ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00051040

Parties:

	Complainant	Respondent
Parties	Bernardo Daniel Amador Mata	Soleshine Limited t/a Umi Falafel

	Complainant	Respondent
Anonymised Parties	{text}	{text}

Representatives

Paul Hegarty, BL, instructed by Anthony Collier Collier Law

Complaint(s):

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-00062511-001	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062511-002	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062511-003	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00062511-004	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00062511-005	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00062511-006	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00062511-007	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00062511-008	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00062511-009	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062511-010	29/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00062511-011	29/03/2024

Date of Adjudication Hearing: 13/12/2024

Workplace Relations Commission Adjudication Officer: Patricia Owens

Procedure:

On 29 March 2024 the Complainant referred eleven complaints to the Workplace Relations Commission as set out above.

In accordance with section 41 of the Workplace Relations Act, 2015 and following referral of the complaint to me by the Director General, a hearing was scheduled for 13 December 2024 to afford the parties an opportunity to be heard by me and to present to me any evidence they deemed relevant.

In deference to the Supreme Court ruling, Zalewski V Ireland and the WRC [2021] IESC 24, the parties were informed in advance that the hearing would normally be in public, testimony under oath or affirmation would be required and full cross examination of all witnesses would be provided for. The Complainant attended and was represented by Mr. Paul Hegarty BL, instructed by Mr. Anthony Collier Solicitor.

There was no appearance by or on behalf of the Respondent at the hearing and no contact was made to explain the absence.

The required affirmation/oath was administered to the Complainant prior to his testimony. The legal perils of committing perjury were explained to the Complainant.

Preliminary Issue:

The Complainant confirmed that complaints had also been lodged against two other companies and outlined the details of those companies, which are the subject of separate complaints to the WRC. The Complainant outlined that there could be no doubt that the Complainant was an employee of Soleshine up to the date of his dismissal and at no point was that original contract terminated or varied. The Complainant provided copies of a contract dated 3 October 2023 between the Complainant and Soleshine which was signed by both parties.

The Complainant submitted that he was employed by Hi Veg from 12th October 2021 to 2 October 2022 and that the company was changed to Soleshine at that time and that ultimately a contract was offered in October 2023 which was signed by both parties. The Complainant outlined that the same owner was in place throughout all of his employment and indicated that the employment was unbroken and therefore was continuous with the employer up to the date of termination of employment, the employer was Soleshine Limited.

The Complainant also noted that the restaurant where he worked was named as Umi Falafel, however he noted that this also had the same owner, was at the same site, had the same address and that he had the same duties and the same role throughout his employment and that the only Contract of Employment he ever had was with Soleshine. He noted that Umi Falafel had six different branches but that he had always worked at Umi Falafel at Dame Street.

Background:

The Complainant was employed by the Respondent from 12 October 2021 as a Deli Chef. The Complainant alleged that he was summarily dismissed on 26 September 2023 and that he never received an explanation for his dismissal. He contended that he was not given compensation for working on Sundays, that he did not receive his paid holiday entitlement, that he did not receive appropriate payment in lieu of notice, that he was not notified of changes to his terms of employment, that he did not receive his statutory minimum period of notice on the termination of his employment, that he did not receive his public holiday entitlements and that he did not receive a statement in writing of his terms of employment.

The Respondent is a provider of food services. There was no appearance by or on behalf of the Respondent at the hearing and the Respondent did not provide any written response to the complaint.

Summary of Complainant’s Case:

General background:

The Complainant submitted that he began his employment with the Respondent on 3 October 2022 and that he was employed as a Deli Chef from 3 October 2022 until 26 September 2023 and that he worked a 37.5 hour week with an average of 42 hours worked per week.

CA-00062511-001:

In his complaint form, the Complainant submitted that he did not receive compensation for working on Sundays and indicated that further particulars would be furnished in due course.

In his submission the Complainant drew attention to section 14 of the Organisation of Working Time Act 1977, which set out the statutory rights for employees in respect of Sunday working and submitted that an employee who is required to work on a Sunday, and his/her having to work on that day has not been taken account of in the determination of pay, shall be compensated as follows:

· By the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

· By otherwise increasing the employee's rate of pay by a reasonable amount having regard to all the circumstances, or

· By granting the employee reasonable paid time off from work having regard to all the circumstances, or

· By a combination of two or more of the above means

The Complainant referred to the general principles of compensatory arrangements for Sunday working in the retail trade and submitted that in accordance with the provisions of the Organisation of Working Time Act 1997, a premium payment will apply to Sunday working. The Complainant noted section 14 of the act specified the means by which the premium should also be granted and noted that the nature and value of this premium rate should be negotiated and agreed between the employer and the Trade Union (S) representing employees or between the employer and the employee so reflected by the Sunday trading in circumstances where employees are not unionised.

The Complainant filed a submission that existing employees should have the option to volunteer to opt into working patterns which include Sundays on a rota basis and form part of a regular working week (i.e. being required to work no more than five days out of seven). The Complainant noted that newly recruited employees may be contracted to work Sundays as part of a regular rostered working pattern.

The Complainant further noted that employees who have a minimum of two years’ service on a Sunday working contract, should have the opportunity to seek to opt of Sunday working for urgent family or personal reason, giving adequate notice to the employer. The Complainant further noted that meal breaks on Sundays should be standardised in line with the other working days of the week and that all employees should have the opportunity of volunteering to work on the peak Sunday trading days prior to Christmas in addition to their normal working week. In these circumstances, length of service would not be an overriding criterion for the selection for Sunday working.

CA-00062511-002:

In his complaint form, the Complainant submitted that he did not receive paid holidays and annual leave entitlements and indicated that he would furnish further particulars in due course.

In his submission the Complainant submitted that he did not receive paid holiday or annual leave entitlements.

The Complainant submitted that the amount of annual leave an employee is entitled to is the greater of:

(a) Four working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment)

(b) One third of a working week for each month in the leave year in which he or she works at least 117 hours, or

CA-00062511-003:

In his complaint form, the Complainant submitted that he was not paid for holidays and indicated that he would furnish further particulars in due course.

In his submission the Complainant submitted that he was not paid for holidays, that the only contract provided to him was dated 03/10/2022 between him and Soleshine Limited of 31 Dame Street, Dublin 2. He further submitted that his contract provided to him at the commencement of his employment outlined at section 8, leave for holidays and other reasons.

CA-00062511-004:

In his complaint form, the Complainant contended that he was not provided with notice upon termination of his employment and indicated that he would furnish further particulars in due course.

In his submission the Complainant confirmed that he did not receive proper notice on termination of his employment and noted that his contract stated at section 2.1 “your employment is subject to a probation period of six months. If at the end of that time we are satisfied with the quality of your work, we shall tell you if your employment is permanent”.

CA-00062511-005:

In his complaint form, the Complainant submitted that he was not notified of a change in his terms and conditions of employment and indicated that further particulars would be made available in due course.

In his submission the Complainant contended that he was notified of a change in his terms and conditions of employment, and he noted that the Terms of Employment Information Act 1994 as amended, provides, inter alia, for the issue to employees of certain statements of terms of employment and the Complainant noted that these statements include a five day statement and a written statement of terms of employment.

CA-00062511-006:

In his complaint form, the Complainant contended that he did not receive his minimum notice and indicated that further particulars would be furnished in due course.

In his submission the Complainant confirmed that he did not receive his statutory minimum period of notice and termination of his employment or payment thereof. He further confirmed that he did not receive notice of termination.

CA-00062511-007:

In his complaint form, the Complainant contended that he did not receive notice of termination and did not receive all of his rights and indicated that he would furnish further particulars in due course.

In his submission the Complainant confirmed that he did not receive all of his rights during the period of notice, and he confirmed that he did not receive notice of his termination and did not receive all of his rights.

CA-00062511-008:

In his submission the Complainant confirmed that he did not receive notice of termination on the contract of employment from his employer.

CA-00062511-009:

At hearing the Complainant confirmed that this complaint was a duplicate of a complaint submitted separately under ADJ 00048710 and so he confirmed that this complaint was withdrawn.

CA-00062511-010:

In his complaint form, the Complainant contended that he did not receive public holiday payments and that he would furnish further particulars in due course.

In his submission the Complainant confirmed that he did not receive his public holiday entitlements and that he was due payments in respect of St. Patrick’s Day 2024, Easter Monday, the first Monday in May, June, August and October.

CA-00062511-011:

In his complaint form, the Complainant contended that he was not provided with terms of conditions of employment, and he indicated that further particulars would be furnished in due course.

In his submission, the Complainant confirmed that he was not provided with the terms and conditions of employment, save for his initial contract provided to him at the commencement of his employment.

Summary of Respondent’s Case:

There was no appearance by or on behalf of the Respondent at the hearing and the Respondent did not provide any response to the complaints.

Findings and Conclusions:

Preliminary Issue:

I noted the contract of employment signed on 3rd October 2023 between the complainant and Soleshine limited. I noted further the evidence of the complainant that he had originally worked for Hi Veg and that his employment between Hi Veg and Soleshine Limited had been continuous in nature and had also been at the same address, with the same management, throughout his employment. Based on the information provided, and on the information provided by the Complainant representative in relation to company’s registration office, details of the various companies, I am satisfied that the correct employer of the complainant is Soleshine Limited.

CA-00062511- 001:

I noted the Complainant contention that he did not receive compensation for working on Sundays.

I noted the provisions of Section 14 of the Act which states that when “an employee is required to work on a Sunday and, his or her having to work on that day has not been taken account of in the determination of pay, shall be compensated as follows:

· By the payment to the employee of a reasonable allowance having regard to all the circumstances, or

· By increasing the employee’s rate of pay by a reasonable amount having regard to all the circumstances, or

· By granting the employee reasonable paid time off from work having regard to all the circumstances, or

· By a combination of two or more of the above means.”

I noted that there was no attendance by or on behalf of the Respondent, nor did the Respondent provide any written submissions in response to the complaints. I was satisfied that notice containing the details of the date, time and place of the hearing had been properly communicated to the Respondent.

As no further communication was received at the time of finalising this decision to explain the absence of the Respondent and in the context that I am satisfied that the said Respondent was informed in writing of the arrangement for the hearing, in the absence of any evidence to the contrary being adduced before me, I must conclude that the within complaint is well founded.

CA-00062511- 002:

I noted the Complainant contention that he did not his paid holiday/annual leave entitlement.

I noted that the Act confirms that the amount of annual leave an employee is entitled to is the greater of:-

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours. Or

CA-00062511- 003:

I noted the Complainant contention that he did not his paid holiday/annual leave entitlement.

I noted that this complaint is a duplicate of CA-00062577-002 and so I find that this complaint is not well founded.

CA-00062511- 004:

I noted the Complainant contention that he did not receive appropriate payment in lieu of notice of termination of his employment and his reference to section 2.1 of his contract which stated that:

“Your employment is subject to a probation period of 6 months. If at the end of that time we are satisfied with the quality of your work, we shall tell you if your employment is permanent.”

No further communication was received at the time of finalising this decision to explain the absence of the Respondent and I am satisfied that the said Respondent was informed in writing of the arrangement for the hearing.

Under the terms of the Minimum Notice and Terms of Employment Acts, 1973-2005 an employee is entitled to receive notice based on service with an employer. The Complainant had been employed by the named Respondent from 3 October 2022 to 26 September 2023 however, he had been in continuous employment with the Respondent predecessor companies from 12 October 2021. The Complainant provided information from the CRO to demonstrate the linkage between the companies referenced.

In circumstances where I am satisfied that the Respondent was properly on notice of arrangements for the hearing, in the absence of any evidence to the contrary being adduced before me, I must conclude that the within complaint is well founded. I also find, that on the basis of his continuous service (of less than 2 years) the Complainant was entitled to one weeks’ notice of termination of employment.

CA-00062511- 005:

I noted the Complainant contention that he was not notified in writing of a change to his terms of employment.

I noted that the Terms of Employment (Information) Act provides as follows:

“3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.”

I further noted that Section 5 of the Act states:

“5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.”

As no further communication was received at the time of finalising this decision to explain the absence of the Respondent and in the context that I am satisfied that the said Respondent was informed in writing of the arrangement for the hearing. Based on the Complainant evidence and the legislative requirements set out above, in the absence of any evidence to the contrary being adduced before me, I must conclude that the within complaint is well founded.

CA-00062511- 006:

I noted the Complainant contention that he did not receive his statutory minimum period of notice on the termination of his employment.

The Complainant had a clear entitlement to receive one week’s notice in accordance with the provisions of the Act or payment in lieu and so I must conclude that this complaint is well founded.

CA-00062511- 007:

I noted the Complainant contention that he did not receive all his rights during the period of notice.

No further communication was received at the time of finalising this decision to explain the absence of the Respondent.

However, the Complainant did not provide any detail at hearing or in his submission to the WRC to outline what rights, other than his entitlement to notice, had been withheld during his period of notice. As his entitlement to notice has been dealt with under CA-00062577-004 above I must conclude that this complaint is not well founded.

CA-00062511- 008:

I noted the Complainant contention that he did not receive minimum notice of termination of the contract of employment from his employer.

No further communication was received at the time of finalising this decision to explain the absence of the Respondent.

However, the Complainant relied upon the same set of factual circumstances as those outlined t under CA-00062577-004 above. As his entitlement to notice has been dealt with under CA-00062577-004 above I must conclude that this complaint is not well founded.

CA-00062511- 009:

The Complainant withdrew this complaint at hearing.

CA-00062511- 010:

I noted the Complainant contention that he did not receive his public holiday entitlements and that he was due to be paid for St Patrick’s Day 2024, Easter Monday, and the first Monday in May June, August and October 2024 and that he never received the relevant payment.

CA-00062511- 011:

I noted the Complainant contention that he did not receive a statement in writing of his terms of employment, save for his initial contract provided to him at the commencement of employment.

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.

CA-00062511- 001:

The Complainant stated that he was not given compensation for working on a Sunday.

I have concluded that the within complaint is well founded and I decide accordingly. Furthermore, I direct the Respondent to pay the Complainant the amount of €2500 as compensation for the breaches of the Act.

CA-00062511- 002:

The Complainant stated that he did not receive his paid holiday/annual leave entitlement.

I have concluded that the within complaint is well founded and I decide accordingly. Furthermore, I direct the Respondent to pay the Complainant the amount of €1,819.27 for annual leave outstanding at the time of termination of his employment and the amount of €2500 as compensation for the breaches of the Act. The amount payable for annual leave outstanding is subject to relevant statutory deduction.

CA-00062511- 003:

The Complainant stated that he did not receive his paid holiday/annual leave entitlement.

I noted that this complaint is a duplicate of CA-00062577-002 and so I found that this complaint was not well founded, and I decide accordingly.

CA-00062511- 004:

The Complainant stated that he did not receive the appropriate payment in lieu of notice of termination of his employment.

I found that the within complaint is well founded and that the Complainant was entitled to one weeks’ notice of termination of employment. In all of the circumstances I decide that the complaint is well founded, and I direct the Respondent to pay the Complainant the amount of €546.00 gross pay.

CA-00062511- 005:

The Complainant stated that he was not notified of a change to his terms of employment.

I have concluded that the within complaint is well founded and I decide accordingly. Furthermore, I direct the Respondent to pay the Complainant the amount of €2184 as compensation for the breach of the Act.

CA-00062511- 006:

The Complainant stated that he did not receive his statutory minimum period of notice on the termination of his employment or payment in lieu thereof.

I have concluded that this complaint was well founded. I note that I have already addressed the matter of payment in lieu of notice under CA-00062511-004 above and in these circumstances, I direct the Respondent to pay the Complainant the amount of €2500 as compensation for breaches of the Act.

CA-00062511- 007:

The Complainant stated that he did not receive all his rights during the period of notice.

As his entitlement to notice has been dealt with under CA-00062577-004 and CA-00062577-006 above I concluded that this complaint is not well founded, and I decide accordingly.

CA-00062511- 008:

The Complainant stated that he did not receive minimum notice of termination of the contract of employment from his employer.

As his entitlement to notice has been dealt with under CA-00062577-004 and CA-00062577-006 above I concluded that this complaint is not well founded, and I decide accordingly.

CA-00062511- 009:

The Complainant withdrew this complaint at hearing.

CA-00062511- 010:

The Complainant stated that he did not receive his public holiday entitlements.

I have concluded that the within complaint is well founded and I decide accordingly. I direct the Respondent to pay the Complainant the amount of €655.20 in unpaid wages for public holiday entitlements and the amount of €2500 as compensation for breaches of the Act.

CA-00062511- 011:

The Complainant stated that he did not receive a statement in writing of his terms of employment, save for his initial contract provided to him at the commencement of employment.

I have concluded that the within complaint is well founded and I decide accordingly. I direct the Respondent to pay the Complainant the amount of €2184 as compensation for breaches of the Act.

Dated: 10th July 2025

Workplace Relations Commission Adjudication Officer: Patricia Owens

Key Words:

Payment of wages; organisation of working time, public holiday entitlement, minimum notice, terms of employment