Complainant

Respondent

Parties

Liam  Kerrigan

Wallace Taverns Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

Hugh Guidera BL, instructed by Anthony Hanahoe M.E. Hanahoe Solicitors

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-00066496-001

06/10/2024

The Complaint is that the Respondent is refusing to pay the Complainant holiday entitlements and bank holidays outstanding on the cessation of his employment.

The Complainant gave evidence under affirmation that he has not been paid for annual leave and bank holiday entitlements. He did not present any written material to the hearing, other than his complaint form.

The Complainant had been asking for a contract of employment since commencing employment and never received one. He conceded that he did leave without notice and had a sense of 57 hours worked on any given week without any supporting documentation.

The Complainant sets out that he repeatedly asked for a contract of employment, and none was provided to him.

In summary, the Complainant contends that he received no annual leave and no bank holiday pay during this employment and that his has not been properly paid on termination of the employment.

The Respondent set out that the Complainant left his employment suddenly and without warning forcing him to close the restaurant part of his business.

The Respondent case is that the circumstances of the resignation are neither relevant nor accurate and that the matter will likely come to a mathematical calculation.

It is rejected that there was a repeated demand for a contract.

The Complainant was paid 21 days holiday. The restaurant was closed for Christmas, Stephen’s day and New Years Day where he was also paid. The claim of a 57-hour work week is denied and that the Complainant worked a 40-hour week on average.

It is accepted that the Complainant is entitled to 20 days annual leave plus 10 days public holiday of these he has been paid for 21 and enjoyed 3 public holidays off paid and the Respondent accepts 6 days maximum are due to be paid.

Of the 20 days paid, included was a seven-day period in January 2024 in respect of the Complainant being sick with no certificate provided and he was not entitled to be considered working. These days were paid to him as holiday pay to ensure he had an income.

On the documentary evidence, the rostering and record-keeping of his own hours was delegated to the Complainant as a “senior employee” in line with the General Exemptions of the Act. Following the sudden departure these records seen shortly before; have not been seen since.

The Respondent submitted documentary evidence to the effect that the Complainant was due to be paid for 19 days holiday and was instead paid for 21 days, plus €500 cash in the September and was paid in full for uncertified sick leave from the 22nd of April to the 28th of April where he was paid annual leave to ensure he has some income.

The Respondent supplied standard terms and conditions of employment and Complainant pay record and a copy of the Medical Certificate for the period 22/04-29/04 post-hearing.

Evidence in Chief and Cross-examination

In cross-examination the Complainant was asked about the complaint form submitted and confirmed the details of the form in terms of being just short of one year and the payment details and accepted that he was paid for the 7 days sick leave as annual leave and the Complainant conceded this point as he did not have records.

It was put to the Complainant that it was his job to manage the roster and the records of work. That he oversaw filing these away in the Chef’s office. This was denied by the Complainant; that these were collected by the main office.

It was put to the Complainant that these records were not seen since he left. It was his response that the onus was on the Employer on this matter.

It was agreed he was to be paid a weekly wage and not an hourly rate and he did not record his weekly hours and this was agreed

It is the Respondent case that he couldn’t locate records of working hours as these were normally kept as part of the pay record for staff hourly paid, but the Complainant was weekly paid, and he left him to keep those records himself in the Chef’s office which cannot be found.

The Complainant stood over his claim that he had taken no annual leave during the employment. It was stated that he was paid zero holiday days, to the best of his knowledge, that he has no payslip that showed annual leave.

The submissions from both parties were brief with only oral submissions being presented at the original hearing and only the Complainant form available as to his case. Having allowed the parties to make provide further submission the matter wasn’t’ given much more clarity.

The Respondent submitted as collection of documents within the time set out:

·        A record of Complainant leave of 21 days and payment of €500 in cash.

·        A document of all staff working hours excluding hours worked by the Complainant.

·        A copy of a contract that would be given, but admitted as not being given to show the T&Cs of the Respondent organisation

·        Pay record for the Complainant which does not explain leave and public holidays.

·        A medical certificate from 22/04 returning on 29/04.

·        A collection of handwritten documents purporting to be records of absences.

The Complainant disputes these are accurate and convincing records and, apart from the certificate for sickness, I am of the same mind.

It is clear is that the contract of employment has not been reduced to writing despite calls from the Complainant and his rights to have his terms and conditions supplied to him under legislation. It emerged that there was a deliberate withholding of this on the basis that the Complainant had not provided references to the Respondent.

OWTA Records

It is clear is that there is no available record of time worked in accordance with the Organisation of Working Time Act. It was set out that the kitchen was managed differently to the rest of the enterprise, but no reason for this given other than the Complainant was a salaried employee rather than hourly paid as were the other staff.

The 1997 Act does not make an exception for this, its concern is maximum hours worked and the recording of correct rest periods. It is the evidence of the Respondent that the records were kept by the Complainant and have not been seen since the Complainant left the employment suddenly and without notice.

In the absence of documentation and contract, there is nothing to show me that the Complainant was responsible for the security of these records. The Act does provide a limited exemption for the most senior of staff to record their own hours where they have autonomy over their time, this can’t logically be the case in a business that has opening and closing hours. In any event, the Act still requires the hours be recorded and maintained for inspection and the responsibility for this lies  with the Respondent, in line with statute.

It is conceded by the Respondent that there are 6 days remaining in public holiday leave to be paid, but contested that there are any further days in that regard and put forward that the business was closed for public holidays on Christmas, St Stephen’s Day and New Years’

During cross-examination, the Complainant accepted that he was able to use annual leave for the time off whilst sick for seven days, leaving a further 13 days outstanding. There is nothing convincing me that other days were discharged properly

Amendment of Pleadings

There is an issue of a breach of the Terms of Employment (Information) Act, 1994, but the matter has not been referred to me as a complaint under that Act and the Complainant did not elucidate such a complaint during the hearing; I will confine myself to the complaint before me.

However, from the narrative of the complaint I believe this is a Payment of Wages issue and falls to be decided under that statute. The parties will note the WRC complaint form is not a statutory document and I am entitled to infer from the narrative the actual complaint intended.

In considering this I am guided by the Superior Courts where it has been held that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation.  I note in the case of County Louth VEC v. Equality Tribunal [2009 IEHC 370] where the High Court held as follows:

“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.” 

I determine this complaint is properly before me as the narrative is clearly set out in the Complainant’s WRC Complaint Form filed with the WRC and the Respondent suffers no prejudice on the basis the fact is clearly referred in the complaint form and correlates with a cause of action, albeit not selected on the complaint form.   

Conclusions

Therefore, considering the foregoing I have decided that the Complainant is due payment for 13 days annual leave not discharged on the termination of his employment and 7 days of public holidays to a total of 20 days’ pay.

The Complainant set out in the complaint form that they worked 52 hours per week for a total weekly compensation of €850.00 gross, giving an daily rate of €170 gross to a total amount of €3,400.

For the reasons set out above, as the Workplace Relations Complaint form is not a statutory form, I deem it appropriate in the interests of fairness to amend the complaint to be under section 6 of the Payment of Wages Act, 1991 and I have decided that the Respondent will pay the Complainant the sum of €3,400.00 (gross)

I decide this complaint is well-founded.  Therefore, I direct the Respondent to pay the Complainant €3,400.00 (gross).

No records, working time records exceptions, no terms and conditions,