ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052759
Parties:
| Complainant | Respondent |
Parties | Carenin Rosa De Oliveira | Dinin Experiences Ltd. trading as Karen´s Diner |
| Complainant | Respondent |
Anonymised Parties |
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Representatives |
| Roberta Urbon, Peninsula Business Services Ireland |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00064557-001 | 03/07/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00064557-002 | 03/07/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00064557-003 | 03/07/2024 |
Date of Adjudication Hearing: 25/03/2025
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 a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, the Director General of the WRC may make a referral of said matter to the Adjudication Services.
Following said referral, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
The Complainant herein has brought a three complaints of contravention of the Payment of Wages Act 1991 - which said Act is an Act contained in Schedule 5 of the Workplace Relations Act of 2015. The Complainant asserts that her Employer has not paid her or has paid her less than the amount due to her. 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.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form which is dated the 3rd of July 2024 allows me to consider a period of six months which immediately preceded that date.
“Wages”, in relation to an employee, means any sum payable to the employee by the employer in connection with the 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 contact of employment or otherwise, and
- (b) Any sum payable to the employee on the termination by the employer of the Contract of Employment without his having given to the employee the appropriate notice of the termination, being a sum paid in lieu of the giving of such notice.
Background:
This matter was heard over the course of two sessions and by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.
In response to 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), I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.
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 her preferred language. The interpreter did not guide or assist the person for whom the interpreter was sought i.e. 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.
The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 3rd of July 2024. In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding this date.
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Summary of Complainant’s Case:
The Complainant was not represented and made her own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an affirmation to tell the truth The Complainant relied on the submission set out in the Workplace Relations Complaint Form. No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that over the course of six months of employment with this busy restaurant her Employer failed to pay to the Complainant the gratuities, tips and service charges collected by the Respondent and intended to be distributed to the Employees including the Complainant. 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.
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Summary of Respondent’s Case:
The Respondent had full representation at this hearing. The Respondent provided me with a written submission dated the 18th of November 2024. Over the course of two separate dates no person came forward from the Respondent company to offer evidence on behalf of that company. The Respondent Representative made the case for her client and on instruction from the client. The Respondent concedes that there are some monies owed, though has not provided evidence which allows me to know how the monies should be calculated. The Complainant’s assertions have not therefore been repudiated. 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.
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Findings and Conclusions:
The Complainant gave evidence concerning her employment with the Respondent restaurant. This is a busy restaurant on O’Connell Street. The Complainant suggested to me that there was a general unease amongst the staff concerning the non-distribution of tips and gratuities and service charges. The Complainant gave evidence that the Employer knew that there was a problem but kept putting off making any payment. The Payment of Wages (Amendment) (Tips and Gratuities) Act 2022 introduced several key provisions to protect employees' rights concerning tips and gratuities. The Employer is prohibited from using tips and gratuities to supplement employees' contractual wages. The Employer must distribute electronic tips and must treat any monies gathered as a "service charge" in the same way. Workers are entitled to receive statements detailing the total tips collected and their individual share during a relevant period. These measures aim to ensure that employees receive the full benefits of tips and gratuities, promoting fairness and transparency in their distribution. Ultimately the Complainant opted to leave this position as she felt that the non-payment of the monies owed was accumulating with no end in sight. She brought her complaint which covers her full period of employment. The Complainant advised that she could not give an exact figure as to the payments that were not made and has therefore erred on the side of modesty. I accept that the Complainant who gave very compelling evidence is only looking for what she says ought to have been paid to her in the course of her employment.
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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 6 of the Payment of Wages Act, 1991 CA-00064557-001 – The complaint herein is well founded and I direct that the Employer herein pay to the Respondent the sum of €450.00 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00064557-002 - The complaint herein is well founded and I direct that the Employer herein pay to the Respondent the sum of €231.00 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00064557-003 - The complaint herein is well founded and I direct that the Employer herein pay to the Respondent the sum of €115.00 |
Dated: 6th May 2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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