Complainant

Respondent

Parties

Niall  Starmer

Hayes Vintners Limited T/A The Rising Sun

Representatives

Shaun Boylan B.L. instructed by   Ormonde Solicitors

 Richard Hayes

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-00068023-002

11/12/2024

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

CA-00068023-003

11/12/2024

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

CA-00068023-004

11/12/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the complainant undertook to give their evidence under affirmation.  However, in the hearing only the complainant gave evidence and was cross examined. Two witnesses for the respondent undertook to give their evidence under affirmation.  The witness for the respondent was also providing an overview from the respondent’s perspective and did not provide further evidence other than the overview.  He was cross examined.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The complainant submitted that his case arises from a pattern of excessive working hours, persistent understaffing, discrimination, and a toxic workplace culture. He was required to work far beyond his contracted hours, sometimes in excess of 60 hours per week, without appropriate compensation or rest breaks.

When the complainant raised concerns about these conditions, the employer’s response was dismissive and hostile, culminating in a deterioration of the working environment and his mental health. The complainant submitted that ultimately, he felt compelled to resign due to the employer’s conduct, which included penalisation for raising statutory rights, failure to pay outstanding wages, and discriminatory treatment linked to his family status and a mental health issue. The complainant sought compensation for penalisation, discrimination, and unpaid wages.

The complainant submitted that the cognisable period for complaints stretches from 11 June 2024 to 11 December 2024.

CA-00068023-002 Penalisation under the Organisation of Working Time Act

The complainant raised issues regarding the excessive working hours and the effect that it had on his family situation to his employer continuously.  Nothing changed except that the respondent appointed a General Manager.  It was made very clear that the later employment of an Executive Chef was demeaning to the complainant.

The complainant submitted that the facts demonstrate that he was penalised for invoking his statutory rights under the Organisation of Working Time Act 1997. He repeatedly raised concerns about excessive working hours, lack of rest breaks, and chronic understaffing; matters directly protected by the Act. The respondent’s reaction was to subject him to hostility, exclusion, and ultimately, adverse treatment culminating in his resignation.

The complainant submitted that the timing and nature of the detriment suffered, including exclusion from workplace opportunities and being blamed for operational failures, establishes a clear causal link between the protected acts and the penalisation.

CA-00068023-003 Payment of Wages

The complainant submitted that he was not paid for the hours that he worked. Upon his resignation, he was not paid outstanding wages, with approximately €2,480 due at the time of termination. This constitutes an unlawful deduction under the Payment of Wages Act 1991, as all sums properly payable to the employee upon termination must be paid.

During the hearing the complainant submitted that he was owed €5958 but only received €2480 resulting in a shortfall of €3478.

CA-00068023-004 Employment Equality

The complainant submitted that he was working ridiculously long hours and that this had an impact on his family situation.  The respondent put him under pressure to accept a buy-out of his statutory holiday allowance.

The complainant submitted that the conduct he suffered at the hands of the respondent very clearly amounted to harassment, as it was unwanted conduct relating to his mental illness, and amounted to family status discrimination which had the purpose or effect of violating his dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for him.

The complainant submitted that he has established that he was subjected to less favourable treatment on the grounds of family status and mental health (disability). The respondent’s conduct included requiring the complainant to work on important family occasions, disparaging remarks about his wife, and failing to make reasonable accommodations for his mental health issues.

The complainant submitted that he was also harassed and excluded following his return from sick leave, with the respondent demonstrating a lack of sympathy and instead making his working life more difficult. It was submitted that the evidence supports a prima facie case of discrimination, shifting the burden to the respondent to rebut the inference. 

The complainant is seeking damages on the higher end of the scale awardable.

Complainant’s Evidence:

The complainant outlined that he had worked as a Head Chef in a number of other kitchens.  He was hired in February 2024 as Head chef in the respondent’s kitchen.  He confirmed that the Pizza area was separate.  He confirmed that you need at least two chefs rostered each day to operate the kitchen properly.  He stated that there was not enough staff to roster effectively.  He was told that he would be working 45 hours per week but that occasionally he was be required to work more hours than that.  He stated that tradespeople were coming and going all the time as the place was a building site.  He noted that he was often asked to take the tradesmen down to where they were working too.

The witness confirmed that rostering and staffing was his role, but that hiring staff was the respondent’s role.  He stated that the respondent had indicated that the kitchen would close during renovations, but it never closed down.

The complainant stated that he informed the respondent that he needed time off to attend his son’s memorial in April 2024 but was asked how much it would cost to not take the leave as there was no-one to run the kitchen. 

The witness gave evidence that an additional chef was employed in May, but he stated that he was still doing long hours.  He stated that he raised this continually with the respondent.  He stated that the kitchen had to be staffed continuously irrespective of the numbers of clients and stated that it was not his role to bring in customers.  He stated that when he returned from his holidays there was a hole in the roof.  He stated that two people had to be hired to cover his holiday absence.

The complainant stated that he initiated a conversation on excess hours, indicating that he lost out on family time and got no recompense.  He stated that the €2000 given to him didn’t cover anything.  He stated that he missed significant family birthdays, his grandson’s 1st Communion and his son’s memorial.  He stated that the subsequent discussion revolved around everything: social media, seating, working hours and the fact that he couldn’t keep going as he would burn out.  He stated that after this conversation, there was no further discussion or acknowledgement of the issues he had raised.

The complainant stated that later on the respondent wanted to talk to him about his attitude saying that he had received complaints. The complainant said that that he told the respondent that this was never raised with him.  He stated that the respondent handed him €2000 in an envelope and stated that he would pay an additional €400 euros in his pay check.  He confirmed that this amount was paid to him. He stated that he was seeking his statutory entitlement, so he was probably was a thorn in the respondent’s side.  He stated that he went out sick on 9 October and a few days later submitted his resignation.  The complainant stated that the respondent had brought in someone to work above him.

The witness confirmed that he did up the rosters and timecards until there was no-one else to do it for.  He stated that the timecards were not a reliable source of the hours he worked, he worked 7 days a week from 9 to 9, but often later.

Under cross examination it was put to the complainant that 48.2 hours was used as a basis for calculating his salary.  He confirmed that he was told to try to keep his hours under 48 per week.  He confirmed that an additional chef was brought in to cover the breakfast service.

The respondent submitted that the complainant was treated fairly, receiving above-average remuneration and autonomy in his role.  The complainant was granted full control of the kitchen and its staff and the roster.  When workplace relations became strained, the respondent made efforts to support him financially and professionally.  While he was on sick leave, the complainant received sick pay and repeated reassurances that his job was secure. The respondent submitted that the restaurant was closed to preserve the complainant’s job, rather than hiring a replacement.

CA-00068023-002 Penalisation under the Organisation of Working Time Act

The respondent denied that it penalised the complainant noting that this all revolved around the roster.  On his return from Sick leave the complainant didn’t clock in or go on the roster.

CA-00068023-003 Payment of Wages

The respondent submitted that the complainant was paid fully for his holiday pay and for the hours he was rostered to work.  However, it admitted that he did extra hours as per the clock-in card system.  The respondent noted that the complainant was responsible for compiling the roster.

The respondent submitted that the complainant was paid for 19 days holidays but was only entitled to 16 days.  The respondent stated that the complainant was paid for working Bank Holidays

CA-00068023-004 Employment Equality

The respondent denied discriminating against the complainant.  He stated that when the complainant sought a lump sum of €2,000, he was paid that amount.

The witness for the respondent, the owner, did not have any additional evidence to provide other than his outline presentation but was cross examined on issues arising from his presentation.

Under cross examination the respondent confirmed that all that was needed to run the restaurant were two chefs and a ‘pizza guy’.  He stated that as they were only producing about 18 pizzas per day it was easy to draw up a roster.  He stated that when the complainant was working that there was only one chef and that the porter was only part-time.  The witness stated that he never saw the complainant working after 11 pm.  He stated that he didn’t recall a conversation regarding hours but stated that he knew that the complainant was working too many hours.

He stated that he would give the complainant time off whenever he sought it.  He stated that he did not attempt to buy out the complainant’s remaining annual leave.  He noted that the complainant raised the issue of being burned out and noted that this was having an impact on his family.  He stated that the complainant indicated that he ‘was not interested in talking about money’ but that he sought, and received, a lump sum of €2000.

The witness stated that one other chef had handed in his notice before the complainant left on sick leave.  He stated that hiring an executive chef did not amount to penalisation by demotion.  He stated that the Executive Chef role was to take over to whole project rather than just the kitchen and that he could not advertise for a Head Chef as he already had one.  Accordingly, the job offered was executive chef.

The witness did not accept that the timecards reflected the reality of the hours being worked.

CA-00068023-002 Penalisation under the Organisation of Working Time Act

Section 26 of the Organisation of Working Time Act states as follows:

(1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

The complainant suggested that he was penalised when he raised issues regarding the excessive hours he was being required to work. He suggested that he was penalised when an Executive Chef was recruited over his head. The respondent denied that this amounted to penalisation. It was noted that he sought additional money and was paid a lump sum of €2000. The complainant confirmed that he received this lump sum and a further €400 in his pay check.

From the evidence presented at the hearing I have no doubt that the working environment was pressurised, to say the least, however the recruitment of an additional staff member to manage an ongoing project does not seem to diminish the complainant’s position but rather to cater for the expansion that had been flagged from the start of his employment.  This seems to be the only argument being put forward relating to penalisation

On the basis of the foregoing, I do not consider that the facts of penalisation under the Working Time Act have been established and therefore I find that the complaint is not well founded.

CA-00068023-003 Payment of Wages

The complainant suggested that he was not paid for all the hours that he worked. There was a general consensus that the complainants €50,000 salary covered a 48-hour week. The complainant suggested that he was working a number of hours in excess of that and the respondent indicated that the clock card system could not be relied upon. The respondent tacitly agreed  that he complainant was working excessive hours when he confirmed asking him to try to restrict his hours to under 48 hours weekly.  The complainant suggested that he was working from 9:00 to 9:00 on a number of days on a regular basis but the respondent noted that it had never seen him around at 11:00 at night.  However the respondent has not records as to the actual hours worked by the complainant.

On the basis of the evidence provided by the parties I am satisfied that the complainant was required to work hours in excess of his contracted number of hours. The suggestion of the complainant is that there was at least 10 hours on average per week worked over the 48-hour period. The respondent’s position is that the complainant was working more than 48 hours, and it told him that he should restrict his time to 48 hours but it was accepted that he was working more than that. In that regard the complainant sought and received a lump sum for extra hours that he had already worked up to July 2024. I consider that this additional lump sum covered the hours up to that date that the complainant worked in excess of his 48-hour working time requirement.  I find that this complaint is well founded and that the complainant has established that he was not paid for all the errors that he undertook for the respondent.  On that basis I believe he is owed additional pay for 10 hours per week after July. This would appear to be a 12-week duration. The complainant was in receipt of €20 per hour and accordingly I find that the shortfall is equal to €2400.

CA-00068023-004 Employment Equality

The complainant submitted that he suffered from discriminatory treatment linked to his family status and a mental health issue. He gave oral evidence that his treatment and at the hands of the employer impacted upon his family life. However, he did not provide any evidence of being less favourably treated on the basis of his family status.

Under section 85A of the Act: “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 has not established any facts regarding his submission that he was discriminated under the family status ground.  Accordingly, I find that he was not discriminated against under this, the family status, ground.

He also gave oral evidence that he was off on certified sick leave with a mental health issue. However the sick certificate simply reads ‘medical illness’ but does not relate any specific illness or disability.

The Act defines the meaning of disability as follows:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

The complainant has not provided any evidence that he suffered from a disability as outlined in the Act.

Under section 85A of the Act: “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 has not established any facts regarding his submission that he was discriminated under the disability ground.  He has not established that his employer was aware that he had a disability, nor were they aware of the nature and scope of that disability.  He did not provide any documentary proof or medical to establish the existence of a disability either to his employer of to the WRC through the course of the hearing.  Accordingly, I find that he was not discriminated against under the disability ground.

CA-00068023-002 Penalisation under the Organisation of Working Time Act

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is not well founded.

CA-00068023-003 Payment of Wages

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is well founded and I direct the respondent to pay the complainant compensation of €2400 which I consider to be reasonable in the circumstances.

CA-00068023-004 Employment Equality

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not discriminated against in accordance with the provisions of the Act.

Organisation of Working Time – penalisation – not well founded – Payment of Wages – complaint well founded – award of compensation – Employment Equality – Family Status ground – Disability ground - no facts established to support a finding of discrimination – complainant not discriminated against