ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00054940
Parties:
| Complainant | Respondent |
Parties | Ghumchan Rai | Kandel Food Ltd |
| Complainant | Respondent |
Representatives |
| Resham Kandel – Owner/Manager |
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-00066997-001 | 29/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00066997-002 | 29/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00066997-004 | 29/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 8 of the European Communities (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of | CA-00066997-005 | 29/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00066997-006 | 29/10/2024 |
Date of Adjudication Hearing: 11/02/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of complaints of contraventions by an employer of an Act or Acts contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or complaints. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered.
In particular, the Complainant herein has referred three complaints:
Two of the complaints made relate to contraventions of The Organisation of Working Time Act 1997. This includes a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 365 or more;
1/3 of a working week in each month that the Employee has worked in excess of 177 hours;
8% of the hours worked up to 4 working weeks
A second complaint relates to a contravention of Section 14The Organisation of Working Time Act 1997 which provides for compensation for working on a Sunday and provides for a number of ways in which the compensation can be calculated including the payment of an allowance, an increased rate of pay or paid time in lieu.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Complainant has brought a further complaint of a contravention of the Payment of Wages Act, 1991 which is also an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015. Following the said referral,it is incumbent on the assigned Adjudicator to make all relevant enquiries into the complaint. This will include hearing oral evidence, considering submissions made and receiving other relevant evidence.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a complaint of an unlawful deduction or deductions having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Two further complaints concerning the Hours of Work of Mobile Workers are not relevant to the Complainant’s employment and appear to have been inadvertently included.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 29th of October 2024. In general terms I will therefore be looking at issues that have arisen in the six-month period directly preceding this date. In the interests of fairness, the WRC acquiesced to an application made for the provision of an interpreter. It is noted that the interpreter is provided to assist the Adjudicator to conduct an orderly and fair hearing of the Complaints being made by the Complainant in his preferred language. The interpreter did not guide or assist the Complainant. The Interpreter simply interpreted what was being said by the Complainant. I perceived there to be no difficulty in communication between the Interpreter and the Complainant. At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of all the evidence and submissions that I have considered. Any matter not specifically addressed is deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a
“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
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Summary of Complainant’s Case:
The Complainant was not represented and made his own case. The Complainant was assisted by an Interpreter. The Complainant gave an oral account of his employment with the Respondent. Other than two payslips, the Complainant failed to provide any contemporaneous evidence concerning his employment. I had to ask the Complainant to email the payslips to me as he did not have them in hardcopy. The Complainant relied on the submission set out in the Workplace Relations Complaint Form and I tried to draw out the various issues raised. The Complainant alleges that he was employed by the Respondent for up to six weeks but was only paid for two. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent was represented by its Manager/Owner. The Respondent provided me with no corroborating evidence. There was no Contract of Employment and there were no rosters concerning the period of employment. The Respondent confirmed that the Complainant worked for the Restaurant for three weeks. The Respondent rejects parts of the Complainant’s claims but concedes some issues. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The parties did not agree on the nature of their relationship before Monday the 16th of September 2024. I have to determine if there was an Employer/Employee relationship at that time. As I understand it, the Complainant communicated with the Respondent Restaurant owner on a date before the 26th of August 2024, expressing an interest in coming to work for him as a trained Chef. Both men are seemingly from Nepal, and the Respondent owner was working towards opening up a new Restaurant in Rathcoole. The Respondent owner welcomed the application and was anxious to secure the Complainant’s services as he had all the requisite skills and experience. However, there is no doubt that the Restaurant was not ready to open, and it would be some three or four weeks before the Restaurant would be ready to open. As I understand it, the Restaurant opened on Monday the 16th of September 2024. In the meantime, it seems the Complainant was not working and was therefore at a loose end while he waited to come to work for the Respondent. The Complainant was living in rented accommodation and the Respondent offered to bring the Complainant into a rental accommodation owned by the Respondent wherein he could live free of charge while they waited for the restaurant to be ready to be opened. The Complainant moved into the staff accommodation on the 26th of August 2024 On balance I am finding that this arrangement was mutually beneficial for the parties. The Complainant was living rent free while the Respondent had secured the chef he needed to start working in his restaurant. I am inclined not to accept the Complainant’s contention that he was in some way trapped. It was always open to the Complainant to look for alternative work elsewhere. He did not wish to do this. Three weeks after moving into the house aforesaid, the Complainant was engaged as a Chef as per the understanding reached between the parties. The salary appears to have been settled at somewhere between €700 to €750 per week. This works out at about €18.00 per hour for a 40-hour week. The Complainant only worked for three weeks before leaving. He says he worked well in excess of 40 hours for each of the three weeks, though was vague on how many hours he had worked. The Complainant was paid for two 40-hour weeks but was not paid for a third 40-hour week. For this the Complainant is owed remuneration in the sum of €750.00. I am minded to accept that the complainant worked more than forty hours for each of the three weeks he was there and it seems appropriate that I assume he worked eight hours overtime for each week which would be payable at time and a half – a rate of €27.00 per hour. The Complainant is therefore owed a further €650.00.
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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.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00066997-001 – This complaint is well founded as no distinction appears to have been made for working on a Sunday. I direct her Respondent does pay to the Complainant €50.00 compensation. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00066997-002 - the complaint herein well founded, and I direct the Respondent to pay to the Complainant a sum of €1,400.00 as compensation for the unlawful deductions made in respect of the Complainant’s remuneration. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00066997-004 – This complaint is not well founded as there was no accrued annual leave after only three weeks of work. Complaint seeking adjudication by the Workplace Relations Commission under Regulation 8 of the European Communities (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of CA-00066997-005 – This complaint is not well founded. The complaint concerns the hours of work of Mobile Workers. The Complainant offered no evidence in connection with this type of employment. Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 CA-00066997-006 – This complaint is not well founded. The complaint concerns the Hours of work of Mobile Workers. The Complainant offered no evidence in connection with this type of employment.
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Dated: 04th of April 2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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