Complainant

Respondent

Parties

Moegamat  Jacobs

Arina Ryan Limited T/A Bella Cafe

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00065252-001

30/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00065252-002

30/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00065252-003

30/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00065252-004

30/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00065252-005

30/07/2024

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

CA-00065252-006

30/07/2024

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

CA-00065252-007

30/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00065252-008

30/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065252-009

30/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00065252-010

30/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00065252-011

30/07/2024

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

CA-00065252-012

30/07/2024

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

CA-00065252-013

30/07/2024

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

CA-00065252-014

30/07/2024

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

CA-00065252-015

30/07/2024

The Complainant stated that he commenced employment as a Chef with the Respondent on 24 June 2024. He left his employment on 17 July 2024 because he had not been treated properly by the Respondent in relation to many aspects of his employment. He subsequently filed several complaints to the WRC alleging various breaches of employment legislation.  

I have set out the Complainant’s evidence in the findings and conclusions below.

I have set out the Respondent’s evidence in the findings and conclusions below.

CA-00065252-006:

The Law

The Terms of Employment (Information) Act 1994, as amended, (the “TE(I)A”) sets out the basic terms of employment which an employer must provide to an employee in written form. Section 3(1) of the TE(I)A also obligates an employer to provide employees with a statement in writing concerning other aspects of an employee’s terms and conditions of employment within two months of commencing employment. This provision was recently amended to indicate one month.

Findings:

As the Complainant left his employment within one month of commencing his employment, I find that this complaint is not well founded.

CA-00065252-007:

I have found, as set out in CA-00065252-006 and CA-00065252-015 that the Complainant did not receive a copy of his written terms and conditions of employment. Accordingly, there cannot have been any changes to a document that I have found was not presented to him. I find therefore that this complaint is not well founded.

CA-00065252-009:

Section 6 of the Employment Equality Act states:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

Findings:

Despite persistent questioning, the Complainant was unable to identify on what ground he was discriminated against.

As he failed to identify a ground of discrimination as set out in the Act above, I find that he has failed to establish a prima facie case of discrimination.

CA-00065252-011:

Section 23 of the National Minimum Wage Act, 2000 provides:

‘23. Employee entitled to statement of average hourly rate of pay for pay reference period

(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12 month period immediately preceding the request.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150% calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of [Schedule 1],

(b) the working hours of the employee calculated in accordance with section 8,

(c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and

(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.’

Section 24 of the Act - Disputes about entitlement to minimum hourly rate of pay stipulates:

‘(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.

(2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the adjudication officer may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,’

Findings:

Section 24(2)(a) of the Act provides that a dispute cannot be referred to an Adjudication Officer under the Act unless an employee has received a statement pursuant to Section 23, or having requested such a statement, the employer has failed to provide the statement within the period of four weeks.

The Complainant had not requested a statement of average hourly rate of pay from his employer. Therefore, I find that I have no jurisdiction to deal with the matter.

I make this finding because in Mansion House Ltd v Izquierdo MWD 3/2004, the Labour Court held that, where a claimant had failed to request a statement in accordance with section 23(1) of the Act, the “appropriate course of action” was for the Rights Commissioner to decline jurisdiction without prejudice to the claimant's right to re-enter the same complaint having complied with the said subsection.

It was the Labour Court's view that a decision dismissing the claim on its merits on the basis of non-compliance with section 23(1) was neither “appropriate nor is it warranted by any provision of the Act”.

CA-00065252-012:

The Law

Section 12 of the Organisation of Working Time Act places a statutory obligation on employers to ensure that an employee is granted breaks as follows:

“(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.

(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).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2)”.

The issue at the heart of this referral is whether the Complainant received the breaks to which he is entitled under Section 12 of the Act. The Complainant alleges that he did not receive such breaks.

To demonstrate that he did get his breaks, Section 25(1) of the Act requires employers keep records to show compliance with Section 12 as follows:

“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.”

I note the Respondent’s contention that it has always complied with its obligations under Section 12 of the Act and that the Complainant got his required breaks.

In order for the Respondent to demonstrate compliance with Section 12 however, they are required under Section 25(1) to keep appropriate records unless exempted by the 2001 Regulations to do so.

This was highlighted by the Labour Court in Tribune Printing & Publishing Group v Graphical Print & Media Union (DWT 46/2004) where it was stated that:

“The Company is under a duty to ensure that the employee receives his equivalent rest period and breaks. Merely stating that the employee could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives these breaks, thus protecting his health and safety, does not discharge that duty.”

Considering all of the foregoing, I find that the complaint is well founded because the Respondent presented no documentary evidence to suggest that they kept appropriate records to show that employees are getting the breaks to which they are entitled under Section 12 of the Act.

CA-00065252-013:

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

The Complainant stated in his evidence that he was paid no money in respect of the first week that he worked for the Respondent. He stated that pay shortfall for that week amounted to €254. He further stated that although he was paid he was paid €254 for the second and third weeks, he should have been paid €419 in respect of both weeks. He stated that the Respondent therefore owed him an overall amount of €584.

The Respondent accepted that there was a shortfall in pay owed to the Complainant but stated that this was in the amount of €292.

The disagreement between the parties over the amount owed to the Complainant stemmed from a dispute about the number of hours worked. Since the responsibility to accurately record the Complainant’s working hours, as outlined in CA-00065252-012, falls on the Respondent—and they failed to do so or provide the Complainant with an employment contract specifying his hours—I find that this complaint is well-founded.

Findings:

CA-00065252-014:

Section 14(1) of the Organisation of Working Time Act, 1997 states the following:

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.

Findings:

As it was accepted that the Complainant worked on one Sunday over the course of his employment, I find that this complaint is well-founded.

CA-00065252-015:

The Terms of Employment (Information) Act, 1994, as amended sets out the basic terms of employment which an employer must provide to an employee in written format.  Section 3 (1A) obligates an employer to provide an employee with certain essential information, or core terms, in writing within five days of commencing employment. 

The Complainant stated that he did not receive a statement in writing outlining his core terms within five days of commencing employment. This was disputed by the Respondent who stated that this was available to the Complainant if he had requested.

As there was no evidence presented to suggest that the statement in writing had in fact been provided to the Complainant, I find that the complaint is well founded.

CA-00065252-001 to CA-00065252-005: These complaints were withdrawn.

CA-00065252-006: I find that this complaint is not well founded for the reasons set out above.

CA-00065252-007: I find that this complaint is not well founded for the reasons set out above.

CA-00065252-008: This complaint was withdrawn.

CA-00065252-009: As he failed to establish a prima facie case of discrimination, I find that the Complainant was not discriminated against.

CA-00065252-010: This complaint was withdrawn

CA-00065252-011: I find that I have no jurisdiction to deal with this complaint.

CA-00065252-012: I find that this complaint is well founded for the reasons set out above.

In deciding on an award of compensation, I note that the Complainant by his own admission did receive a daily break albeit not the breaks stipulated in the Act. I further note that the Complainant was only employed by the Respondent for a period of under four weeks and that the Respondent is a small enterprise.

Considering all of the foregoing, I make an award of €100 in respect of this complaint.

CA-00065252-013:

I find that this complaint is well-founded for the reasons set out above and make an award of €584. This is subject to taxation and the normal statutory deductions.

CA-00065252-014:

This complaint is well founded for the reasons set out above.

Having regard to the provisions of section 27 (3) set out above and recognising that the Complainant did not receive a premium payment in respect of the Sunday on which he worked with the Respondent, I make an award in the amount of €75 in respect of this complaint.

CA-00065252-015:

I find that this complaint is well founded for the reasons set out above.

In deciding on an award of compensation, I have regard to the fact that the Respondent is a very small enterprise and accordingly make an award of €250 in respect of this complaint.