ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009257
Parties:
| Complainant | Respondent |
Anonymised Parties | A Porter | A Hotel |
Representatives | Dan O'Connor Terence F Casey & Co |
|
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00011918-001 | 15/06/2017 |
Date of Adjudication Hearing: 22/09/2017
Workplace Relations Commission Adjudication Officer: Caroline McEnery
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant is a night porter and the claim is in respect of gratuities that are paid by tour operators and by other patrons. The Complainant claims that gratuities were not being paid to him or to any other porters or other staff in the hotel but that they should be paid to them.
Summary of Complainant’s Case:
The Complainant states that the claim relates to gratuities for porters for bags that would have been taken to guestrooms for the guests. The Complainant stated that other porters will be waiting to see what the outcome of this claim will be.
In the case there was a book presented which sets out the envelopes and tips that have been handed in. This gives an account of the tips paid in by coaches also who paid in and out per bag. The Complainant stated that there is usually 40 bags per coach and that there is tips per coach as a result. The Complainant stated that there is generally 3 coaches per week. There was 2 night porters working so claim is for 50% of this for the year that the Complainant was working there. The amount they suggest was €25, 000 approximately due based on these tips.
The Complainant raised this matter with his manager and clarified that he or the other porter or restaurant staff didn’t receive tips.
The Complainant raised this matter three times internally and was told by the Respondent not to cause trouble.
When the Complainant started his employment he expected to be paid tips but there’s no reference of tips in his contract of employment.
The Complainant stated the reason he put the claim in is on behalf of his colleagues who may be married or afraid to make a claim.
The Complainant stated the money isn’t important to him but it is a lot of money involved and he wants to know where that cash is gone.
The Complainants representative stated that an amount of money had been offered by the Respondent to the employee to resolve the matter but it wasn’t accepted by the complainant.
Summary of Respondent’s Case:
The Respondent stated that tips are used to fund the end of season night out. The Respondent stated that they didn’t have a night out last year but that they are having a night out this year.
The Respondent queried if it was legal for the Complainant to copy the tips book.
The Respondent presented rosters which suggest the Complainant worked 2 to 3 days a week and on occasion 4 days a week and confirmed that 20 hours would be the normal average hours worked by the porter.
The Respondent stated that others assisted with bags and he was only responsible for taking the bags in. The Respondent stated they have other operators but that they don’t pay tours fees for the bags. This arrangement is only with certain tour operators.
The Respondent stated that tips have never been paid to employees in the hotel.
Findings and Conclusions:
The key question here is if tips are considered wages under the Payment of Wages Act.
There is no reference of tips in the Complainants employee contract and his remuneration is clearly outlined as an hourly rate.
This contract was signed by the Complainant on the 12th of August 2016 a few weeks after he commenced his employment.
Section 1 Payment of Wages Act 1991 defines the word ‘wages’.
“wages”, in relation to an employee, means 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, and
(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:
Provided however that the following payments shall not be regarded as wages for the purposes of this definition
(i) any payment in respect of expenses incurred by the employee in carrying out his employment,
(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,
(iii) any payment referable to the employee's redundancy,
(iv) any payment to the employee otherwise than in his capacity as an employee,
(v) any payment in kind or benefit in kind.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Considering the findings the Adjudicator finds that ‘tips’ are not wages payable within the meaning of Section 1 of the Act.
Therefore my decision is the complaint fails.
Dated: 15th November 2017
Workplace Relations Commission Adjudication Officer: Caroline McEnery
Key Words:
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