Complainant

Respondent

Parties

Adisa 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-00064024-001

10/06/2024

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

CA-00064024-002

10/06/2024

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

CA-00064024-003

10/06/2024

Ms Ajredini (“the complainant”), commenced employment with San Siro Limited, trading as Browne’s Steakhouse in Blanchardstown, on May 26th 2019.  She was a member of the waiting staff and she worked 21.5 hours per week.  She provided a written statement to the WRC in advance of the hearing.  Copies of payslips appended to her submission show that, in 2020, 2021 and 2022, she earned €10.50 per hour, including hours worked on Sundays.  A payslip dated October 10th 2023 shows that she earned €12.00 per hour and €12.50 for working on Sundays.

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.  She said that they expected to be invited to a meeting, but nothing happened.  She was unemployed and on jobseekers’ benefit and she used up all her savings before she found another job in September 2024.  She said that she now works for Ryanair.

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 May 24th and when she got no response, on June 10th 2024, she submitted these complaints to the WRC.

The complainant said that, until 2023, when she worked on Sundays, she got no additional allowance.  When she worked on public holidays, she got no extra pay.  When the restaurant closed on a public holiday, such as Christmas Day and December 26th, she received no benefit for the public holiday.

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.

CA-00064024-001:  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 four years of service, is entitled to two 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-00064024-002:  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 on Sundays until 2023.  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.  Her payslips indicate that she worked every Sunday for between five and 11 hours and, therefore, 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 for a total of approximately 200 hours. 

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.  From 2023 onwards, the complainant received an additional 50 cents per hour for working on Sundays, equivalent to 4% of her hourly rate of €12.00.  Taking my authority from the Labour Court in the decision referred to above, I find that this was not reasonable and that a more reasonable allowance was €4.00 per hour. 

CA-00064024-003:  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 the duration of her employment she worked on public holidays.  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-00064024-001:  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 26th 2019 until December 24th 2023 and her weekly pay of €258.00.

In accordance with section 4 of the Minimum Notice and Terms of Employment Act 1973, the complainant is entitled to four weeks’ notice.  I therefore direct the respondent to pay the complainant compensation of €1,032.  As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC.

CA-00064024-002:  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 €700.00, equivalent to an additional €3.50 per hour for working 200 hours 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-00064024-003:  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 €400.00 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