Complainant

Respondent

Parties

Marcio  Antonio Rodrigues Junior

Foam Coffee House Limited

Representatives

 Dermot Duignan

Act

Complaint  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-00071836-002

23/05/2025

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

CA-00071836-005

23/05/2025

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

CA-00071836-007

23/05/2025

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

CA-00071836-009

23/05/2025

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

CA-00071836-011

23/05/2025

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-00071836-012

23/05/2025

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-00071836-013

23/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00071836-016

23/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00071836-017

23/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00071836-018

23/05/2025

Complaints CA-00071836-012 and 013 were withdrawn as they had been submitted in error.

 Complaint CA-00071836-009 was a duplicate of 005 and was withdrawn.

Complaints CA-00071836-016, 017 and 018 were exact duplicates and the latter two were withdrawn in favour of 016.

The complainant gave evidence on affirmation.

Complaint CA-00071836-002 (Sunday Working) and Complaint CA-00071836-005 (Public Holidays)

The complainant says that he did not receive any compensation for working public holidays or Sundays nor did anyone else in the kitchen. However, his oral evidence was that he did not work on public holidays.

 Complaint CA-00071836-007  (rest breaks)

During the week the complainant says he could not take breaks as there was no cover for any in the kitchen. They could go outside to smoke for no more than ten minutes or face disruption in the service.

On weekends they were not provided with a proper place to take a break.

Complaint CA-00071836-011 (No statutory statement of Terms of Employment)

The respondent had never given him a contract outlining his duties. There was an agreement that he would get help with the sponsorship visa, however in ten months, nothing happened.

Complaint CA-00071836-016 (Notice)

The complainant says that his employment was terminated by the Head Chef. He not only told him to go home but also told him that the sponsorship arrangement on which his work permit was based was ‘over’. 

He says that he was sent home at mid-day by WhatsApp message from the Head Chef.

Regarding the Sunday premium the complainant was paid a weekly salary which was inclusive of a composite rate for Sunday work. (Complaint CA-00071836-002) and Public Holiday Entitlements were paid by days off in lieu (CA-00071836-005)

Breaks given were always 30 minute breaks. There was always an eleven hour rest period in a 24 hour period (CA-0071836-007)

The respondent accepts that there was no ‘contract’ or statement of terms of employment in place during the complainant’s employment. This has now been rectified in the business with all employees receiving a contract on commencing employment. (CA-0071836-011).

Regarding the complaint of Unfair Dismissal 9CA-0071836-016) the background was as follows.

Leading up to the complainant leaving the premises, there had been an incident on Friday January 10th, 2025, which resulted in a complaint to the business owner about the complainant.

He (the owner) was away for the weekend, and said he would deal with it on his return on Monday.

The following Sunday there was a further incident, in which it is alleged that the complainant engaged in aggressive behaviour against a co-worker. The head chef came in and sent the complainant home at this point. The complainant did not show up for work again and had no further contact. He was paid up to date.

Of the original ten complaints, five remain to be addressed, the others having been withdrawn for various reasons which are set out above.

Three of these arise under the Organisation of Working Time Act and relate to Sunday working, CA-00071836-002, Public Holiday entitlements, CA-00071836-005 and rest breaks CA-00071836-007.

The business owner did not attend the hearing, although he was on notice of it and the respondent was represented by a HR consultant, Mr. Dermot Duignan. It seems that with his assistance the respondent has belatedly brought his business into compliance with various aspects of his employment law obligations. However, no sworn evidence could be offered at the hearing on behalf of the respondent as a result.

However, it seems equally clear that in respect of the complainant in these complaints, that was not the case at the time he was employed. Therefore, bland reassurances about what may have happened were not supported by documentary or oral evidence of any sort and were directly and persuasively contradicted by the complainant’s evidence.

Specifically. It is not in dispute that the complainant was not given a statement of his Terms of Employment or any other document outlining his terms of employment (colloquially, if somewhat imprecisely referred to as a ‘contract.’ There is no statutory entitlement to a contract, only to the statement of terms of employment as defined by the Act.)

While failure to provide the statement is in itself a breach of that Act, there was no other evidence to validate the assertions by the respondent’s representative that, for example, the complainant’s salary incorporated an element for Sunday working.

I find therefore that it did not. The complainant’s evidence was that he worked every Sunday.

Section 14 of the Organisation of Working Time Act, 1997, sets out that the amount paid to staff for working Sundays must be “reasonable… having regard to all the circumstances”.

Likewise in the absence of any records, I accept the complainant’s sworn evidence in relation to the failure to provide him with breaks.

The complaint in relation to public holidays is not well founded as the complainant did not work on any public holiday within the cognisable period.

In relation to the complaint under the Minimum Notice Act, the respondent says that the complainant left of his own volition.

The complainant’s evidence was that he was told to go home by his line manager, the Head Chef to diffuse some tension with co-workers. If this were all he intended, (i.e., sending him home temporarily) and was all that happened, it might suggest some ambiguity in what his intentions may have been,

However, it is not all that happened.

The reference by the Head Chef to the termination of the complainant’s ‘sponsorship’ agreement, on which his work permit depended can import no other interpretation than that his employment was being terminated, and this was the only logical construction of his remarks, and I so find.

He is therefore entitled to payment in lieu of notice.

There was some uncertainty about the complainant’s earnings. The WRC complaint form stated this as €54,600 per annum and this was accepted by the respondent’s representative.

Summary of Conclusions

I find that the following complaints are well founded and make awards of compensation as set out below.

In respect of Complaint CA-00071836-002 re Sunday working and based on the statement of the complainant’s earnings submitted by him and agreed by the respondent’s representative I calculate his daily rate to be €210. Applying a 25% premium to this would entitle him to a payment of €52.20 per shift.

Accordingly, I extend this over a six-month period and award him €1365.00.

In respect of Complaint CA-00071836-007 and the failure of the employer to make proper provision for breaks I award the complainant €1000.00.

In respect of Complaint CA-00071836-011 and the failure to provide a statutory statement of terms of employment I award the complainant two weeks wages  in the amount of €2100.00

Regarding Complaint CA-00071836-016 he is entitled to one week’s wages in lieu of notice in the amount of €1050.00

Complaint CA-00071836-005 is not well founded.   

Complaints CA-00071836-009, 012, 013, 016, 017 and 018 were withdrawn.

Complaint CA-00071836-002 re Sunday working is well founded, I award the complainant €1365.00.

Complaint CA-00071836-007 is well founded and I award the complainant €1000.00.

Complaint CA-00071836-011 is well founded  and I award the complainant two weeks wages  in the amount of €2100.00

Complaint CA-00071836-016 is well founded and I award the complainant one week’s wages in lieu of notice in the amount of €1050.00.

Complaint CA-00071836-005 is not well founded.   

Complaints CA-00071836-009, 012, 013, 016, 017 and 018 were withdrawn.  

Organisation of Working Time.