Complainant

Respondent

Parties

Bassem  Friji

Genie Wishes Limited Lalla

Complainant

Respondent

Anonymised Parties

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Representatives

Sylvia Smith 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 27 of the Organisation of Working Time Act, 1997

CA-00060651-002

20/12/2023

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

CA-00060651-004

20/12/2023

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

CA-00060651-006

20/12/2023

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

CA-00060651-007

20/12/2023

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

CA-00060651-008

20/12/2023

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

CA-00060651-009

20/12/2023

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

CA-00060651-010

20/12/2023

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

CA-00060651-011

20/12/2023

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

CA-00060651-012

20/12/2023

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 20 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.

The complainant was employed with the respondent from 8 June to 31 October 2023 on an annual salary of €30,000.

CA-00060651-002 Sunday Working

The complainant submitted that he was required to work Sundays and that he worked 21 Sundays but was not paid a premium for any of them or at all.

CA-00060651-004 Forced Repayment of Wages

The complainant submitted that although he was paid a gross salary of €615 on paper per week, the respondent forced him to repay €137 per in cash once he had received his wages into his bank account.

CA-00060651-006 Annual Leave

The complainant submitted that he was not allowed to take any annual leave while working for this employer. He stated that he was owed 9 days leave.  He stated that he received €789 towards his holiday entitlement from the employer.

CA-00060651-007 Public Holiday Entitlements

The complainant submitted that he received no public holiday entitlement during his employment but was entitled to two days for 7 August and 30 October 2023.

CA-00060651-008 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.  He stated that he was entitled to one weeks’ notice

CA-00060651-009 Rest Breaks

The complainant submitted that he never received any rest breaks in accordance with the Act.  He stated that the employer became abusive when he asked to take breaks.

CA-00060651-010 Maximum Hours

The complainant submitted that he was required to work 58 hours per week for the duration of his employment.

CA-00060651-011 Unlawful deductions no tips received.

The complainant submitted that he never received any tips that had been paid over to the respondent.

CA-00060651-012 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.

Rate of Pay:

Although the complainant submitted that he was paid €615.38 per week on paper, the contract of employment he submitted indicated that his rate of pay was €576.92 per week.  This latter amount has been taken to be the complainant’s rate of pay in subsequent consideration.

CA-00060651-002 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 €2,307.80 equivalent to the unpaid Sunday hours which I consider to be just and equitable in all the circumstances.

CA-00060651-004 Forced Repayment of Wages

The complainant submitted that he was forced to repay €137 per week to his employer in cash.  He submitted that this amounted to €2877.  This evidence was uncontested.  I find that the complaint is well founded.  However, when considering the cognisable period, the total regarding forced repayment amounts to €2740

CA-00060651-006 Annual Leave

The complainant stated that he was not allowed to take any annual leave during his employment.  He stated that he worked up an entitlement of 9 days.  His contract 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 9 days holidays which were due to be paid out to him upon termination.  However, the complainant confirmed that €789 was paid to him towards his holiday pay.  Accordingly, I find that the complaint is well founded, and I require the respondent to pay the employee the sum of €249.51 equivalent to the unpaid Annual Leave accrued by the complainant, which I consider to be just and equitable in all the circumstances.

CA-00060651-007 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 €230.78 equivalent to the unpaid Public Holidays accrued by the complainant, which I consider to be just and equitable in all the circumstances.

CA-00060651-008 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 €576.8192 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-00060651-009 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 €1000, which I consider to be just and equitable in all the circumstances.

CA-00060651-010 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 €500, which I consider to be just and equitable in all the circumstances.

CA-00060651-011 Unlawful Deductions, no tips received.

The complainant submitted that he received no tips or gratuities during his employment.  However, he provided no evidence of an entitlement to, nor an indication of the level of, tips or gratuities.  In the circumstances, I find that the complaint is not well founded.

CA-00060651-012 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-00060651-002 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 €2,307.80 which I consider to be just and equitable in all the circumstances.

CA-00060651-004 Forced Repayment of 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 €2,740 which I consider to be reasonable in the circumstances.

CA-00060651-006 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 €249.51, which I consider to be just and equitable in all the circumstances.

CA-00060651-007 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-00060651-008 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 €576.92 which I consider to be reasonable in the circumstances.

CA-00060651-009 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 €1000 which I consider to be reasonable in the circumstances.

CA-00060651-010 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 €500 which I consider to be reasonable in the circumstances.

CA-00060651-011

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.

CA-00060651-012 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.