ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012544
Parties:
| Complainant | Respondent |
Parties | Chi Woo Tang | Hong Kong Chinese Restaurant t/a International Chinese Restaurant Co Ltd |
| Complainant | Respondent |
Anonymised Parties | A Chef | A Chinese Restaurant |
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Representatives |
| David Punch & Co Solicitors |
Complaints
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016560-001 | 01/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016560-002 | 01/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016560-004 | 01/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00016560-005 | 01/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016560-006 | 01/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016560-007 | 01/01/2018 |
Date of Adjudication Hearing: 13/04/2018
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 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.
Background:
The complainant had limited English and availed of a WRC appointed interpreter. The complainant worked at the respondent as a Chef from 22nd February 2014 until he resigned on 27th January 2018. His rate of pay is detailed as 10 euro per hour and it is also detailed that he worked an average of 30 hours in an average week, over 5 or 6 days. It was detailed on his wage slip that his gross pay was approximately €300. |
Summary of Complainant’s Case CA-00016560-001:
The complainant had limited English and spoke through the use of a WRC appointed interpreter and was represented by his son. The complainant claims that he was never compensated with a premium for working any Sundays during his employment. |
Summary of Respondent’s Case CA-00016560-001:
The respondent detailed that the nature of the Chinese industry is to pay employees in cash and to pay their tax for them. He detailed that the premium for Sunday working was included in the complainant’s cash pay albeit does not appear on his wage slip. It was also detailed the complainant did not want more than €300 to appear on his wage slip. |
Findings and Conclusions CA-00016560-001:
The complainant details that he was not compensated for Sunday working. The respondent outlined that it was included in his pay albeit not detailed out in the pay slips. Section 14(1) sets out: (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. (2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.
It was very difficult to ascertain what payment the complainant received for hours worked due to what was detailed as a conflict between the wage slip and the actual wages which may have been received in cash. The Act at Section 14 requires that an employer compensate an employee in respect of a requirement to work on a Sunday. Based on all the evidence, I find that the complainant was not compensated in respect of the requirement placed upon him to work on a Sunday.
The within complaint was made to the Workplace Relations Commission on 1st January 2018. The Act, at Section 27(4), provides that a complaint must be made to the Workplace Relations Commission no later than six months following the date of the alleged contravention of the Act. The cognisable period for the within complaint is therefore 2nd July 2017 to 1st January 2018. I find that the complainant received no compensation in respect of Sunday working between 2nd July and 1st January 2018 and the claim succeeds and I award him €300 compensation. |
Summary of Complainant’s Case CA-00016560-002:
The complainant had limited English and spoke through the use of a WRC appointed interpreter and was represented by his son. The complainant claims that he was never compensated for working public holidays. However, in cross examination the complainant accepted that he received a paid day off for the benefit of his public holidays. |
Summary of Respondent’s Case CA-00016560-002:
The respondent detailed that the nature of the Chinese industry is to pay employees in cash and to pay their tax for them. He detailed that the benefit for working Public Holidays was given through a paid day off within the month albeit does not appear on his wage slip. It was also detailed the complainant did not want more than €300 to appear on his wage slip. |
Findings and Conclusions CA-00016560-002:
The complainant gave evidence that he did in fact receive the benefit of his public holidays.
On that basis, the claim is not well founded and the claim fails. |
Summary of Complainant’s Case CA-00016560-004:
The complainant stated that he never received terms of employment when he commenced employment on 22nd Feb 2014 but received a contract on 3rd March 2016. He detailed that aspects of this contract were incorrect and that he told the respondent on two occasions that he would not sign it as it was not fair. The contract was given in English, and he cannot read English. He did not receive a handbook either and never saw the handbook in the workplace. |
Summary of Respondent’s Case CA-00016560-004:
The respondent accepted that the complainant never received a contract of employment when he commenced employment but that all employees received a contract in March 2016 upon the advice of the respondent’s accountant. He asked the complainant on two occasions to return it but he never did. He denied that the complainant had issues with the contract. He also provided a copy of the respondent’s handbook to the complainant but the complainant did not want it. A copy of the handbook is available for all employees in the restaurant. When questioned whether the contract was provided in English or Chinese, the respondent detailed that it was provided to him in English as he understood that the complainant could read English. |
Findings and Conclusions CA-00016560-004:
Section 3 (1) of the Terms of Employment (Information) Act, 1994 states that an “employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the … terms of the employee's employment.”
The complainant has very limited English and cannot read English. I note that the respondent issued an English contract in March 2016 and there was no evidence that a handbook was given to the complainant and even if there was, this was also in English. I am not satisfied the respondent met their obligations in providing the complainant with his terms and conditions of employment in a way that he could understand.
I uphold the complaint and award the complainant €900.00 to be paid by the respondent. |
Summary of Complainant’s Case CA-00016560-005:
The complainant withdrew this claim. |
Summary of Complainant’s Case CA-00016560-006:
The complainant stated that he never received regular breaks and was expected to take some breaks when the restaurant was quiet. |
Summary of Respondent’s Case CA-00016560-006:
The respondent detailed that the complainant received regular breaks and albeit it was never documented when those breaks were taken, the breaks were organised by the employees including dinner breaks when all employees would sit down together and smoking breaks. |
Findings and Conclusions CA-00016560-006:
Section12 of the act details .— (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). Section 25 of the Act requires an employer to maintain records of employees’ rest breaks and working time. Where it fails to keep such records the burden of proving compliance with the provisions of the Act lies with the employer. In this case the Respondent advised that it did not keep such records and albeit they strongly disputed that the complaint did not get his breaks; the burden of proving compliance within the provisions of Section 12 of the Act lies with the employer.
Having considered all the evidence accordingly I find that the Respondent has failed to discharge the burden of proving compliance with the provision of Sections 12(1) of the Act during the relevant period.
I find that the complaint is well founded and award the complainant compensation in the sum of €500. |
Summary of Complainant’s Case CA-00016560-007:
The complainant stated that he never received his annual leave entitlement and that he was required to take it as payment during his employment |
Summary of Respondent’s Case CA-00016560-007:
The respondent detailed that the nature of the Chinese industry is to pay employees in cash and to pay their tax for them. The respondent detailed that some employees wished to be paid for their annual leave and other did not and that this was the norm within the industry. Those who did not take their annual leave were paid in lieu of it every three months including the complainant. This would not be reflected in the complainant’s wage slips as some of his payment was paid ‘under the counter’. It was detailed that the complainant did take 3 months off between June and September to return to Hong Kong. Evidence was given by Ms A, Ms B, and Mr X who were former or existing employees detailing that some employees took annual leave while others took payment in lieu of their annual leave. |
Findings and Conclusions CA-00016560-007:
The evidence given by both former and existing employees, Ms A, Ms B and Mr C regarding annual leave would support the view that some employees take annual leave and others take it in the form of as payment. Section 19 of the Act details that an employee should be entitled to annual leave equal to( a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), ( b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):
No records were put forward by the respondent outlining if or when the complainant took annual leave.
The complaint was received by the WRC on 1st January 2018, and the cognisable period covered by the claim is the six-month period which in this instant case is from 2nd July 2017– 1st January 2018. As the Complainant worked approximately 14 weeks working on average 30 hours per week (he was on leave in Hong Kong until 22nd September), he accrued a statutory entitlement of 33.6 hours annual leave at a rate of €10.00 per hour. I find the complainant’s claim is well founded and I order the Respondent to pay to the Complainant compensation to the sum of €336.00. |
Decision:
Section 41 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.
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00016560-001 The claim succeeds and I award the complainant €300 compensation to be paid by the respondent. CA-00016560-002 The claim is not well founded and the claim fails. CA-00016560-004 I uphold the complaint and I award the complainant €900.00 to be paid by the respondent. CA-00016560-005 This claim was withdrawn CA-00016560-006 I find that the complaint is well founded and award the complainant compensation in the sum of €500. CA-00016560-007 I find the complainant’s claim is well founded and I order the Respondent to pay to the Complainant compensation to the sum of €336.00. |
Dated: 1.8.18
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Payment of wages, annual leave, public holidays, terms and conditions of employment |