement to a Sunday Allowance

Section 14 of the Organisation of Working Time Act 1997 provides that employees who are required to work on Sundays will be paid,

1.       An allowance “of such an amount as is reasonable;” or,

2.       By having their weekly pay increased “by such an amount as is reasonable;” or,

3.       By getting time off from work “as is reasonable…” or,

4.       A combination of two or more of the above.  

The complainant said that she received no allowance for working every Sunday for 16.5 years.  At the hearing, I explained that, in accordance with s.41(6) of the Workplace Relations Act 2015, the timeframe for which I have authority to investigate a complaint about a Sunday allowance is confined to the six months before the complaint was submitted to the WRC.  For reasonable cause, in accordance with s.41(8) of the Workplace Relations Act, I may extend the time limit to 12 months.  The complainant submitted this complaint to the WRC on June 10th 2024.  I am satisfied that the attack on the restaurant in December 2023 and her employer’s failure to contact her in the months afterwards is sufficient as an explanation of reasonable cause for the delay and I have decided to extend the time limit to 12 months. 

I have decided therefore, to consider the complainant’s entitlement to a Sunday allowance from June 11th 2023 until her last day at work on December 24th 2023.  Taking account of three weeks’ holidays that she may have taken, I estimate that, between Sunday June 11th and Sunday December 24th 2023, she worked on 27 Sundays. 

In a 2015 decision in Chicken and Chips Limited trading as Chicken Hut v David Malinowski[1], the Labour Court decided that a premium of 33% for working on Sundays was reasonable in the sector.  As her annual salary was €40,000, I have calculated that the complainant’s daily rate of pay was €173.00 (€40,000 ÷ 231 days).  I find therefore that she was entitled to be paid an additional allowance of €57.10 per day for working on 27 Sundays. 

CA-00064025-003:  Public Holiday Entitlements

Section 21 of the Organisation of Working Time Act 1997 sets out the entitlement to public holidays:

(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.

In her evidence, the complainant said that, for 16.5 years, she worked on every public holiday that fell on a Monday.  Like her complaint regarding Sunday working, I have decided that there was reasonable cause for the delay submitting this complaint.  I have decided therefore, to consider the complainant’s entitlement to a public holiday premium from June 11th 2023 until her last day at work on December 24th 2023.  I must also take account of s.23(2) of the Organisation of Working Time Act which deals with public holiday entitlements at the termination of employment:

(2) Where-

(a) an employee ceases to be employed during the week ending on the day before a public holiday, and

(b) the employee has worked for his or her employer during the 4 weeks preceding that week,

the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day’s pay calculated at the appropriate daily rate. 

As the complainant’s employment ceased on December 24th 2023, she is entitled to the benefit of the public holidays that fell on December 25th and 26th 2023.

I find therefore that, in accordance with s.21 and s.23(2) of the Organisation of Working Time Act, the complainant is entitled to an additional day’s pay for working on four public holidays that fell on August 7th, October 30th and December 25th and 26th 2023.

CA-00064025-001:  Complaint under the Redundancy Payments Act 1967

Subject to her PRSI contribution status, I have decided that the complainant is entitled to a statutory redundancy payment based on her service from May 13th 2007 until December 24th 2023 and her weekly pay of €769.23, subject to the statutory ceiling of €600 per week.

In accordance with section 4 of the Minimum Notice and Terms of Employment Act 1973, the complainant is entitled to eight weeks’ notice.  I therefore direct the respondent to pay the complainant compensation of €6,154.  As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC.

CA-00064025-002:  Complaint under the Organisation of Working Time Act 1997

I decide that this complaint is well founded and I direct the respondent to pay the complainant €1,542 as compensation for working on 27 Sundays between June 11th and December 24th 2023.  As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC.

CA-00064025-003:  Complaint under the Organisation of Working Time Act 1997

I decide that this complaint is well founded and I direct the respondent to pay the complainant €692.00 as compensation for her entitlement to a benefit for four public holidays that fell on August 7th, October 30th and December 25th and 26th 2023.  As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC.

Business closure, redundancy, pay in lieu of notice