Complainant

Respondent

Parties

Evan  O'Toole

Neighbourhood Restaurant

Act

Complaint Reference No.

Date of Receipt

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

CA-00068147-001

16/12/2024

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

CA-00068522-001

09/01/2025

CA-00068147-001 – PWA

The complainant was hired as a junior Sous Chef by the respondent commencing on July 10th, 2024, at salary of €40,000 p.a. plus tips. He did not receive a contract of employment or statutory statement of his terms of employment.

On September 9th, 2024, he resigned giving two weeks’ notice finishing on Sunday 22nd, September 2024

On taking up employment he had worked a back week and received his first payment on July 24th, 2024, for €640 and his last payment on September 18th, 2024. He only received tips for the month of July amounting to €400. Despite several requests, he never received a pay slip. According to his records, the following monies are still outstanding to him, and this was communicated to the respondent in writing:

His share of tips for August and for part of September is outstanding. He has not been advised as to the amount of tips received over that period; basing it on July, it would amount to approximately €600. Therefore, the total owed to him is approx. €2,520.00.

Despite numerous phone calls and assurances from Tom McGrath the owner, he has not received payment. He returned to the restaurant with his father on October 2nd, 2024, to try to resolve the issue and Mr McGrath once again assured him that he would receive everything he was owed.

On October 26th, 2024, he notified Mr McGrath of his intention to make a WRC complaint.

CA-00068522-001–Terms and Conditions of Employment

The weekly pay of €640 is the net amount after tax based on an annual salary of €40,000.

It is his understanding that he is deemed an employee because he received a fixed weekly wage,  worked set hours determined by the restaurant and restaurant management controlled the work he did and when he did it,

The equipment he used (with the exception of knives) was provided by the restaurant and it was responsible for arranging cover for him if he was unable to attend work he received tips for the month of July (contractors do not receive tips).

He is unable to provide a copy of the weekly roster, as the system was online and he does not have access to it anymore, but submitted his WhatsApp chat with the Head Chef, Gareth Naughton where he messaged him about doing the roster while he was on annual leave.

The complainant gave brief evidence on affirmation. He confirmed the details about his commencement with the respondent that he would be paid €40,000 and tips. He left the employment on September the 22nd and later was assured he would receive all the money due to him.

In response to the evidence below to the contrary from the respondent witnesses he insisted that he did work the week of September 15th, 2024.

The respondent, Tom McGrath give evidence on affirmation and said that he was introduced to the complainant by a mutual acquaintance. It was agreed that the complainant would work for him for a short period of six to eight weeks at €640 a week.

In relation to the complainant’s claims, he said that the ‘back week’ due to him was paid when he was taking a week off to visit the UK and approached him to say that he had no money.

In relation to the final week being claimed, the complainant did not attend for work at all that week and therefore has no entitlement to payment.

Regarding the claim under the Terms of Employment (Information) Act the respondent said that this was a very informal engagement of the complainant. It was an oral agreement for a fixed period.

However, he accepted that no statement of the terms of employment had been given.

The witness accepted that holiday pay was due to the complainant but only for seven weeks and not the nine claimed by him.

Gareth Naughton give evidence on behalf of the respondent on affirmation. The witness is Head Chef in the respondent’s restaurant.

In relation to whether the complainant was at work on the week of September 15th he says that he was not at work and that it would not have been possible for him to be at work without the witness knowing.

Brian Hughes also gave evidence on affirmation.

 Mr. Hughes is responsible for sales and marketing but also works ‘front of house’.

He confirms that he too would have known if the complainant had been at work on the week in question and that it would not it would not have been possible for him to be there without Mr. Hughes knowledge.

He confirms that the complainant was not at work.

In relation to the claim for outstanding wages the complainant now claims two weeks’ pay, somewhat reduced from earlier claims. This relates to his first week arising from the practice in some employments where wages are withheld (a ‘back’ or ‘lying’ week).

The respondent says that he gave the complainant this money when he told him he was short of money for a trip to the UK. The complainant only weakly protested at this and did not seriously challenge it.  I accept the respondent‘s evidence on this point.

His position in relation to the second week is in a different category to ‘weakly protesting’.

Despite being put on notice that there would be evidence to the effect that he was not at work at any time during the week of September 15th he persisted with asserting that he had been.

Three witnesses gave evidence to the effect that he was not at work, and it is hard to understand the complainant’s insistence under oath to the contrary.

I again accept the respondent witnesses’ evidence on this point and, taken with Mr McGrath’s evidence in respect of the first week I find that no wages are due to the complainant and that aspect of the complaint is not well founded.

I will leave the matter of the complainant’s untruthful evidence to one side.

The respondent concedes that payment for annual leave is due but only for seven weeks, not the nine claimed. Again, taking account of the unreliability of the complainant’s evidence I accept that of the respondent.

In respect of the complaint under the Terms of Employment (Information) Act the complaint succeeds.

The respondent entered into what he regarded as an informal arrangement for a short period and did not see the need to put anything in writing. Unfortunately for this relaxed approach it does not comply with the law, specifically the Act under which this complaint was made.

The following information is a summary taken from the WRC website where the full requirements may be found, and it may be useful to replicate it here.

The Terms of Employment (Information) Act, 1994 (as amended) provides, among other matters, for the issue to employees of certain statements of terms of employment. These statements are as follows:

Day 5 Statement,

Written statement of terms of employment

Statement to employee required to work outside the State

Statement issued on request to employees who held a contract before 16 December, 2022

Statement issued on request to employees who held a contract before commencement of the 1994 Act (16 May 1994)

Since 16 December 2022, new legislation introduced an expanded definition of “contract of employment” and, therefore, the Act applies to any person

Working under a contract of employment or apprenticeship,

Working under any other contract whereby an individual agrees with another person personally to execute any work or services for that person, 

5 Statement of Terms (Section 3(1A) Statement)

An employed through an employment agency,

where an individual agrees with a person carrying on the business of an employment agency to do or perform personally any work or service for another person (whether or not the other person is a party to the contract), or

in the service of the State (including members of the Garda Síochána and the Defence Forces, civil servants and employees of any local authority, health board, harbour authority or vocational education committee.

In the case of agency workers, the party who pays the wages is the employer for the purposes of this Act and is responsible for providing the written statement.

Day employer must notify each new employee, in writing, within five days of commencement of employment, of the following core terms of employment:

1.              the full names of the employer and the employee.

2.              the address of the employer or of the principal place of business in the State;

3.              the place of work, or where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

4.              the title, grade, nature or category of work for which the employee is employed or a brief description of the work;

5.              the date of commencement of the contract of employment.

6.              the duration and conditions relating to a probationary period, if applicable;

7.              the expected duration of the contract, in the case of a temporary contract, or the end date if the contract is a fixed-term contract.

8.               the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act, 2000.

9.              the number of hours the employer reasonably expects the employee to work per normal working day and per normal working week;

10.          any terms and conditions relating to hours of work (including overtime);

11.          If applicable, the employer’s policy on the manner in which tips or gratuities and mandatory charges are treated.       

Written Statement of Terms (Section 3(1) Statement)

An employer must also provide each new employee with a written statement of terms of employment within one month of commencement of employment. The written statement must include simple information such as, the full names of the employer (and address) and the employee, periods of notice etc (some thirteen items in all)

This is a statutory obligation falling on an employer.

And while the information required might be seen to be of an administrative nature its actual significance goes far beyond this as it essentially defines the terms of the working relationship between the parties. (Parties may of course go beyond these terms in a contract of employment but this is the minimum required by statute.)

Accordingly, this complaint is upheld.

Complaint CA-00068147-001 under the Payment of Wages Act is partially upheld only insofar as it concerns the complainant’s annual leave entitlement. He is entitled to be paid annual leave based on a calculation of seven weeks’ service.

His claims for unpaid wages are not well founded.

For the breach of his rights under the Terms of Employment (Information) Act he should be paid compensation in the amount of €150.00

Annual Leave, Terms of Employment