Complainant

Respondent

Parties

Andrei Constantin

Portobello Inns Limited

Representatives

Marius Marosan

 Did not attend the hearing

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-00069388-001

18/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994.

CA-00069388-002

18/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00069388-003

18/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00069388-004

18/02/2025

The complainant is a chef and he commenced working for the respondent, a café in Lennox Street, Dublin 8, on January 28th 2024.  In his evidence, he said that he generally worked for 40 hours a week, for which he agreed to be paid €650.00 per week.  His last day at work was Saturday, August 3rd 2024.

CA-00069388-001:  Complaint under the Terms of Employment (Information) Act 1994

Mr Marosan submitted that, in breach of s.3(1A) of the Terms of Employment (Information) Act 1994, the respondent didn’t issue the complainant a statement of his core terms and conditions of employment within five days of his commencement in his job.

CA-00069388-002:  Complaint under the Terms of Employment (Information) Act 1994

Mr Marosan submitted that the respondent is also in breach of s.3(1) of this Act, because he failed to issue the complainant with any written statement of his terms and conditions.  Arising from this, Mr Marosan argued that the complainant is entitled to the maximum compensation of four weeks’ pay.  He referred to the Labour Court decision in the case of Megan Hayes Kelly -v- Beechfield Private Homecare Limited[1], where the chairman stated:

"It is well-established in the Determinations of this Court that it is not necessary for a Complainant under the 1994 Act to demonstrate that he or she suffered a detriment as a consequence of the Respondent’s failure to fully comply with its obligations under section 3 of that Act.

The Act provides that the Workplace Relations Commission, and this Court on appeal, can award up to four weeks’ remuneration when it determines that section 3 of the Act has not been complied with."

CA-00069388-003:  Complaint under Section 5 of the Payment of Wages Act 1991

The complainant said that he was paid in cash for his first two days, which were considered as training days.  For the next 27 weeks, until he resigned on January 28th 2024, he received wages and a payslip for just 10 weeks.  At various times during his employment, and, after he resigned, he contacted his employer in an effort to persuade him to pay him the wages he was owed, but he said that he was only sent small amounts of money.  He postponed submitting this complaint to the WRC because he was in contact with his employer, who promised to pay him.  When he submitted this complaint to the WRC on February 18th 2025, Mr Marosan said that the complainant was owed €8,926 in unpaid wages and €1,300 for two weeks’ holiday pay due at the date of termination.

At the hearing, the complainant presented copies of payslips for 10 weeks that show that his gross weekly pay was €650.00 and his net pay was between €611.37 and €620.75.  For six of the 10 weeks, his net pay was €614.46.

CA-00069388-004:  Complaint Section 23 of the Organisation of Working Time Act 1997

Two of the payslips which the complainant submitted cover the weeks of the public holidays that fell on February 5th and March 18th 2024.  The payslips show that he was paid a normal week’s pay for those two weeks and that he did not receive the benefit of the public holidays.  The complainant said that the café opened on public holidays and he worked on the five public holidays that fell between March and June 2024.  He also claims that he is entitled to the benefit of the public holiday on Monday, August 5th, because, although he left on Saturday, August 3rd, he worked for his employer in the four weeks before the public holiday.

CA-00069388-001:  Complaint under the Terms of Employment (Information) Act 1994

It is the complainant’s case that, by not providing him with a statement of his core terms and conditions of employment within five days of starting in his job on January 28th 2024, the respondent was in breach of s.3(1A) of the Terms of Employment (Information) Act 1994.

In accordance with s.41(6) of the Workplace Relations Act 2015, for me to investigate a complaint, it must be submitted to the WRC within six months of the contravention to which it relates.  The complainant was entitled to receive a statement of his core terms and conditions of employment before the end of his first week at work, that is, before February 4th 2024.  The time limit for submitting this complaint expired six months later, on August 4th 2024.  As it was not submitted to the WRC until February 18th 2025, it is outside the time frame for which I have authority to conduct an enquiry.

CA-00069388-002:  Complaint under the Terms of Employment (Information) Act 1994

At no stage during his employment with the respondent, was the complainant provided with a statement of his terms and conditions of employment, a breach of s.3(1) of the Act.  As the respondent did not attend the hearing to provide any defence or explanation in relation to this claim, I must accept the evidence of the complainant and find that there is substance to his complaint. 

Having identified the breach of s.3(1) of the Terms of Employment (Information) Act, in accordance with section 7(2)(d), I am required to order the employer to pay compensation of “such an amount (if any) as is just and equitable, having regard to all the circumstances, but not exceeding 4 weeks’ remuneration…”  Taking account of the circumstances outlined by the complainant, it is my view that compensation equivalent to four weeks’ pay is just and equitable.

CA-00069388-003:  Complaint under Section 5 of the Payment of Wages Act 1991

I have considered the evidence of the complainant that he was paid his wages only for 10 out of the 27 weeks that he worked for the respondent.  Aside from the illegality of this conduct, it is grossly unfair and disrespectful to an employee to allow them to work and to not pay any wages. 

I have calculated that, based on his net pay of around €615.00 per week, his loss for 17 weeks amounts to €10,445.  I note from Mr Marosan’s submission that the respondent paid a small amount of the wages that were owed to the complainant when he finished work, and that he is now owed €8,926.00 in wages and €1,300 in holiday pay. 

CA-00069388-004:  Complaint under the Organisation of Working Time Act 1997

I note from the payslips provided by the complainant that he was paid the same amount every week, including the weeks on which a public holiday fell.  It is evident therefore, that he received no additional benefit for working on the public holidays.

In accordance with s.21(1) of the Organisation of Working Time Act 1997, an employee who is required to work on a public holiday is entitled to an additional day’s pay.

Because of the time spent by the complainant trying to resolve these claims directly with his employer, I have decided to extend the time limit for which I have jurisdiction to consider this particular complaint, and to consider the public holidays that fell in the 12 months before the complainant submitted this complaint to the WRC, on February 18th 2025.  I find therefore, that he is entitled to the benefit of the public holidays that fell between February 19th 2024 and his last day at work on August 3rd.  These were:

March 18th 2024, St Patrick’s Day

April 1st 2024, Easter Monday

May 6th 2024, May public holiday

June 3rd 2024, June public holiday

In accordance with s.23(2) of the Organisation of Working Time Act, the complainant is also entitled to the benefit of the public holiday that fell on August 5th 2024, because he was at work for the respondent in the previous four weeks.

I am satisfied therefore, that, in respect of his claim for the benefit of the public holidays which he did not receive, the complainant is entitled to five days’ pay.

CA-00069388-001:  Complaint under the Terms of Employment (Information) Act 1994

I have concluded that this complaint was submitted outside the six-month time limit set out at s.41(6) of the Workplace Relations Act 2015.  I decide therefore, that I have no authority to investigate further.

CA-00069388-002:  Complaint under the Terms of Employment (Information) Act 1994

I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €2,600, equivalent to four weeks’ pay. 

CA-00069388-003:  Complaint under Section 5 of the Payment of Wages Act 1991

I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €10,226 in respect of unpaid net wages and holiday pay.

CA-00069388-004:  Complaint Section 23 of the Organisation of Working Time Act 1997

I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €650.00. 

Total Compensation

The total amount of compensation awarded to the complainant is €13,476.  The awards under the Terms of Employment (Information) Act and the Organisation of Working Time Act are compensation for breaches of statutory rights and, in accordance with s.192A of the Taxes Consolidation Act 1997, are not subject to deductions for PAYE, PRSI or USC.  The award under the Payment of Wages Act is a net award.  Therefore, the total award of €13,476 is not subject to any deductions.

Non-payment of wages, non-payment of public holiday pay, failure to issue a statement of terms and conditions of employment