ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002367
Complaints for Resolution:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00003199-002 | 15th March 2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003199-003 | 15th March 2016 |
Date of Adjudication Hearing: 1st July 2016
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 15th March 2016, the complainant made complaints to the Workplace Relations Commission pursuant to the Terms of Employment (Information) Act and the Organisation of Working Time Act. These complaints were sent to adjudication. The complainant also referred a complaint for inspection pursuant to the National Minimum Wage Act, and this issue does not form part of this adjudication.
The complainant is a waiter and the respondent is a restaurant. The complaints were scheduled for adjudication on the 1st July 2016. The complainant attended in person. The respondent was represented by Andrew Freeman, solicitor of Sean Costello Solicitors. A company director and an accountant attended as witnesses for the respondent.
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Complainant’s Submission and Presentation:
The complainant outlined that he commenced employment with the respondent on the 19th August 2015 and this came to an end on the 15th January 2016. He had seen a notice on the restaurant window looking for waiting staff. He handed in a CV and started working on the 19th August. He supplied his own uniform. He received his first pay after two weeks’ working for the respondent and received one week’s pay as a week was kept in arrears. He stated that he was paid cash and the respondent had promised to register him for tax. This never occurred. There were later occasions in which he was paid by cheque. The complainant outlined that he worked 72 hours per week and that his weekly remuneration was €250. He worked 12-hour shifts, commencing at 11am and finishing at 1.30am the following day. It could be later at weekends.
Responding to the evidence of the respondent, he denied that the roster supplied by the company director was a true document and denied that he had actually started working in November 2015. He said that he first met the company director on the 23rd August 2015. As part of his claim, the complainant outlined that he had not been supplied with a contract of employment or a statement providing the terms of his employment. He had worked public holidays, including the October public holiday, Christmas Day, St Stephen’s Day and New Year’s Day. He had also not received any annual leave and claimed 8% of the 1,300 hours he had worked.
Respondent’s Submission and Presentation:
The respondent outlined that the complainant began working on the 2nd November 2015 and this came to an end on the 11th January 2016. It accepted that no written terms or contract had been provided to the complainant but that it had only been one week out in complying with the statutory requirement. The complainant had been taken on during the busiest period of the year and the respondent would have regulated matters in the early new year. The respondent acknowledged that it owed the complainant €195.05 for his annual leave entitlement. A cheque had been sent to him and returned. He was also owed public holidays.
The company director outlined that he first saw the complainant at the restaurant on the 2nd November 2015. He was not satisfied with his performance and that he had supplied a reference from a restaurant that had closed many years previously. He only worked two or three shifts a week. The company director handed in a ledger contained handwritten weekly rosters from the week of the 12th October 2015.He outlined that the roster showed that the complainant had commenced employment in early November and that he did not do as many hours as he claimed. He accepted that neither pay slips nor work records had not been issued by the respondent. The company director said that the complainant was paid the national minimum wage and that his average weekly wage was €250.
Findings and reasoning:
The complainant is a waiter and the respondent is a limited company and operates a restaurant. The claim relates to the failure of the respondent to comply with the Terms of Employment (Information) Act and the Organisation of Working Time Act, specifically the failure to provide paid annual leave and for public holidays the complainant worked. The respondent accepts that the complainant is owed monies for unclaimed annual leave and for public holidays. There is a sharp divergence between the parties as to when the complainant commenced employment as well as to the number of hours he worked.
The first issue to address is the date of commencement of the complainant’s employment. I find as fact that this date is the 19th August 2015. I base this finding on the evidence of the complainant and the absence of any contradictory, objective evidence from the respondent. The handwritten ledger is not of sufficient evidential weight. I have regard to the documentation an employer ought to generate at the commencement of an employee’s employment and not available here.
I next address the claim made pursuant to the Terms of Employment (Information) Act. The respondent did not supply the complainant with a written statement of terms of employment as required by section 3 of the Act. Taking the complainant’s weekly remuneration at €250, I make an award of €1,000, this being the equivalent of four weeks’ remuneration.
The claim pursuant to the Organisation of Working Time Act relates to annual leave and public holidays. The respondent accepts that there is liability to this claim, albeit for a shorter period of employment. The complainant claims annual leave compensation of 8% for all hours worked. Section 19 provides that an employee is entitled to paid annual leave of four weeks in a leave year, or, at section 19(1)(c), to 8% of hours worked in a leave year but this is subject to a maximum of four working weeks. Given the duration of the complainant’s employment with the respondent, his pro rata entitlement to paid annual leave is in the amount of €410 and he is awarded this. There were four public holidays during the complainant’s employment with the respondent and he is awarded €143 as redress.
Taking the awards together, the respondent shall pay €1,553 to the complainant, this being the sum of €1,000 awarded for the breach of the Terms of Employment (Information) Act and €553 awarded for unpaid annual leave and public holidays.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
In respect of the findings reached above, the respondent shall pay to the complainant €1,553, this being redress for breaches of the Terms of Employment (Information) Act and the Organisation of Working Time Act.
Dated: 16th August 2016