ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00012192
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | A hotel |
Representatives | Paul O' Donoghue O' Donoghues Solicitors |
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-00016097-002 | 01/12/2017 |
Date of Adjudication Hearing: 16/03/2018
Workplace Relations Commission Adjudication Officer: Caroline McEnery
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant was employed by the hotel as the Head Chef. His employment commenced on 24 July 2017. The Complainant’s contract outlined that he would be subject to a probationary period of six months. The Complainants employment was terminated within this 6 month period on 8 November 2017.
Summary of Complainant’s Case:
The Complainant alleged that he was given verbal notice on 8 November 2017 that his employment was being terminated. The Complainant outlined that he had only worked 3 days that week and that he is contracted to work 5 days over a seven day roster. The Complainant claims that he was not paid his notice entitlement of one month in line with his Contract of Employment. The Complainant alleges that he is owed a total amount of €3,750 which equates to one month’s pay.
The Complainant alleges that he worked an extra two days a week since he started in July which amounts to 14 extra days worked in total. The Complainant outlined that it was expected of him to work these extra days in order to get the kitchen up and running. The Complainant outlined that there was never any mention of time in lieu of the additional days he worked. The Complainant alleges in this regard that he is owed a total amount of €2,423 as this amounts to 14 days of work.
Summary of Respondent’s Case:
The Respondent alleges that the Complainant was asked to work his notice but he didn’t as he refused. The Respondent alleges that the Complainant also took SOP’s and claims that a handover did not occur. The Respondent outlined that their HR Department in Dublin advised them on this matter and his employment was terminated due to his aggressive behaviour but they said he resigned and refused to work his notice. There was no paper trail or correspondence to confirm same.
Findings and Conclusions:
There was a full opportunity for both the Respondent and the Complainant to put forward detailed submissions via written and oral evidence at the hearing.
I have considered all information presented to me in conjunction with legislation and case law in reaching a finding.
I find that the Respondent breached the terms of the Respondent’s Contract of Employment as he was not paid his notice entitlement of one month when his employment was terminated.
The Complainant confirmed in his oral evidence that there was an oral contract whereby he would be expected to work longer hours from the outset in order to get the business up and running. I also find that all overtime is included in the Complainant’s salary and the contract of employment clearly outlines that no additional remuneration is paid for extra hours worked.
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.
Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the claim consisting of a grant of redress in accordance with section 6 of the 1991 Act.
I have investigated the above complaint and make the following decision in accordance with the relevant sections of the legislation set out above and the following are my conclusions:
- Additional Days Worked:
The Complainant has claimed payment for additional hours which equates to 14 days worked however, as the employee was on a salary he said in oral evidence that all overtime was to be included in this payment. The Complainant also confirmed in his oral evidence as well as the written contract which stated there would be no extra remuneration for extra hours worked. The oral contract agreement was that he would be expected to work longer hours from the outset in order to get the business up and running. Therefore his claim fails in this regard.
- Notice Period:
As per the Complainant’s Contract of Employment, which has been signed by both the Complainant and the Respondent, he was entitled to 1 months’ notice. The Complainant did not receive this notice when his employment was terminated and so I am awarding the Complainant the gross amount which equates to the notice payment of one month due to him.
The amount of €3,750 equates to one month’s pay for the Complainant and this amount was not contested as inaccurate by the Respondent and therefore, I award €3,750 to the Complainant.
Dated: 3rd May, 2018
Workplace Relations Commission Adjudication Officer: Caroline McEnery
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