Complainant

Respondent

Parties

Syed Bilal Perwaiz

The Bullman Bar and Restaurant

Representatives

Self-represented

Denis Collins BL instructed by Macaire Adams, Solicitor of Adams Donnelly Solicitors LLP

Act

Complaint

Reference No.

Date of Receipt

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

CA-00072454-001

14/06/2025

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

CA-00072454-002

14/06/2025

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

CA-00072454-003

14/06/2025

The Complainant worked for the Respondent for approximately ten (10) weeks, as a chef, at €750 gross per week, prior to being dismissed.

He submits that he did not receive a five (5) day statement or a contract. He further submits that when he was dismissed, he did not receive payment in respect of outstanding annual leave. He submits that he did not receive any Sunday premium in respect of this employment.

The Respondent concedes that the Complainant did not receive a contract but submits that he did receive his terms of employment set out in messages between the parties, that the Complainant was always on notice of the position, that the prejudice is minimal, that the period of employment was approximately ten (10) weeks in length.

The Respondent submits that as the Complainant had less than thirteen (13) weeks’ service, he has no statutory entitlement to notice pay.

The Respondent submits that the Complainant received €1,500 at the end of his employment, which exceeds his statutory entitlements. It submits that his entitlements at the end of his employment comprised monies in respect of days worked (two full days and a partial day that week, which constituted a partial week in respect of the time for which he had been rostered that week), monies in respect of outstanding annual leave and monies in respect of time-off-in-lieu (TOIL) related to Sunday work, which was added to outstanding annual leave and paid to him at the end of his employment as he did not have an opportunity to it due to his dismissal; and that figure was lower that €1,500. The balance was ex gratia. Separately, the Complainant was told he would receive his share of the tips from the relevant time period when they were being divvied up.

In relation to CA-00072454-001, the Complainant gave evidence on his own behalf. He said that before commencing employment, he had a conversation over the phone and he requested a contract. He said he was told the contract would be provided once he started employment. He said did not receive a contract.

In relation to CA-00072454-002, the Complainant outlined that he was seeking additional pay in respect of eight (8) or nine (9) Sundays he had worked for which he outlined that he had not received either Sunday premium or time off in lieu. The Adjudication Officer enquired of him as to the figure he had submitted, and how he had arrived at it. He gave evidence that he calculated it based on what he had received as a Sunday premium in a previous job with a different employer. He acknowledged that he had no basis for thinking that would be the rate applicable in this job.

In relation to CA-00072454-003, the Complainant outlined that he calculated he was owed four (4) days outstanding annual leave, in respect of leave accrued but not taken, which he said he did not receive.

The Complainant said that it was his understanding that ‘from the termination date, you would be paid a week’s notice.’ He said that he thought he had received one week’s pay which pertained to work and the equivalent of one week’s pay which pertained to notice pay.

On Cross-examination by Mr. Denis Collins BL

It was put to the Complainant that he was being paid on a weekly basis – €750 per week - not on an hourly basis. The witness disagreed with that. How that figure came about was explored with the Complainant – it was put to him that he had initially been offered €700 and countered with a figure of €750, which the Respondent acceded to, and that he was therefore aware of this term of his employment.

It was put to him that several weeks, he worked fewer than his full hours but was still in receipt of full pay. A summary document was submitted. Examples were put to the Complainant, e.g. first week, it was put to him that he worked 34 hours minus breaks.

It was put to him that the Respondent accepted that it had not provided him with a contract but had provided him with what the core terms of employment were. The Complainant disputed this.

It was put to him that he knew what he was being paid €750 per week in addition to tips, that he knew how many hours per week he had to work (40), that he knew the remuneration interval, that he knew the work schedule is varied but that he had to work forty (40) hours per week, that he knew his date of commencement. It was put to him that while he was not provided with a written contract, he was fully informed as to his core conditions of employment. The Complainant disputed this.

The Respondent put Appendix 4 in their booklet to him  – 21/4/2025 – Core Terms of Employment. The Complainant said that the statutory requirement was a written document.

His expectation in relation to notice period was explored with him. It was put to him that he had worked for the Respondent employer for nine or ten weeks, that he had less than thirteen weeks’ service, and that he was therefore not entitled to notice or notice pay. He said that the Respondent told him he would be paid a week’s notice. It was put to the witness that the Respondent disputed that, that it did not accept that.

It was put to him that the last payslip (Appendix 6) indicated a gross payment of €1,500, and a net payment of €1,411.97 , which was received by the Complainant on June 10th, 2025.

It was put to him that when his employment was terminated, he had worked a partial week - two (2) full days and one (1) half day. It was put to him that he was aware of the roster in advance of the last week he worked; and that he was rostered on for more hours that week than he ended up working due to the termination of his employment.

In relation to Sunday premium, it was put to him that he would have been aware that the company did not pay Sunday premium. He disputed this, saying that since there is no contract, he could not say.

It was put to him that the €1,500 he received on the last week, exceeded the amount he worked in his last week.

The Complainant reiterated that he was told he would be paid notice pay. It was put to him that he was paid as well for Sunday that week, and he did not work on Sunday, 8th June. [He was let go on Saturday 7th.]

It was put to him that he wrote to Mr. Crosbie on June 12th requesting his terms of employment; and then that he wrote to Mr. Crosbie again on June 14th saying that there was no need to send them now. [Already on the way to the WRC.]

It was put to him, that that was the only occasion that he had asked for his contract, contrary to his assertion that he had asked for his contract on multiple occasions.

Closing submission by the Complainant

He submitted that there had been multiple statutory breaches – that he received no contract (within 2 months of employment), no five (5) day terms, that he was not paid for Sunday premium and that he was not paid for annual leave. He respectfully submitted that the Commission should grant redress reflecting the breaches.

It was submitted that while no written contract was provided initially, the terms of the Complainant’s were known to him, and that there was minimal prejudice to him. It was submitted that the messages between the parties provided what exactly the terms of employment were, and that the rate of pay was actually negotiated between the parties following a trial shift – the Complainant was initially offer €700 per week, and negotiated up for €750 per week which was agreed. It was submitted that the Complainant was at all times aware of the position, but it was accepted that he did not receive the formal written contract that you would receive. It was submitted that when the request was received, the employer was willing to provide the Complainant with a copy, but further correspondence was then received that the Complainant no longer provided it. His employment had been terminated.

The short nature of the employment was emphasised – it was nine (9) or ten (10) weeks in duration. In relation to premium pay on Sundays, it was submitted that the Complainant was advised that premium pay was not paid for Sundays, but that time off in lieu was provided, that additional premium was given at the end of the of employment.

Mr. Donal Crosbie, head chef and owner of the Respondent business gave evidence on its behalf.

He outlined that he had started speaking to the Complainant in March through Indeed. The Complainant started employment on April 2nd. He said that they entered into a contract orally, which started on April 2nd . He accepted that the Complainant was not provided with a written contract.

He outlined that he had a meeting with the Complainant post his trial [shift] and they spoke about the terms of employment, which included that the job was full time, forty (40) hours per week. He said the salary was negotiated. He offered €700 and the Complainant countered with €750 to which he agreed. He explained that it was a very seasonal premises, and that in the downtime, the Complainant was not required to work forty (40) hours, but was paid nevertheless for the full forty (40) hours. Then in busier times, there may be additional work/hours.

The issue of notice period was explored with the witness. It was put to him (that due to the length of the Complainant’s service) he was not entitled to the notice period/pay. He said that on June 7th , that post service about 10 pm, he explained that to the Complainant.

In relation to Sunday premium, he said that the basis was a contract forty (40) hours per week for €750 gross, and that the Complainant was paid his full contract at 40 hours. The rosters were issued for the following week, in advance.

He explained that the kitchen is not open Monday or Tuesday or on Sunday evening. Some weeks, staff would have a day off and some weeks they would have another half day off on top, dependent on the rostering that week. He said that the Complainant was paid for that shift and informed of the position.

The witness went through the document entitled ‘Summary Page’ and explained it.

He was asked if the Complainant ever sought the written contract from him. He said: ‘No.’ He explained that the first time it was requested was on June 12th 2025, when the Complainant sent an email asking about the contract. The witness said that he never asked for the core terms, nor the contract.

The witness outlined that he had engaged the services of an external HR firm, and had requested of them that they supply the Complainant with his terms of employment (contract), a reference (statement of employment) and his termination letter. In the interim, the Complainant reverted to say that he no longer required the contract, and that the matter was already on its way to the WRC.

Closing submission by Mr. Denis Collins BL

He submitted that there was no written contract that would be ordinarily expected, and that the Respondent regrets not furnishing that. By way of mitigating the position, he submitted that there had been a discussion about remuneration, how often the Complainant would be paid (payment interval), that the schedule could be variable, that he was guaranteed being paid for forty (40) hours whether there was forty (40) hours work available per week, date of commencement. He said that it was accepted that a contract was not provided to the Complainant but it was submitted that there was very minimal prejudice to the Complainant in that regard.

In relation to the complaints under the Organisation of Working Time Act 1997:-

Re: Sunday premium, it was submitted that the Respondent did not pay Sunday premium but paid time off in lieu (TOIL) to all staff as a way of dealing with Sunday premium in the workplace.

In relation to outstanding annual leave, it was submitted that the Complainant was paid €1,500 at the termination of his employment; and that that figure encompasses his wages in respect of the two (2) full days and a partial day that he worked on the last incomplete week he worked prior to dismissal, and also encompassed a figure greater than the outstanding annual leave and the Sunday premium (TOIL added as annual leave at the end of employment) over that ten (10) week period. It was submitted that the Respondent paid in excess of what it was required to do, on termination of the employment. It was therefore submitted that the Complainant was not entitled to any redress in respect of his complaints under the Organisation of Working Time Act 1997.

CA-00072454-001 – It is admitted that the Respondent did not provide the Complainant with a copy of his contract during his employment.

CA-00072454-002 –  The Complainant’s complaint pertaining to Sunday premium.

Section 14 of the Organisation of Working Time Act, 1997 as amended stipulates:-

14. Sunday work: supplemental provisions

(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.

In relation to the question of Sunday premium, I am guided by the approach of the Labour Court case of Park House Hotel Ltd. v Wlodarczyk DWT1624. The Court in that case set out that: ‘Neither party was in a position to put in evidence to the Court a signed and clear copy of the Appellant’s contract of employment.

Section 14(1) of the Act provides, in effect, that an employee who is required to work on a Sunday is entitled to an additional benefit in respect of that requirement where “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”. What is intended by this provision is that a worker who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive it they were not so obligated. As is clear from the opening words of s.14(1), in brackets, that compensation can take the form of an enhanced rate of pay over and above that which he or she would have received if the obligation to work on Sunday was not present. Not only must an additional benefit be provided but that benefit must be reasonable in all the circumstances. That entitlement is one of substance which a Rights Commissioner, and this Court on appeal, is obliged to vindicate.

This Court has held (Viking Security Ltd – and – Tomas Valent – DWT 1489) as follows:-

• In the Court’s view it is insufficient for the employer to simply say (as the Respondent does in this case) that because the rate exceeds the national minimum wage it compensates for Sunday working. If such a contention were to be accepted the effectiveness of the statutory provision would be seriously undermined in the case of all workers whose pay exceeds the statutory minimum.

In practice the Court can only be satisfied that an employee has obtained his or her entitlement under s.14(1) of the Act where the element of compensation for the obligation to work on Sundays is clearly discernible from the contract of employment or from the circumstances surrounding its conclusion. Where an hourly rate is intended to reflect a requirement for Sunday working that should be identified and clearly and unequivocally specified at the time the contract of employment is concluded either in the contract itself or in the course of negotiations.’

It further stated that: ‘The Court finds that a mere assertion that the Appellant’s obligation to work on Sundays was taken into account in determining her rate of pay cannot be taken, on its own, as evidence of compliance with Section 14(1) of the Act.’

It found that ‘in the absence of clear evidence as to how such an assertion was given effect in the pay arrangements applied to the Appellant it has jurisdiction under the Act to hear this matter’, and that ‘the methodology of calculating pay operated by the Respondent is such that the Respondent’s compliance with the Act is not clearly discernible.’

I accept the Respondent’s evidence in relation to the length of shifts on Sundays; and the kitchen being closed on Sunday evenings; and that the Complainant was rostered for some Sundays and not for others.

Bearing that in mind, and in light of the lack of clarity with respect to compliance with the employee’s rights under s. 14 (1) of the Organisation of Working Time Act 1997, given the absence of a signed contract, I adjudge the appropriate amount of compensation in the circumstances to be €450.

CA-00072454-003 – The Complainant’s complaint pertaining to Annual Leave: The Complainant received €1,500 upon his dismissal, which is the equivalent of two weeks’ wages. That figure comprised the monies earned pertaining to the two full days along with a partial day he had worked; and an additional sum. The Complainant has no statutory entitlement to notice pay as his employment was less than thirteen (13) weeks in duration. Having carefully examined the evidence and submissions, I am satisfied that the remainder of the figure - €1,500 minus wages pertaining to the days/hours worked - exceeds his statutory entitlement with respect to accrued untaken outstanding annual leave as per the Organisation of Working Time Act 1997 as amended, at the date of termination of his employment; and that he has no outstanding entitlement with respect to annual leave. That is also more consistent with the text message communication of 12th June 2025, from the Respondent to the Complainant telling him he had been given a week’s holidays in lieu of notice, upon the termination of his employment.

CA-00072454-001  - I find that this complaint is well founded. I direct the Respondent to pay the Complainant €750 in compensation, which is the equivalent of one week’s wages, within 42 days of the date of this decision.

CA-00072454-002 - Sunday premium: For the reasons outlined above, I find that this complaint is well founded. I direct the Respondent to pay the Complainant €450 in compensation within 42 days of the date of this decision.

CA-00072454-003 - Annual Leave: For the reasons outlined above, I find that this complaint is not well founded. I find for the Respondent.

Terms of Employment; Notice Pay; Sunday premium;