Complainant

Respondent

Parties

Xiaofeng  Gao

Eskimo Gao Ming Limited Lam’S Asian Cuisine And Eskimo Pizza

Complainant

Respondent

Anonymised Parties

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Representatives

Pretty Ndawo Migrant Rights Centre Ireland

Respondent Company Secretary

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-00065872-001

09/09/2024

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

CA-00065872-002

09/09/2024

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

CA-00065872-003

09/09/2024

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

CA-00065872-004

09/09/2024

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

CA-00065872-005

09/09/2024

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

CA-00065872-006

09/09/2024

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

CA-00065872-007

09/09/2024

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

CA-00065872-008

09/09/2024

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

CA-00065872-009

09/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065872-010

09/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00065872-011

09/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00065872-012

09/09/2024

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

CA-00065872-013

09/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00066687-001

14/10/2024

The complainant, Mr Xiaofeng  Gao,  was initially employed by Mr Ming Gao.  Subsequently the respondent was established as a limited company and took over the employment of the complainant.  Mr Ming Gao is a Director of the respondent company and his wife Ms Xiuquin Wu is the Company Secretary. Mr Ming Gao was unable to attend the hearing and was legally represented concerning any complaints made against him as the earlier employer.  Ms Xiuquin Wu represented the company herself. 

Evidence was given by Mr Xiaofeng  Gao (the complainant) and Ms Xiuqiun Wu (Company Secretary of the respondent).

Evidence was given under oath/affirmation and subject to cross examination.  I offered Ms Xiuquin Wu the opportunity to cross examine the complainant after his evidence which she declined.

An interpreter was in attendance the translation was given under oath/affirmation.

All correspondence received was considered by me in arriving at my decision.

This is a claim under the following acts: 

(a)         National Minimum Wage Act, 2000  

(b)         Organisation of Working Time Act, 1997 

(c)          Payment of Wages Act, 1991

(d)         Employment Equality Act, 1998

(e)         European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003

The Company Director of Eskimo Gao Ming Limited during the Complainants’ term of employment was Mr. Ming Gao  and Xiuquin Wu (secretary).

The registered address of the Eskimo Gao Ming Limited is Main Street, Ballyjamesduff, Cavan, A82KW32, Ireland the same address as the location of Lam’s Asian Cuisine and Eskimo Pizza.

Transfer during employment:  The Complainant began employment with Ming Gao on the 01/08/2022 on foot of an employment permit.  Thereafter, there appears to have been a transfer of employer to Eskimo Gao Ming Limited on the 09/10/2023 until he finished his employment on 07/08/2024.

The Complainant states he was never informed of this transfer. The Complainant’s place of employment and job role remained unchanged and he was continuously directed by Mr. Ming Gao during the entirety of his employment.

The Complainant is a Chinese national.  He met Mr. Ming Gao in 2019. Their mothers knew each other and in 2022 the Complainant asked Mr. Ming Gao for a job in Ireland.  The Complainant states he was offered employment by Mr. Ming Gao on condition that he pays him 240,000 Chinese Yuan (approximately €30,600). The Complainant informed Ming Gao that he did not have the requested amount. Mr. Ming Gao told the Complainant that he will make payments back to him while working in Ireland. On 27/07/2022, the Complainant was given a promissory note by Mr. Ming Gao agreeing to the terms stated above. Initially, the Complainant was not informed how he was going to make payments back to Mr. Ming Gao. Later Mr. Ming Gao informed the Complainant that he would be required to pay €10,000 annually and the money would have to be paid in cash to Ming Gao’s mother in China by the Complainants’ mother.

In July 2022, the Complainant was instructed by Ming Gao to sign an employment contract as part of the Complainant’s permit application. The contract of employment was in English, and the Complainant had very limited English, thus, he did not understand its’ content and was never provided with a copy. The Complainant arrived in Ireland on 30/07/2022 and began working for Ming Gao on 01/08/2022.

The conditions of the employment permit were that the Complainant was to be employed as a Chef de Partie working with the Respondent(s) restaurant for 39 hours per week at a rate of €14.79 per hour.  

The Complainant made a data subject access request to Eskimo Gao Ming Limited on 05/09/2024 for all documents relating to his employment but has yet to receive any response.   

The Complainant was employed between 01/08/2022 and 06/08/2024. The Complainant worked for the Respondent(s) at Lam’s Asian Cuisine and Eskimo Pizza located at Main Street, Ballyjamesduff, Cavan. The Complainant was provided with accommodation at the same address.  The Complainant was employed as a Chef de Partie and his duties at the restaurant included but were not limited to food preparation, packing food for delivery and cleaning.

The Complainant worked 6 to 7 days per week.  There was no set pattern to this.  When he worked 6 days per week his day off would fall between Monday to Wednesday.  There were some periods during his employment he worked 7 days per week over several weeks without a day off.  

In 2022 and 2023 the Complainant states his working weeks were evenly split between 6 days or 7 days per week i.e. he worked 7 days per week 50% of the time.   Then in 2024 the Complainant states he only had 4 days off between January and when he left employment on 07/08/2024 so he worked 7 days per week much more frequently.      

The Complainant started work at 2pm and worked until 12am when working Monday – Thursday.  He started work at 2pm and finished at 1am when working Friday – Sunday.  

A table of his working hours when working a 7-day week is provided below. 

Day        Start time           Finish time         Total hours (No.)

Mon      14:00                    00:00                  10.00

Tue        14:00                    00:00                  10.00

Wed      14:00                    00:00                  10.00

Thu        14:00                    00:00                  10.00

Fri          14:00                    01:00                  11.00

Sat         14:00                    01:00                 11.00

Sun        14:00                    01:00                 11.00

                             Weekly Total                   73.00

In the last several weeks of his employment, the Complainant took time and date stamped photos indicating his start and finish times.  In summary when the Complainant worked 6 days his total weekly hours were 63 and when working a 7-day week his total weekly hours were 73.  

There was no clock-in or clock-out system either written or electronic in place during his employment.   

 The Complainant did not receive proper rest breaks nor was a system in place to record rest breaks. At most, the Complainant states he received a maximum of a 10-minute break during his shift.   

The Complainant worked Public Holidays.  He did not receive any corresponding public holiday entitlement. 

The Complainant worked on Sundays.  He did not receive any Sunday premium payment.  

The Complainant did not receive any annual leave entitlements during his employment.

From 01/08/2022 (start of employment) until March 2023, the Complainant was paid in cash.   In April 2023 the Complainant opened an Irish bank account and he was paid weekly. 

The Complainant was normally paid on a weekly basis but the amounts paid to him varied substantially over the course of his employment.  The Complainant was told at first that he would be paid €350 per week but that €200 would be deducted to pay back his recruitment fee.  No payslips were ever provided. 

From the beginning of his employment the Complainant was paid in cash.  Then as previously stated in April 2023 the Complainant opened a bank account and in July 2023, he began to receive his pay by bank transfer. After receiving pay directly to his bank account, the Complainant was instructed to pay back a large portion and in some cases all of the pay he received directly back to the Respondent. The payments back to the Respondent happened via Alipay and WeChat bank transfers to Ming Gao’s wife’s account, Xiuqin Wu, who is also the registered secretary for Eskimo Gao Ming Ltd.  A record of all payments based on the recollection of the Complainant and from official bank statements is provided.  Screen shots of the WeChat transfers and Alipay summary statement of payments from the Complainant back to the Respondent are provided. 

One example which evidences some of the payment and deduction arrangements made by the Respondent was a handwritten note given to the Complainant in April 2024 which had been provided.

The Complainant was also told that he would receive €60 extra when he worked 7 days a week, but this was inconsistent. 

On 21/07/2023, the Complainant received a €10,000 payment from Ming Gao via bank transfer as backpay for his wages. He was then instructed by Ming Gao to pay this money back as payment for his recruitment fee. The Complainant transferred this €10,000 to his mother’s bank account in China.  The receipt of this transfer to the Complainant’s mother on 26/07/2023 is provided.  The Complainant’s mother then withdrew this money in cash.  The Complainant’s parents then went to Ming Gao’s parents’ house on 29/07/2022 which is nearby and handed over 80,000 Chinese Yuan (€10,160) to Ming Gao’s parents. The Complainant’s parents received a handwritten note confirming the transaction.

At the end of March 2024 the Complainant was only earning €60 per week after payments into his account and back out to the Respondent were completed.  The Complainant was also working 7 days per week much more frequently.   The continuous excessive hours and extremely low pay below what originally promised to him was wearing him down.    The Complainant went to Ming Gao to ask for time off and he was never given this.  He was told he needed to work long hours to pay off his debt. The Complainant also worked every day during the month of July. The Complainant eventually decided to leave his employment and accommodation on 07/08/2024.

The Complainant states that throughout his employment he was fearful and felt intimidated by Ming Gao.  The Complainant had little English and no other connections in Ireland.  The Complainant was fully aware that his employment permit tied him to work only for the Respondent(s). The Complainant depended on the Respondent(s) for accommodation, food and ultimately his legal immigration permission.  He was told he needed to work extra hours to pay off the debt of his recruitment fees. The Complainant was also extremely worried that the Ming Gao would make trouble for his family in China.    

In November 2023 Ming Gao requested the Complainants’ passport under the pretence of administrative reasons. The Complainant requested his passport be returned to him several times, however, all his attempts were ignored by Ming Gao.  The Complainant felt trapped and could not go back to China as Ming Gao held his passport, thus, restricting his movement.  His passport was eventually retrieved from Ming Gao after he left employment by a member of An Garda Siochana.  

National Minimum Wage Act, 2000 (NMWA)

On 05/09/2024, the Complainant sent a letter via registered post to Eskimo Gao Ming Ltd at the Company’s registered address requesting a statement of his average hourly rate of pay.  Thereafter, the Complainant sent another letter to Ming Gao on 10/09/2024 requesting a statement of his average hourly rate of pay which was delivered on 11/09/2024. 

To date, the Complainant has not received statement of his average hourly rate of pay in compliance with Section 23 of the NMWA.   

The Complainant did not receive payment in accordance with the NMWA during the entirety of his employment 01/08/22 – 07/08/2024, the period to which this dispute relates.  His average hourly rate of pay varied widely during his employment based on the varying payments made weekly by the Respondent to the Complainant and the payments made immediately back to the Respondent by the Complainant for “recruitment fees”.     

The payments received by the Respondent from the Complainant were in violation of Section 18 of the NMW Act. 

Section 18.—(1) Nothing in this Part prevents the deduction from any pay to which an employee is entitled in accordance with this Act, or the payment by an employee to an employer, of any amount permitted in accordance with section 5 of the Payment of Wages Act, 1991, or any other enactment or instrument made under an enactment.

The payments made by the Complainant to the Respondent were not permitted in accordance with Section 5 of the Payment of Wages Act or any other act.  In addition receipt of payment by an employer for recruitment fees is in violation of Section 55 of the Employment Permit Act, 2024.

The Complainant notes that Section 26(1) of NMWA provides that where a complaint is upheld, the Adjudication Officer may award redress of arrears of pay in respect of “the period to which the dispute relates.”  The Complainant requests the Adjudication Officer to follow the approach of the Labour Court in Sue Ryder Foundation Ireland Ltd v Maureen Meenagh (which was subsequently applied in A Trainee Solicitor vs Law Firm and upheld by the Labour Court in Imtiaz Ahmed Ranjha Sky Solicitors v Imtiaz Khan and award the Complainant redress of arrears for the entire period to which the dispute relates.

The Complainant is seeking an award of arrears of wages due in accordance with the minimum entitlement under the NMWA covering the entire period to which the dispute relates. The total arrears due is calculated to be €65,505. 

 Organisation of Working Time Act, 1997 (OWTA)

Sunday Premium Payment 

The Complainant worked a total of 105 Sundays during the period of his employment. The Complainant was not paid a proper Sunday Premium for these Sundays that should have been applied to all of the hours that he worked.

Within the 6-month cognisable period of the complaints  the Complainant worked a total of 21 Sundays. Within the cognisable period on granting an extension of an additional 6 months, the Complainant worked for an additional 26 Sundays without receiving a proper Sunday Premium.

Pursuant to section 14(1) of the of the OWTA an employee who is required to work on a Sunday is entitled to be compensated, in the following ways: 

(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.

 Section 27(3) of the OWTA provides that compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years’ remuneration, may be awarded. The Complainant is seeking payment of an award of Sunday premium and additional compensation to reflect the gravity of the breaches and that so that it acts as a disincentive against future infractions by the Respondent.

Rest breaks

The Complainant did not receive proper rest breaks during the duration of his employment.  The Respondent(s) did not appear to have kept a daily recording system in place of rest breaks taken.

 Section 12 of the OWTA provides:

(1)      An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

 (2)     An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

  (3)    The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4)      A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

Section 27(3) of the OWTA provides that compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years’ remuneration, may be awarded. The Complainant is seeking redress of what is just and equitable, that it reflects the gravity of the breaches and that it acts as a disincentive against future infractions by the Respondent.

Weekly rest periods 

The Complainant did not receive proper weekly rest breaks during the duration of his employment. The Complainant consistently worked seven days per week without a weekly rest period.

 Section 13(2) of the OWTA provides

 Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours

 Section 27(3) of the OWTA provides that compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years’ remuneration, may be awarded.  The Complainant is seeking redress of what is just and equitable, that it reflects the gravity of the breaches and that it acts as a disincentive against future infractions by the employer.

Excessive working hours

The Complainant worked well in excess of the legal maximum of 48 hours per week as specified by legislation.  His records indicate working 63-73 hours per week on average during the period of his employment. 

 According to Section 15(1) of the OWTA 

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.

Section 27(3) of the OWTA provides that an adjudication officer may  “require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

 The Complainant is seeking redress of what is just and equitable, that it reflects the gravity of the breaches and that it acts as a disincentive against future infractions by the Respondent.

Annual leave entitlement

The Complainant did not receive any annual leave entitlement. He did not take any of his annual leave at any point during his employment and received no payment for his annual leave.

 Pursuant to Section 19(1) of the OWTA, an employee is entitled to the following paid annual leave:

(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.”

The Complainant worked a total of 105 weeks between 01/08/2022 and 07/08/2024.  The Complainant worked between 63-73 hours per week. The total number of hours he worked during his employment are calculated to be 7,233.48.   

Annual leave is calculated at 8 percent  and the Complainant’s hourly rate as per his employment permit is €14.79. Thus, the annual leave pay due is calculated as follows:

7,233.48 gross hours x 0.08 annual leave due x €14.79 hourly rate= €8,558.65

The Complainant notes Section 27(3) of the OWTA provides that compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years’ remuneration, may be awarded.  The Complainant is seeking payment of his annual leave pay still due to him as well as consideration of compensation to reflect the breaches and so that it acts as a disincentive against future infractions by the Respondents.

Public Holiday Entitlement 

The Complainant did not receive a payment for Public Holidays he worked. Full-time employees have immediate entitlement to benefit for public holidays. Pursuant to Section 21(1) of the OWTA an employee is entitled to:

(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.

Within the 6-month cognisable period of the complaints - the Complainant worked a total of 5 Public holidays.    Total due: 5 Public holidays x 10 hours per day x €14.79/hour = €739.50

Within the cognisable period on granting an extension of an additional 6 months, the Complainant worked for an additional 5 Public holidays. Total due: 5 Public holidays x 10 hours per day x €14.79/hour = €739.

The Complainant is seeking payment of his public holiday pay still due as well as consideration of compensation to reflect the breaches and so that it acts as a disincentive against future infractions by the Respondents.

Employment Equality Act, 1998

The Complainant’s submits the Respondent discriminated against him on the grounds of his race contrary to Sections 6(2)(h) the Employment Equality Act, 1998. 

Section 6(1) of the Act defines discrimination as:

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i)       exists,

(ii)      existed but no longer exists

(iii)     may exist in the future, or

(iv)     is imputed to the person concerned

Section 6(2)(h) of the Act provides that it shall be unlawful discrimination to treat a person less favourably than another person has been or would be treated because “they are of a different race, colour, nationality or ethnic or national origins”.

Section 8 of the Act prohibits discrimination against an employee or prospective employee in relation to:

“(a) access to employment;

  (b) conditions of employment”

The Complainant came to Ireland to work for the Respondent(s) with very little English and had no connections in Ireland outside of Ming Gao.  His employment permit and visa were intrinsically linked to his employment with the Respondent(s).  He was not provided with a copy of his contract of employment and he was unfamiliar with his statutory entitlements under Irish law. As a result of these factors, he was very vulnerable. He was dependent on the Respondent(s) for both income and accommodation and the Respondent sought to exploit that vulnerability.  The Complainant was made to work excessive hours with little to no breaks or rest periods, and he was paid less than half the compensation he was due.  He was being made to pay an extortionate and illegal recruitment fee of €30,000 for his job.  His statutory and contractual rights were utterly ignored.

This treatment by the Respondent as well as the efforts of Ming Gao extracting money from him in the form of a €30,000 “recruitment fee” was undeniably linked to the fact that the Complainant is Chinese, with no English.  It is further evidenced by the Respondent telling the Complainant he needed to work long hours without days off to pay off this debt.  It is also evidenced by the Respondent confiscating his passport and not returning it when requested.  

The Respondent operates a family run business, with one employee other than the Complainant who is also from China but who is not reliant on an employment permit to remain lawfully in the State i.e. has a long-term residency (Stamp 4) permission. The Complainant endured significantly harsher treatment than his comparator because of his immigration status which is linked to his nationality. The Complainant was expected to work significantly more hours, for less pay with a view to paying off his so called “debt”. The Complainant, as a Chinese national was dependent on the Respondent for his employment permit. As a result, the Respondent targeted the Complainant, extracted money from him and abused their position of power. 

The fact that Ming Gao and the other employee is originally from China does not preclude the Respondent from discriminating against the Complainant on the grounds of his race. 

The Complainant further submits that the objective disregard by the Respondent of its duties as an employer is a clear indication of discrimination as no Irish person would be subjected to similar treatment. As much was held in the case of A Receptionist v A Hostel ADJ-00023445 where the WRC found, given the respondent’s “laissez-faire” attitude to their legal obligations as an employer, it was reasonable to conclude an Irish person would not have been treated in a similarly poor manner.

Section 85A(1) of the Act provides the following in respect of the burden of proof in claims of discrimination, harassment, sexual harassment and victimisation:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The Complainant submits he was subjected to discrimination on the ground of his race in respect of his conditions of employment. The Complainant has provided evidence of this discrimination thereby discharging the evidentiary burden placed on him such that the burden of proof hereby shifts to the Respondent.

The Complainant seeks maximum compensation permitted under statute in order that it is effective and dissuasive.

European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 

The Respondent (Transferee i.e. new/current employer) did not advise the Complainant in relation to the transfer of undertakings in contravention of Section 8(5) and 8(6) of the Regulations.

Legislation provides that a rights commissioner in the case of a contravention of Regulation 8 shall require the employer to pay the employee compensation that is just and equitable but not exceeding 4 weeks remuneration. The Complainant requests compensation to the maximum allowable.     Four weeks remuneration = 4 weeks x 71.65 hours per week average x €14.79 contractual rate per hour = €4,238.80

The Respondent (Transferee i.e. new/current employer) did not consult the Complainant in relation to the transfer in contravention of Section 8(4) of the Regulations.

The Regulations provide that a rights commissioner in the case of a contravention of Regulation 8 shall require the employer to pay the employee compensation that is just and equitable but not exceeding 4 weeks remuneration. The Complainant requests compensation to the maximum allowable.     Four weeks remuneration= €4,238.80

According to Section 10(6) of the Regulations:

A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.

The Complainant believes that there are exceptional circumstances that prevented the presentation of his complaint within this initial 6-month period and is requesting consideration of an extension of the cognisable period as is allowed by the Regulations.  The exceptional circumstances are outlined below.  

Payment of Wages Act

The Complainant seeks adjudication pursuant to Section 6 of the Payment of Wages Act 1991 on the basis that the Respondent did not pay him the amount properly payable in breach of Section 5 of the Act.

 Section 5 of the Payment of Wages Act, 1991 as amended states:

5. “(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a)      the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b)      the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c)       in the case of a deduction, the employee has given his prior consent in writing to it.

And

5(6) Where—

(a)      the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b)      none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

The Respondent did not pay the Complainant the contractual wages properly payable to him for each of the weeks of his employment.  No payslips were ever provided to the Complainant. The underpayment of his wages varied on a weekly basis based on the varying amounts paid by the Respondent to the Complainant and on the varying payments made directly back to the Respondent by the Complainant to pay off his “recruitment fees”.  Details of the weekly payment records are provided.

The Respondent received payments from the Complainant that were in contravention of Section 5(1) of the Act.  Recruitment fees received by an employer are not authorised by virtue of any statute.  On the contrary, it is an offense under Section 55 of the Employment Permit Act, 2024 for an employer to receive payments related to an employment permit and “recruitment” so such payments could never have been contractually agreed, consented or received.   

Notwithstanding the aforementioned, the payments received by the Respondent were in clear violation of Sections 5(3) and 5(2) of the Act.

Section 5 (3) (a):  An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

Section 5(2) thus sets out the following:

5(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a)         any act or omission of the employee, or

(b)         any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, unless—

(i)       the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii)      the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii)     before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I)       in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II)      in any other case, notice in writing of the existence and effect of the term, and

(iv)     in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v)      in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi)     in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii)    the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

In consideration of the Complainant’s situation the payments received by the employer were not “fair and reasonable having regard to all circumstances (including the amount of the wages of the employee)” and thus not in compliance with 5(2)(i).   Neither were the payments “of an amount not exceeding the cost to the employer of the goods or services” as indicated in 5(2)(vi) and therefore not in compliance with the Act.  

The Complainant is seeking payment of his wages properly payable.  The following summarises the total underpayment of wages properly payable to the Complainant during the cognisable period of the first complaint and for the second complaint should a 6-month extension to the cognisable period be allowed.  

 (i) 6-month period from date of complaint

Employment dates covered:  09/03/2024 – 07/08/2024 (21.1 weeks) 

Total Underpayment = €20,633.76

(ii) 6-month extension period

Employment dates covered:  09/09/2023 – 08/03/2024 (26 weeks) 

Total Underpayment = €22,948.72

The Complainant also requests that due to the serious nature of the breaches by the Respondent and considering that the payments back to the Respondent often exceeded the weekly wages of the Complainant, the adjudicator consider compensation as outlined in Section 6 of the Act.  Section 6(1) of the Act provides as follows:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

(a) the net amount of the wages (after the making of any lawful deduction therefrom) that —

(i)           in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount”.

 Request for extension of the cognisable time period  

The Complainant does herein apply under the Workplace Relations Act 2015 for an extension of the cognisable time period of his complaints under the relevant Acts above.     

As has been explained above the Complainant was especially vulnerable.  As the holder of an employment permit, he was not permitted to change and work with another employer. He was completely dependent on the Respondent for his accommodation, immigration status and livelihood in Ireland. He had little to no English and no connections in Ireland.  The Complainant points to the demands from the Respondent for him to work long hours for little pay in order to pay the large debt of his recruitment fees. The Respondent also confiscated his passport.  The Complainant was not in a realistic or able position to come forward to lodge his complaints sooner.  Only when the Complainant obtained external assistance to be able to leave his employment, accommodation and secure his immigration status was it possible for him to come forward and lodge his complaints which he did within one month of leaving his ordeal.

The Complainant submits that he has reasonable cause for extending the cognisable time period to the maximum allowable in that the above reasons explain the delay in submitting his claims.

The Complainant also relies on Cementation Skanska (formerly Kvaerner Cementation Limited) v Carroll  wherein the Court held that

“The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the complainant at the material time. The complainant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. 

Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the complainant has a good arguable case”.

The legal representatives at the hearing stated that they are representing Mr Ming Gao and not Eskimo Gao Ming Limited, Lam’S Asian Cuisine And Eskimo Pizza.  Mr Ming Gao, a director of the latter company could not attend the hearing due to illness.  The secretary of the company, Ms Xiuquin Wu (Mr Gao’s wife also known as Ms Ami Gao), attended and gave evidence.  The representative stated that any claim against Mr Ming Gao was outside of the time limitations contained in the various statutes and that any claim should be against Eskimo Gao Ming Ltd and that  no reasonable cause for extension was given.

There was a relationship in China between the complainant’s and respondent’s families in which money was borrowed by the complainant.  He sought employment in Ireland with the respondent and was provided with work and accommodation.  He worked 39 hours per week and was paid in accordance with his contract.  His employment transferred to the second named respondent on 7th October 2023.

Evidence of Ms Xiuquin Wu, Company Secretary

The complainant was given a contract of employment which he signed.  He worked for 39 hours per week as evidenced by his time sheet.  He was notified of his hours each week in advance.  The company required the time sheets to be signed but the complainant never did.  He was given smoke breaks regularly when there were no customers.

The complainant received his holidays and was off one or two days each week.  He got paid by bank transfer weekly.  He was treated very well by the witness and borrowed money every time he was in trouble.  The complainant owed a lot of money to someone else and the respondent asked their family in China to help the complainant’s family there.

The complainant asked Ming Gao to keep his passport.  He left it behind in his accommodation.  When he threatened the respondent about the passport the respondent brought it to the Gardai who said it could only be collected in two weeks’ time and therefore the witness brought it home.

The complainant was informed verbally of the proposed transfer of undertakings in October 2023 and was given and signed a new contract in February 2024

Evidence is provided of payment for holiday pay for the year ended 04.08.2024 paid to the complainant in the sum of €2,175.79 which was paid by the applicant in cash as he wished to go on holidays.

The complainant’s employer was Eskimo Gao Ming Limited after that company was established on the 09/10/2023.  These findings therefore are in relation to the complaints against that company. 

The complaint was received on 9th September 2024. The complainant has requested an extension of the cognisable time period in respect of a number of the complaints.

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM.  Here Costello J. stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.  Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented by the Complainant in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay.  Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.

The complainant has argued, in support of the application to extend the cognisable period, that the Complainant was especially vulnerable.  As the holder of an employment permit, he was not permitted to change and work with another employer. He was completely dependent on the Respondent for his accommodation, immigration status and livelihood in Ireland. He had little to no English and no connections in Ireland.  The Complainant points to the demands from the Respondent for him to work long hours for little pay in order to pay the large debt of his recruitment fees. The Respondent also confiscated his passport.  The Complainant was not in a realistic or able position to come forward to lodge his complaints sooner.  Only when the Complainant obtained external assistance to be able to leave his employment, accommodation and secure his immigration status was it possible for him to come forward and lodge his complaints which he did within one month of leaving his ordeal.

I find the accumulation of these facts persuasive and in particular I find the taking of his passport in November 2023 left the complainant in such a vulnerable position that this meets the requirement for an extension insofar as it is a reason which both explains the delay and affords a justifiable excuse for the delay.” I therefore agree to extend the cognisable period in each instance.

CA-00065872-001,CA-00065872-013  Sunday premium

In the absence of appropriate records from the respondent I accept the evidence of the complainant that he did not receive any premium for Sunday work and this complaint is upheld.  I note that with the additional 6 months cognisable period this involves 26 Sundays. Allowing an additional 30% for Sunday work I calculate the complainant is entitled to €1,155 in respect of Sundays worked.

CA-00065872-002, CA-00065872-008  Payment of Wages

The complainant alleges that the respondent did not pay the complainant the contractual wages properly payable to him for each of the weeks of his employment.  In particular, this complaint relates to deductions made in respect of a recruitment fee.  The respondent denies that this is the case and states that any deductions were in respect of loans.  No plausible evidence was provided of these purported loans.  Central to the case is the promissory note signed by the complainant.  An extract of the agreed translation is outlined below;

I XiaoFeng Gao arrived in Ireland for employment on 9 July 2022.  The total expenses amounted to RMB 240,000 which have been fully paid by Aimei Xue. I hereby commit to repaying the entire debt within three years.  In case of breach of contract I shall bear all liabilities.

It is clear from this note that the money allegedly owed by the complainant to the respondent related to the recruitment process and supports the complainant’s version that this related to paying for an employment permit as it would seem that €30,000 could not reasonably be interpreted as expenses incurred in a single man moving from China to Ireland. The respondent, in evidence, asserted that the deductions were in respect of loans.  However, repayment of any loans unrelated to the complainant’s employment that may have existed could not be unilaterally deducted from the complainant’s pay. This complaint is therefore upheld.

I note that with the additional 6 months cognisable period the underpayment amounts to €43,582.48.

 CA-00065872-003, CA-00065872-004  Rest breaks

The respondent maintained insufficient records to disprove the complainant’s evidence regarding breaks. The respondent, in evidence, stated that the complainant took regular smoke breaks whenever there were no customers.    This casual attitude to breaks does not meet the requirements of Section12 or Section 13(2) of the Organisation of Working Time Act and therefore I find that these complaints are well founded.  Based on the evidence given I find that these were very serious breaches of the complainant’s entitlements and therefore I find that the appropriate compensation should be €2,000 in respect of the complaint in relation to daily breaks and €8,000 in respect of the complaint in relation to weekly breaks.

CA-00065872-005  Excessive working hours

I am satisfied based on the evidence given at the hearing that the complainant worked between 68 and 73 hours every week which is in breach of Section 15(1) of the Organisation of Working Time Act.  Therefore the complaint is well-founded.  I find this was a very serious breach of the protections afforded to the complainant under the Act and therefore I find that the appropriate compensation should be €8,000.

CA-00065872-006  Annual Leave

The CJEU, ruling in the case of LB v TO (C-120/21), reaffirmed that the loss of the right to paid annual leave at the end of a given leave year or carry-over period can occur only provided that the worker concerned “has actually had the opportunity to exercise that right in good time.” In this regard, an employer must provide encouragement and information to employees about taking paid annual leave.  This did not happen and I am satisfied that the complainant did not have the opportunity to take annual leave during the entirety of his employment.  Under Section 19(1) (c) of the Organisation of Working Time Act the employee is entitled to 8 per cent of the hours he or she works in a leave year. Based on the evidence given at the hearing the complainant worked 7,233 hours and therefore attracting a payment of €8,558.65 in respect of annual leave.  The respondent made a payment of €2,175 which I deduct from the outstanding amount. The complaint is well founded and I order redress of €6,383.

CA-00065872-007,  CA-00065872-009  Public Holidays

For the reasons outlined earlier I have decided to extend the cognisable period to 12 months.  I am satisfied that the complainant was not afforded his rights under Section 21(1) of the Organisation of Working Time Act and therefore the complaint is well-founded.  The complainant is owed the sum of €1,478 in respect of this breach.

CA-00065872-010 Employment Equality Act, 1998

The Complainant’s submits the Respondent discriminated against him on the grounds of his race, contrary to the Employment Equality Act.

In DEC-E2011-117 A Domestic Worker v an Employer the evidence adduced was of the employee being treated in complete disregard for Irish employment law by being paid less than the minimum wage, working far in excess of a 48-hour working week, not being paid public holiday entitlements, not being provided with appropriate breaks.  The Equality Officer concluded that an Irish employee would not have been similarly treated and would not have been placed in the vulnerable position the employee found herself in, in a foreign country without appropriate visa documentation, no support network and dependent on her employer for accommodation and employment. On that basis, the Equality Officer held that the complainant had been subjected to unlawful discrimination on grounds of race in relation to her conditions of employment and awarded compensation.  The case before me is similar and includes the additional issues of a payment for recruitment and withholding the complainant’s passport.   I also conclude that an Irish person would not have been treated in the manner in which the complainant has been and therefore he was discriminated against.

In determining the appropriate compensation, I am conscious that I have already made an award under the Payment of Wages Act for the additional hours over and above his contracted hours.  I am therefore determining that his annual wage for the purpose of compensation should be based on his contracted hours which approximates to €30,000 per annum.  The discrimination in this case is very serious and therefore I am making an award of€60,000 equivalent to two year’s pay, the maximum permitted under the Act.

CA-00065872-011, CA-00065872-012 Transfer of Undertakings

Section 8 of the European Communities (Protection of Employees on Transfer of Undertakings)Regulations, 2003 states;

(6)      Where, notwithstanding paragraph (5), there are still no representatives of the employees in an undertaking or business concerned (through no fault of the employees), each of the employees concerned must be informed in writing, where reasonably practicable, not later than 30 days before the transfer and, in any event, in good time before the transfer, of the following:

(a)     the date or proposed date of the transfer;

(b)     the reasons for the transfer;

(c)     the legal implications of the transfer for the employee and a summary of any relevant economic and social implications for that employee;

and

(d)     any measures envisaged in relation to the employees.

The obligation applies to both the Transferor and the Transferee. The respondent is the transferee in this instance and did not provide the above information to the complainant in writing as required and therefore the complaint is well-founded.  I determine that the appropriate compensation of four weeks’ pay based on the complainant’s contracted hours.  This equates to €2,307.

CA-00066687-001  National Minimum Wage

 Section 24 of the National Minimum Wage Act states

(2) A dispute cannot be referred to or dealt with by a rights commissioner—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

The respondent did not supply the required information to the complainant and therefore the complainant could submit the complaint. 

Section 26 (2) of the Act states;

(2) A decision of the rights commissioner may—

(a) include an award of—

(i) arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with this Act in respect of the period to which the dispute relates,

Based on the evidence presented at the hearing I am satisfied that, when considering the hours actually worked by the complainant, the respondent was in breach of the National Minimum Pay Act.  I note the complainant has calculated the sum due (based on the entirety of the complainant’s employment, at €65,505.  However, while I have determined that I should address the complaint for the period to which the dispute relates – the entirety of the complainant’s employment -I have already considered some of the underpayments to the complainant in the award under the Payment of Wages Act above in the sum of €43,582.48.  I therefore, believe it appropriate to deduct that sum from the award for the breach of the National Minimum Wage Act.  The complaint is upheld and the award therefore is €21,922.52.

CA-00065872-001,CA-00065872-013  The complaints are upheld and I order the respondent to pay the complainant the sum of €1,155 in respect of wages due for Sunday work

CA-00065872-002, CA-00065872-008  The complaints are upheld and I order the respondent to pay the complainant the sum of €43,582.48 in respect of payment of wages

CA-00065872-003 The complaint is well-founded and I order the respondent to pay the complainant the sum of €2,000 in compensation.

CA-00065872-004  The complaint is well-founded and I order the respondent to pay the complainant the sum of €8,000 in compensation.

CA-00065872-005  The complaint is well-founded and I order the respondent to pay the complainant the sum of €8,000 in compensation.

CA-00065872-006  The complaint is well-founded and I order the respondent to pay the complainant the sum of €6,383 in respect of annual leave.

CA-00065872-007,  CA-00065872-009  The complaints are well-founded and I order the respondent to pay the complainant the sum of €1,478 in respect of public holidays

CA-00065872-010 The complainant has been discriminated against and I order the respondent to pay him €60,000 in compensation

CA-00065872-011, CA-00065872-012  The complaint is well-founded and I order the respondent to pay the complainant the sum of €2,307  in compensation.

CA-00066687-001  The complaint is well-founded and I order the respondent to pay the complainant the sum of €21,922.52 in respect of wages owed.

Withholding or wages, breaches of legislation in relation to the Organisation of Working Time Act, discrimination, TUPE.