Complainant

Respondent

Parties

Eugen Stan

International Fresh Fish Limited

Representatives

Marius Marosan

Represented by a Director

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-00064801-001

16/07/2024

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

CA-00064801-002

16/07/2024

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

CA-00064801-003

16/07/2024

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

CA-00064801-004

16/07/2024

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

CA-00064801-005

16/07/2024

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

CA-00064801-006

16/07/2024

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

CA-00064801-007

16/07/2024

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

CA-00064801-008

16/07/2024

The complainant commenced employment with the respondent on September 2nd 2022, but Mr Marosan said that he only became registered as an employee on April 10th 2023.  He left on February 2nd 2024.  Payslips submitted by Mr Marosan after the hearing show that the complainant was paid €942.00 gross per week.

These complaints relate to the failure of the respondent to issue the complainant with a written statement of his terms and conditions of employment, breaches of the Organisation of Working Time Act 1997 with regard to hours of work, breaks, holidays and public holidays and the failure of the respondent to pay the complainant his final week’s wages.

CA-00064801-001:  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-00064801-002:  Complaint under the Terms of Employment (Information) Act 1994

Mr Marosan submitted that the respondent is also in breach of s.3 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-00064801-003:  Complaint under the Organisation of Working Time Act 1997

At the hearing, the complainant said that he worked from 7.00am until 7.00pm from Monday to Saturday and from 10.00am until 3.00pm on Sundays.  He claims that he worked 65 hours per week.  He did not dispute Mr Canciu’s evidence that the opening hours of the shop where he worked were as follows:

Monday:  Closed

Tuesday – Thursday:  9.00am – 6.00pm (9 hours x 4 = 36 hours)

Friday - Saturday:  9.00am – 5.00pm (8 hours x 2 = 16 hours)

Sunday:  10.00am – 3.00pm (5 hours)

Total opening hours in the shop: 57

In breach of s.15 of the Organisation of Working Time Act (“the OWT Act”), the complainant claims that he worked more than 48 hours every week.

Mr Marosan referred to s.25(4) of the OWT Act which provides as follows:

Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

Subsection (3), referred to above, provides that an employer who, without reasonable cause, fails to comply with subsection (1) will be guilty of an offence.

In support of his case that the complainant should be awarded significant compensation for this breach of the 48-hour maximum rule, Mr Marosan referred to the following Labour Court decisions:

In its decision in Peter Lukco v HSE South and Kerry General Hospital[2], the Labour Court referred to the case of Edward James Feeney v Minagros Baquiran[3] and the now well-established decision of the Court of Justice of the EU in Von Colson v Kamann[4].   Here, the Court made it clear that, where a right which is derived from the law of the EU is infringed, the sanction for breaches must be “effective, proportionate and dissuasive and must provide a real deterrent against future infractions.”

In its decision in Ana Lacramioara Manciu V Stablefied Limited[5], the Labour Court explained in detail how it reached its decision regarding compensation for a breach of s.15 of the OWT Act:

“The Court is not satisfied that recompense by a simple formulaic application of an hourly rate to the difference between the maximum of 48 hours per week permitted by the Act and the actual hours worked is appropriate, as the Act provides that such hours should not be worked in the first place.

The Court determines that payment of compensation to the Complainant for what the Court is satisfied was a conscious breach of the Complainant’s rights under s. 15 of the Act is the most appropriate means of dealing with this matter.  The Act…requires the Court to have regard to what level of compensation is just and equitable, subject to a limit of two years’ pay.  The ECJ, as it then was, set out in Von Colson v Kamann (1984) ECR 1891, that sanctions for breaches of Community Rights must ensure that they are effective, proportionate and dissuasive, they must reflect the gravity of the breaches and should act as disincentives against future infractions.

This Court noted in Edward James Feeney v Milagros Baquiran (2004) 15 E.L.R 304 that the provisions of this Act and the Directive on which it is based are health and safety imperatives.  Therefore, breaches of employees’ rights have potentially far-reaching consequences. This Court examined also the concept of ‘proportionality’ in determining the scale of a compensation award for a conscious breach of an employee’s rights under s.15 of the Act in HSE South and Kerry General Hospital v Peter Lukco DWT 1560.”

CA-00064801-004:  Complaint under the Organisation of Working Time Act 1997

In breach of s.12 of the OWT Act, the complainant claims that, during his working day, he “barely got any breaks,” that he ate whenever he got a chance and that he hadn’t always got time to go to the toilet.

Mr Marosan referred to the decision of the Labour Court in Medfit Wellness Limited v Ruth Murphy[6]where the Court emphasised the responsibility of the employer to keep working time records.

CA-00064801-005:  Complaint under the Organisation of Working Time Act 1997

In breach of s.21 of the OWT Act, the complainant claims that he got no benefit for public holidays.  He said that the shop was closed every Monday and he received the same wages of €942.00 every week, including the weeks in which a public holiday fell.  He claims that he is entitled to €188.40, equivalent to one fifth of a week’s pay, for every public holiday on which he was not rostered for work.  Mr Marosan submitted that, in addition to his entitlement to the benefit of public holidays while he was employed by the respondent, the complainant is entitled to the benefit of the public holiday that fell on Monday, February 5th 2024, after his employment ended, because he worked during the previous week.

Mr Marosan referred to a decision of the Labour Court concerning a similar breach of s.21 of the OWT Act, Anne-Marie Nulty v Blackrock Leisure Ltd[7].  Finding that Blackrock Leisure was in breach of s.21, the Court awarded Ms Nulty compensation of €1,800.

CA-00064801-006:  Complaint under the Organisation of Working Time Act 1997

The complainant said that he took 18 days’ holidays in 2023, from May 28th until June 16th.  After that, he took no holidays and he claims that he is entitled to the holidays that accrued up to his last day of work with the respondent.

Under this heading of a breach of s.19 of the OWT Act, Mr Marosan referred to the decision of the Labour Court in what he claims is a similar case, Kamil Lemanski v Rutledge Recruitment and Training Limited[8]where compensation of €3,000 was awarded to Mr Lemanski arising from the failure of his employer to arrange for him to take his annual leave.

CA-00064801-007:  Complaint under the Payment of Wages Act 1991

The complainant claims that he didn’t get any wages for his last week at work and that he is owed €942 in unpaid wages.

CA-00064801-008:  Complaint under the Organisation of Working Time Act 1997

This is a complaint regarding a breach of s.14 of the OWT Act regarding the complainant’s entitlement to an allowance for working on Sundays.

In support of his position that the complainant is entitled to significant compensation for working on Sundays, Mr Marosan referred again to the decision of the Labour Court in Anne-Marie Multy v Blackrock Leisure (footnote 7).  He argued that, when I consider the compensation owed to the complainant for holidays and public holidays, I must take account of his entitlement to an allowance for working on Sundays.

At the opening of the hearing, the director of the respondent company, Mr Canciu, explained that he and the complainant, Mr Stan, were friends for a long time and they bought a van to start a fish business.  Around August 2021, the complainant left the company and Mr Canciu said that they continued to be friends.  About two years later, Mr Canciu said that he was looking for a place to open a fish shop and he found a place in Saggart.  He said that he asked the complainant to join him as an associate and the complainant agreed.  Mr Marosan agreed with Mr Canciu that he and the complainant both invested financially in the business.  A filing in the Companies Registration Office shows that the complainant was a director of the respondent’s company until September 1st 2022.  For the duration of his involvement with the business, Mr Canciu said that the complainant worked in the fish shop.  He said that he could have opted to do van deliveries, but he decided to focus on the shop.

At the hearing, it became apparent that the relationship between Mr Canciu and the complainant became strained due to Mr Canciu’s concerns about the conduct of the complainant.  It was in these circumstances that the complainant left his job.

Mr Canciu said that the complainant’s weekly pay of €942 was “agreed for everything” including working on Sundays.  Mr Canciu said that the shop closed every Monday and didn’t open on any of the public holidays.  He said that the complainant took four weeks’ holidays in the summer.  He conceded that the complainant was not paid for his last week at work.

These complaints arose following the resignation of the complainant on February 2nd 2024.  His resignation was in response to a falling-out with his business partner and friend with whom he had set up a retail fish business in May 2021.  At the hearing of these complaints on November 1st 2024, the complainant said that he started a new job the day after he resigned.  He submitted these complaints to the WRC on July 16th 2024.

It is significant that, for the duration of his employment with the respondent, the complainant raised no issues about a breach of s.3 of the Terms of Employment (Information) Act and he didn’t ask for a statement of his terms and conditions of employment.  He didn’t complain about having to work long hours and he didn’t look for an allowance for Sunday working or for public holidays.  It is significant also that the complainant waited more than five months before he submitted these complaints to the WRC. 

The complainant was a director of the respondent’s business until September 2022 and, at the hearing, it was apparent that he was the effective manager of the shop where he worked.  He earned €942 per week, which, based on the shop being open for 49 hours each week, is equivalent to an hourly rate of €19.22.  This is considerably higher than the hourly rate generally paid to retail employees in small local shops.  Mr Canciu told me that the complainant’s weekly pay was “for everything” including working on Sundays and it is my view that the complainant understood and accepted this.  While I acknowledge this arrangement, made between two friends, I recognise the importance of the OWT Act as a legal mechanism to transpose important EU legislation in relation to employee health and well-being.  I acknowledge also the findings of the Labour Court in previous cases that the collusion of an employee in a breach of the OWT Act does not excuse the breach.

CA-00064801-001:  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 his commencement in his job, the respondent was in breach of s.3(1A) of the Terms of Employment (Information) Act 1994.

The complainant’s relationship with his former employer started out collaboratively when they were joint directors of the business.  When he ceased being a director in September 2022, no formal arrangements were put in place for the complainant and, it appears that he didn’t look for a contract or any statement to confirm his terms and conditions.  At the end of the employment relationship, the complainant sought to exercise his legal entitlements. 

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 expiry of his first week at work, that is, before September 9th 2022 or before April 17th 2023.  As this complaint was submitted to the WRC on July 16th 2024, the time limit expired on January 17th 2024.  For this reason, I have no legal authority to investigate this complaint.

CA-00064801-002:  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 of the Act.  I am satisfied that the complainant did not ask his employer for a statement of his terms and conditions and the fact that he did not receive a statement was never a concern for him while he was employed.  It is apparent to me from the evidence of both sides that the business was a mutually beneficial undertaking for them both.  It was only when their relationship soured, and the complainant decided to leave the business, that he decided to submit this claim regarding a breach of s.3 of the Terms of Employment (Information) Act.   

Having identified the breach of s.3 of the 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…”  It is my view that, taking account of circumstances of both sides in relation to this matter, compensation equivalent to one week’s pay is just and equitable.   

CA-00064801-003:  Complaint under the Organisation of Working Time Act 1997

As Mr Marosan pointed out at the hearing, s.25(4) of the OWT Act makes it clear that the onus is on an employer to keep records of hours of work and breaks of their employees.  It is my view that, as the shop manager, the complainant was responsible for managing and maintaining a record of his hours of work, a responsibility undertaken by most shop managers across the country, apart from the large multiples, where employees are more likely to clock in and out on a centrally managed system.

Section 3(2)(c) of the OWT Act addresses the circumstances in which some employees manage their own working time to such an extent that the provisions of Part II of the Act don’t apply, meaning that they are not subject to the minimum rest periods and the 48-hour maximum working week:

(2) Subject to subsection (4), Part II shall not apply to—

Subsections (a) and (b) are not relevant to this complaint.

(c) a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.

Subsection (4) refers to the provision that the Minister for Enterprise, Trade and Employment may make an order that section 3(2) does not apply to a particular class of workers, but this provision is not relevant to this complaint.

It is my view that the complainant was responsible for managing his own working hours.  At the hearing, Mr Canciu said that the complainant could have worked on deliveries, but he preferred to stay in the shop.  It is my view also, that it was open to the complainant to reduce the shop’s opening hours, perhaps by opening at 10.00am from Tuesday to Saturday, instead of 9.00am.

The timeframe for consideration of this complaint is the six months before it was submitted to the WRC, from January 17th until July 16th 2024.  As the complainant resigned on February 2nd 2024, the timeframe is reduced to the two weeks and two days between January 17th and February 2nd.  I am satisfied that, in the period in question, the complainant’s average weekly working hours were less than 48.

CA-00064801-004:  Complaint under the Organisation of Working Time Act 1997

In breach of s.12 of the OWT Act, the complainant claims that, during his working day, he “barely got any breaks.”  It is my view that the complainant had the authority to manage his own working time and to ensure that he got his breaks.  It was open to him to close the shop while he took a break or to recruit someone to assist int the shop.  The complainant provided no evidence that he was prevented from taking any action to ensure that he was able to take his breaks.

Having reached this conclusion, I am mindful also of the responsibility of the respondent to maintain a record of the working time of the complainant.  In the absence of such records, I must conclude that the complainant did not take breaks during the working day. 

CA-00064801-005:  Complaint under the Organisation of Working Time Act 1997

I note from the payslips provided by Mr Marosan that the complainant was paid the same amount every week and Mr Canciu did not dispute this.  It is evident therefore, that the complainant received no additional benefit for public holidays.  He was not required to work on Mondays and six of the ten public holidays in Ireland fall on Mondays.

I have already noted that, in the six months before he submitted these complaints to the WRC on July 16th 2024, the complainant was at work for two weeks and two days, from January 17th until February 2nd 2024.  No public holidays fell during that period.  However, in accordance with s.23(2) of the OWT Act, the complainant was entitled to compensation for the public holiday that fell on February 5th 2024, because he was at work during the week ending on the day before the public holiday and he worked for the respondent during the four weeks preceding that week.

In accordance with Statutory Instrument 475 of 1997, the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997, the complainant was entitled to one fifth of a week’s pay for the public holidays on which he was rostered for a day off.  

Having regard to all the circumstances, and particularly, the failure of the complainant to raise his concerns about public holiday pay with the respondent while he was an employee, I have decided to make the minimum award of compensation equivalent to one fifth of a week’s pay.

CA-00064801-006:  Complaint under the Organisation of Working Time Act 1997

At the hearing, the complainant said that he took 18 days’ holidays in 2023.  In accordance with s.19 of the OWT Act, he was entitled to 20 days’ annual leave and he therefore carried over two days into the leave year 2024.  On the date of his resignation on February 2nd 2024, he accrued a further 1.9 days ((20 ÷ 52) x 5 weeks).  I find therefore, that, at the termination of his employment, the complainant was entitled to four days’ pay for holidays not taken.

CA-00064801-007:  Complaint under the Payment of Wages Act 1991

At the hearing, Mr Canciu accepted that he did not pay the complainant for his last week at work.  I am satisfied therefore that the respondent owes the complainant €942.00 in unpaid wages.

CA-00064801-008:  Complaint under the Organisation of Working Time Act 1997

Mr Canciu’s evidence is that the complainant’s weekly pay of €942 was “for everything” including Sundays.  It is apparent to me that this was acceptable to the complainant until the breakdown of his relationship with the respondent in February 2024.  I am satisfied that while the complainant raised no issue about a Sunday allowance while he was employed by the respondent, s.14 of the OWT Act makes it unlawful to require a person to work on a Sunday without paying them an allowance in addition to a normal day’s pay.

In the six months before he submitted these complaints to the WRC on July 16th 2024, the complainant worked on two Sundays, on January 20th and 27th 2024.  An allowance of 30% of a day’s pay is generally paid for working on Sundays in the retail sector.  I find therefore, that the complainant is entitled to compensation of 30% of a day’s pay for the two public holidays that fell on January 20th and 27th 2024.

CA-00064801-001:  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-00064801-002:  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 €942.00, equivalent to one week’s pay.

CA-00064801-003:  Complaint under the Organisation of Working Time Act 1997

I have concluded that the complainant did not work more than an average of 48 hours in the six months before this complaint was submitted to the WRC.  I decide therefore, that the complaint is not well founded.

CA-00064801-004:  Complaint under the Organisation of Working Time Act 1997

In the absence of working time records, I must conclude that the complainant did not take breaks during the working day.  I decide therefore, that this complaint is well founded and I direct the respondent to pay the complainant compensation of €942.00, equivalent to one week’s pay.

CA-00064801-005:  Complaint under 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 €188.40, equivalent to one fifth of a week’s pay. 

CA-00064801-006:  Complaint under 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 €753.30, equivalent to four days’ pay. 

CA-00064801-007:  Complaint under 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 €942.00, equivalent to one week’s pay.

CA-00064801-008:  Complaint under 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 €565.20, equivalent to 30% of a day’s pay for two days.

Total Compensation

The total amount of compensation awarded to the complainant is €4,332.90.  As this award is compensation for breaches of statutory rights, in accordance with s.192A of the Taxes Consolidation Act 1997, it is not subject to deductions for PAYE, PRSI or USC.

Statement of terms and conditions of employment, excessive working hours, breaks, public holidays, annual leave, Sunday allowance, payment of wages