ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023808
A Coffee Shop
Appeared in Person
No Appearance by or on behalf of the Respondent
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
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Date of Adjudication Hearing: 06/11/2019
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act, 1991 and Section 27 of the Organisation of Working Time Act, 1997, 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.
This case involves a 5-month period of employment in a “Coffee Shop Start up Business “. The Complainant presented as a lay litigant in the case and there was no response or defence lodged by the Respondent. The notification of claims papers had been returned marked “no such person living at this address, return to sender “
Summary of Complainant’s Case:
The Complainant presented an outline of the circumstances which had caused him to join the respondent new coffee shop business as a Customer Assistant on 7 March 2019. The premises were owned by a Church Group and leased to the Respondent. The Complainant submitted that he earned €460 gross per week for a 40-hour week. The hours sometimes varied by overtime.
During May 2019, the appointed Manager left, and he was approached to become the replacement Supervisor. A period of uncertainty and trading instability followed where the owner was difficult to contact, and stock levels severely challenged due to non-payment of suppliers.
The Complainant submitted that he had not received a contract of employment but presented a copy of an unsigned contract template at the hearing. This headlined the name of the company but did not record the complainant’s consent.
The Café was due to close for a week in early August 2019 until 12 August 2019. The business did not trade from August 2 onwards. The Complainant explained that he was left in an invidious position where the Respondent was completely absent from the business and staff had not been paid. He had asked permission to release sum of €400 cash which remained in the till float to pay a staff member. Coffee stock depleted to just one bag.
The Complainant told the hearing that he had worked over time at the business and had not been paid. He had made himself available to the business throughout August 2019 in the hope that the business would re-open for trading purposes. This did not happen as electricity, water and internet ceased at the premises. The Complainant was quite distressed by his experiences at the premises and submitted that he understood that the Owner had repatriated and was uncontactable. He felt aggrieved at the way his employment unfolded with its abrupt ending .
He found new work in September 2019.
CA -00030456-001 Payment of Wages
The Complainant submitted that he had been denied payment for 72 hours overtime and payment of one week of lieu of notice. the café had never re-opened post August closure and he had endeavoured to resolve payment issues with the respondent but could not secure a response.
CA -00030456-002 Annual Leave
The Complainant submitted that he was owed 10 days annual leave to cover the entirety of his employment which entered the month of August 2019. He had not received public holiday entitlement.
Summary of Respondent’s Case:
There was no appearance by or on behalf of the Respondent. Notification papers of the claim had been returned marked “return to sender “
Findings and Conclusions:
I have spent some time reflecting on the circumstances presented by the complainant during this case. I understand that it was an ex-parte presentation, however, I found it very unsettling that a business in its infancy demonstrated such instability and void in governance. It appears that the business opened in March 2019 only to close some 5 months later. From the complainant’s submissions, the equipment remains in the business and nobody appears to have been paid across employees, suppliers and land lord.
At any rate, I have been asked to consider the claims advanced by the complainant. I explained to the complainant that I had little documentation which linked him with this employment. He presented a template of a contract which was unsigned by either party. The Complainant undertook to furnish me with pay slips but two weeks post hearing , these pay slips have not been received .He told me that he had not claimed Job Seekers Benefit from August 2019 and had remained at the disposal of the Respondent in his capacity of Supervisor and had liaised with various suppliers during this period .I understand that the Church has reclaimed possession of the business .
Section 5 of the Payment of Wages Act sets out the circumstances surrounding an illegal deduction of wages. Section 5(6) of the Act covers non-payment of wages and equates that circumstance with a deduction of wages.
Based on the uncontested evidence of the complainant, I accept that he was not paid 72 hours over-time worked in the cognisable period of March -September 2019. I also accept that he did not receive statutory notification of the complete closure of the business which resulted in his unemployment.
I find these claims to be well founded.
Section 19 of the Act outlines a statutory entitlement to annual leave. Section 23 of the Act provides fort cesser pay on completion of employment.
I did not have the benefit of Respondent records maintained in accordance with Section 25 of the Act. I have made my decision based on the uncontested evidence of the complainant at hearing.
I find that his claim for unpaid annual leave and public holiday is well founded and he is entitled to succeed.
Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints 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 complaint in accordance with the relevant redress provisions under that Act.
I have found the claim to be well founded. The Respondent has breached Section 5 of the Act. Based on a weekly salary of €460.00 gross and an hourly rate of €11.79, I order the Respondent to pay the complainant compensation in respect of this breach.
€849.230 in unpaid overtime and €459.81 in respect of his statutory notice. This cumulative sum of €1,309.04 is to be paid within three weeks of this decision and is subject to statutory deductions.
Section 27 of the Organisation of Working Time Act, 1997, requires that I decide in relation to the claim consisting of a grant of redress in accordance with section 19 of the Act.
I have found the claim well founded. The Respondent has acted in breach of Section 19 of the Act. I order the Respondent to pay the complainant €1,000 in compensation for the blatant disregard for the statutory terms on provision of annual leave outlined in Section 19 and 23 of the Act.
Dated: 4th December 2019
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Payment of Wages, Annual Leave