Complainant

Respondent

Parties

Mohanned Wafik  Raies

Genie Wishes Ltd. (In liquidation)

Complainant

Respondent

Anonymised Parties

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Representatives

Sheila Neary North Leinster Citizens Information Service CLG

Michael Kennedy Irish Insolvency Liquidations

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00060558-001

15/12/2023

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

CA-00060558-002

15/12/2023

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

CA-00060558-004

15/12/2023

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

CA-00060558-006

15/12/2023

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

CA-00060558-007

15/12/2023

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

CA-00060558-008

15/12/2023

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

CA-00060558-009

15/12/2023

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

CA-00060558-010

15/12/2023

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

CA-00060558-011

15/12/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses gave evidence under affirmation.  The Liquidator was in attendance at the hearing and noted that the company director would not be attending the hearing and noted that he was not in a position to provide knowledge or evidence in relation to the complaints to hand.

The complainant lodged his complaints on 15 December 2023.  Therefore, in accordance with Section 41(6) of the Workplace Relations Act, 2015, the cognisant period for this complaint is the 6 months prior to that date.  No application to extend the deadline was received.

He was employed from 3 September 2022 to 31 October 2023 on an annual salary of €30,000.

CA-00060558-001 Unfair Dismissal

The complainant submitted that he sought payment for all of the hours that he worked and in relation to his annual leave.  The employer became very angry and abusive and told the complainant that he was not entitled to any more pay.  He was told to leave and not come back.  The complainant submitted that he was left homeless as he was also sharing accommodation with the employer who refused to allow him to enter the house.

In evidence the complainant stated that he found alternative employment in December 2023 although he had to wait for employment permission in February 2024.  He stated that he was at a loss of €12,195.32

CA-00060558-002 Sunday Working

The complainant submitted that he was required to work Sundays and that he worked 58 Sundays but was not paid a premium for them or at all.

CA-00060558-004 Shortfall in Wages

The complainant submitted that he was due an addition €14192 in wages not paid for the hours he worked.

CA-00060558-006 Annual Leave

The complainant submitted that he was not allowed to take any annual leave while working for this employer.

CA-00060558-007 Public Holiday Entitlements

The complainant submitted that he received no public holiday entitlement during his employment.

CA-00060558-008 Payment in Lieu of Termination

The complainant submitted that he received no notice period nor pay in lieu of notice when his employment was terminated.

CA-00060558-009 Rest Breaks

The complainant submitted that he never received any rest breaks in accordance with the Act.

CA-00060558-010 Maximum Hours

The complainant submitted that he was required to work in excess of 55 hours per week for the duration of his employment.

CA-00060558-011 Terms of Employment

The complainant submitted that he did not receive his terms and conditions in writing.  However, in evidence he confirmed that he received a written contract of employment.  This was submitted in support of his complaints.

The Liquidator was in attendance.  No evidence or submissions were provided on the part of the respondent.

CA-00060558-001 Unfair Dismissal

The complainant stated that he was dismissed when he sought the monies that were due to him.  He said that the respondent dismissed him without good reason and with no notice. No evidence was provided to contradict that contention.

Section 6(1) of the Unfair Dismissal Act states as follows:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Arising from the foregoing, I find that the complainant was unfairly dismissed.  The complainant gave evidence that he was contracted to work a 39-hour week on an hourly rate of €14.79.  This amounts to a weekly wage of €576.81.

The complainant gave evidence that he was employed from September to 31 Oct 2023.  Following his dismissal, he found employment in December 2023 but only received permission to take up work in February 2024.  Accordingly, his loss of earnings for 16 weeks amounts to €9,228.96.  I am satisfied that an award of 100% is appropriate in all the circumstances.

CA-00060558-002 Sunday Working

The complainant submitted that he was required to work Sundays and was not paid a premium or at all for this work.  He submitted a copy of his contract which is silent as to Sunday working hours or to a Sunday Premium.

Section14(1) of the Organisation of Working Time Act states as follows:

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

Having regard to the evidence of the complainant he worked 20 Sundays during the cognisable period.  No evidence was presented to contradict that evidence.  Having regard to the foregoing, I find that the complaint is well founded, and I require the respondent to pay the employee the sum of €2,675 equivalent to the unpaid Sunday hours which I consider to be just and equitable in all the circumstances.

CA-00060558-004 Shortfall in Wages

The complainant submitted that he was not paid for the additional hours that he worked.  He submitted that this amounted to €14,192.  This evidence was uncontested.  I find that the complaint is well founded.  However, when considering the additional hours that he worked during the cognisable period and having regard to my decision regarding Sunday work (above), I find that this shortfall amounts to €1,922.70.  This figure is arrived at by taking an additional average of 6.5 hours per week for each cognisable period.

CA-00060558-006 Annual Leave

The complainant stated that he was not allowed to take any annual leave during his employment.  The contract of employment states that an employee shall be entitled to 8% of the hours he worked up to a maximum of 20 working days.  It also states that any outstanding holiday pay will be paid upon termination of employment. 

Section 19(1) of the Organisation of Working Time Act states that

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

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

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

Having regard to the foregoing, the complainant had built up an entitlement to 20 days holidays which were due to be paid out to him upon termination.  Accordingly, I find that the complaint is well founded, and I require the respondent to pay the employee the sum of €2,307.24 equivalent to the unpaid Annual Leave accrued by the complainant, which I consider to be just and equitable in all the circumstances.

CA-00060558-007 Public Holiday Entitlements

The complainant submitted that he received no public holiday entitlement during his employment.

Section 21(1) of the Organisation of Working Time Act states as follows:

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

During the cognisable period, the complainant was entitled to two days public holidays.  No evidence was given to contradict the complainant’s assertions.  Accordingly, I find that the complaint is well founded, and I require the respondent to pay the employee the sum of €236.64 equivalent to the unpaid Public Holidays accrued by the complainant, which I consider to be just and equitable in all the circumstances.

CA-00060558-008 Payment in Lieu of Termination

The complainant submitted that he was not paid a payment in lieu of termination to which he was entitled.  In accordance with Section 4(2)(a) of the Minimum Notice and Terms of Employment Act 1973, the complainant was entitled to one weeks’ notice.

Under the Payment of Wages Act, wages consist of the following:

wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Accordingly, I find that the complaint is well founded, and I require the respondent to pay the employee the sum of €576.81 equivalent to the unpaid minimum notice owing to the complainant, less any lawful deductions, which I consider to be just and equitable in all the circumstances.

CA-00060558-009 Rest Breaks

The complainant submitted that he never received any rest breaks in accordance with the Act.  His evidence to this effect was not contradicted by the respondent.  Accordingly, I find that the complaint is well founded and I require the respondent to pay the employee the sum of €4000, which I consider to be just and equitable in all the circumstances.

CA-00060558-010 Maximum Hours

The complainant submitted that he was consistently required to work over the maximum hour allowable under the Act for the duration of his employment.  His evidence to that effect was not contradicted by the respondent.

Section 15(1) of the Organisation of Working Time Act deals with Weekly Working Hours and states as follows:

15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

Having regard to the evidence presented to me in relation to this matter, I find that the complaint is well founded, and I require the respondent to pay the employee the sum of €2000, which I consider to be just and equitable in all the circumstances.

CA-00060558-011 Terms of Employment

The complainant submitted that he did not receive his terms and conditions in writing.  However, in evidence he confirmed that he received a written contract of employment.  This was submitted in support of his complaints.  Having regard to the foregoing, I find that the complaint is not well founded.

CA-00060558-001 Unfair Dismissal

Having regard to all the written and oral evidence submitted in relation to this matter, my decision is that the complainant was unfairly dismissed.  I award him an amount equivalent to 100% of his loss of earnings, which amounts to €9,228.96

CA-00060558-002 Sunday Working

Having regard all of the written and oral evidence presented in relation to this matter, my decision is that the complaint is well founded, and I require the respondent to pay the employee the sum of €2,675 which I consider to be just and equitable in all the circumstances.

CA-00060558-004 Shortfall in Wages

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is well founded, and I direct the employer to pay the complainant the amount of €1,922.70 which I consider to be reasonable in the circumstances.

CA-00060558-006 Annual Leave

Having regard to all the written and oral evidence in relation to this complaint, my decision is that the complaint is well founded, and I require the respondent to pay the employee the sum of €2,307.24, which I consider to be just and equitable in all the circumstances.

CA-00060558-007 Public Holiday Entitlements

Having regard to all the written and oral evidence in relation to this complaint, my decision is that the complaint is well founded, and I require the respondent to pay the employee the sum of €236.64, which I consider to be just and equitable in all the circumstances.

CA-00060558-008 Payment in Lieu of Termination

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is well founded, and I direct the employer to pay the complainant the amount of €576.81 which I consider to be reasonable in the circumstances.

CA-00060558-009 Rest Breaks

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is well founded, and I direct the employer to pay the complainant the amount of €4000 which I consider to be reasonable in the circumstances.

CA-00060558-010 Maximum Hours

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is well founded, and I direct the employer to pay the complainant the amount of €2000 which I consider to be reasonable in the circumstances.

CA-00060558-011 Terms of Employment

Having regard to all the written and oral evidence provided in relation to this complaint, my decision is that this complaint is not well founded.

Unfair Dismissal – evidence not contested – unfair dismissal established – award of loss of earnings – Organisation of Working Time Act – complaints well founded – award of compensation – Payment of Wages – breach established – compensation awarded – Terms and Conditions of Employment – not well founded.