Complainant

Respondent

Parties

Ali  Rajob

Kaf Pizza Limited /

Mr. Muhammad Asim of Glounthane, Co. Cork

Personal responsibility for the monies owed has been accepted at hearing by Mr. Muhammad Asim of Glounthane, Co. Cork [Full personal address provided by him to the WRC Adjudication Officer, at hearing. Decision to also be served on him personally, with his consent.]

Representatives

Self-represented

Self-represented

Responsibility for the monies owed has been personally accepted at hearing by Mr. Muhammad Asim of Glounthane, Co. Cork [Full personal address provided]

Act

Complaint

Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 8 of the European Communities (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of

CA-00070241-001

25/03/2025

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

CA-00070241-002

25/03/2025

The Complainant worked for the Respondent from 1/7/2024 until he finished up in September/October 2024, approximately. He said that he worked for the Respondent for seventeen (17) weeks, in total. The Respondent submits it was fourteen (14) weeks.

This complaint pertains to unpaid annual leave and unpaid public holiday pay. It is acknowledged by the Respondent that both are owed, and Mr. Muhammad Asim has personally undertaken, at hearing, to pay those monies owed. He was an owner of the business at the time. It was indicated that there may be a re-configuration, in the offing, in relation to ownership. [Adjudication Officer Note: The CRO’s records do not, at the time of writing, indicate any ownership change beyond the initial one pertaining to Mr. Asim’s wife.]

There are other allegations made too in relation to mandatory excessive work hours, which are denied by the Respondent. The Respondent submits that he mirrored the arrangements of the previous owners, and that the Complainant sought the hours/shifts he worked but that they did not roster him above 48 hours per week (as per the requirements of the Organisation of Working Time Act 1997).

The Complainant sought to advance the argument that he had suffered stress/burnout at work which had resulted in a hospital admission. This was denied by the Respondent who submitted that the Complainant had contemporaneously told him that his stress was linked to personal family circumstances, ongoing in his home country, at the time.

The Complainant, Mr. Ali Rajob, took the oath and gave evidence on his own behalf, at hearing.

The Complainant worked for the Respondent from 1/7/2024 until he finished up in September/October 2024, approximately. He said that he worked for the Respondent for 17 weeks, in total.

This complaint pertains to unpaid annual leave and unpaid public holiday pay. It was acknowledged by the Respondent that both are owed.

The Complainant said he worked 13/14 hour shifts. He submitted that he did not receive appropriate rest breaks and on occasion, was rostered in such a way as to not receive an 11 hour break over-night, contrary to the Organisation of Working Time Act 1997. He alleged that he was required to do mandatory overtime.

He said that he received no contract, that that he worked any long hours and did not ask to work fewer. He submitted that he is not married, that he is single, and disputed the suggestion made by the Respondent that he had sought extra shifts in order to show a certain level of income on his payslips, with a view to sponsoring his wife to move to Ireland.

He said that he did not get appropriate rest breaks, that he worked the rostered shift of 13-14 hours, then two more hours of mandatory overtime, and then worked (as rostered) again. He said that he was not getting a chance to go home, shower, eat, sleep eight (8) hours etc.

He outlined that he asked to be paid both his annual leave and public holiday pay. He said that he ‘asked for both, they didn’t sort it, they ignore[d] me.’ He said: ‘I emailed them. They texted.’

The Complainant sought to advance the argument that he had suffered stress/burnout at work which had resulted in a hospital admission. This was denied by the Respondent who submitted that the Complainant had contemporaneously told him that his stress was linked to personal family circumstances, ongoing in his home country, at the time.

He said that he ‘did 40-41 hours’ but ‘when it’s busy on weekends, they forced me to do extra hours’ [at the end of his shift]. He said the additional mandatory shift could be 4/5/6 hours.

He said that was reflected on his payslip and he characterised it as mandatory.

He said that he left the job in September 2024. He said in relation to the Respondent’s submission that ‘they were offering to pay’, he said ‘they didn’t pay bank holiday pay or holiday pay.’ He said he ‘waited 3 or 4 months’ but that they ‘ignored me.’ He said: ‘I sent them [an] email but they didn’t respond.’

It was put to him that Mr. Asim had gone to the shop and offered to pay him.

His assertion of mandatory over-time was denied by the Respondent. That was also put to him, which he denied.

Mr. Asim accepted personal responsibility in terms of discharging the monies owed, supplied his personal address to the Adjudication Officer, at hearing, requested that the decision be sent to his address (served on him personally), and undertook under oath to discharge the monies personally to the Complainant.

Mr. Farrukh Fiaz – presenting the case on behalf of the Respondent (under oath).

He outlined that he is a joint-owner of the business, along with Mr. Asim. He confirmed that the dates outlined by the Complainant, as to when he worked for the Respondent were approximately correct. He outlined in relation to the hours for which the Complainant was rostered, that he had ‘requested the hours which we gave him.’ He said that nobody else (no other staff member) was doing 48 hours – he (the Complainant) was the one who requested those hours.

Mr. Asim was making the roster. Workers were typically doing 30-35 hours per week. He disputed the Complainant’s allegations in relation to taking breaks, and submitted that everyone knew to take their breaks. He submitted that the Complainant approached Mr. Asim outlining that he wanted to sponsor his wife from Bangladesh (to move to Ireland). He said: ‘We never pushed him’, but rather ‘we were new and we were pushed.’

He denied the Complainant’s allegations in relation to exhaustion, outlining that at the time – the very next day or the day after - the Complainant had explained that the stress was related to a family problem back home, involving his brother. He queried why the Complainant had never make a complaint or said ‘I cannot work those hours.’

In terms of annual leave, he said that the Complainant was asking him for the contract (of employment). He said that he was sick and said: ‘Once I’ll be back, I’ll give you the contract.’

In terms of the holiday pay owed, he was unclear how much was due, but acknowledged there was an amount outstanding. He expressed that he was not sure whether – depending on how much notice an employee gave – whether outstanding untaken annual leave could be offset against that. The Adjudication Officer clarified at the hearing, that it could not – that there are minimum statutory entitlements, in relation to annual leave which are separate to the minimum statutory entitlements pertaining to notice and notice pay.

He acknowledged that the Complainant had not received the 8% of hours worked, and that those monies were owed.

There was an email in which the Complainant had requested the amount due. The outstanding pay related to untaken annual leave was due to be 64/65 hours x €14, which (taking the higher figure) = €910.

It was further acknowledged that there was outstanding public holiday pay owed. The only public holiday to fall within the relevant time frame is the August bank holiday weekend.

Mr. Muhammad Asim took the oath and gave evidence.

He outlined that he (jointly) owned Kaf Pizza Ltd.  at the relevant time. He explained that when he started the company, he and his wife owned it in partnership (paperwork) but after three (3) months, it was transferred.

He outlined the sequence of events, from his perspective. He explained that the shop was handed over (from the previous owner) on July 1st, 2024. Prior to that the Complainant ‘was working with the previous owner, [the business had a] different name, he was working with them approximately 48 hours [per week], but I didn’t see the roster or anything like that.’ He explained that the Complainant left the job after a few days or a week, that he got a job somewhere else. He persuaded the Complainant to return, saying to him: ‘Ali, you’re a good worker, because you know everything. If I hire new staff, I have to train them.’ He said that he told the Complainant: ‘Whatever you want I can give you no problem. By law, I can give you 48 hours.’

He said that he asked the Complainant what he needed each time he made the roster and that the Complainant always told him: ‘I need 48 [hours].’

He said that he reduced the hours the other staff were working to accommodate that – some were working 19, 20, 30 or 35 hours whereas the Complainant was working 40 or 48 hours. He said that the Complainant told him that he needed to apply for his wife [for a visa], that he ‘needs it on his payslip’ [to demonstrate that he has sufficient income] He said that the Complainant wanted to work as a delivery driver also. He explained that he told the Complainant: ‘I don’t mind but I don’t think I can’t give you [delivery driver work] as well’ [as it exceeded the mandatory maximum total of 48 hours per week.]

He said that the Complainant worked for him for approximately 14 weeks. He said that when the Complainant had the hospital admission, he stayed with him in the Mercy Hospital. He outlined that the Complainant told him he had a problem back in Bangladesh, some family related problem. He said that he asked if there was any kind of help he could offer. He said that the Complainant was okay, that he was back at work within 2-3 days (with the same hours). ‘He had no issue.’

He said that after that, the Complainant left the job, that he did not give a reason. He started working in a different job – initially a security job, then another job working for a different pizza company, doing pizza delivery driver as well.

He said that when the Complainant made a complaint, he went to his shop, and asked him: If you had any problem, why didn’t you tell me? Querying: Why did you not mention anything to me?

He said that he told him: ‘If you have any problem with money, I can pay you straight away.’

Mr. Asim said that he went to the previous owner (to try to get an intermediary). First, he called him. Then, he text him. He said the Complainant said: ‘Can you email me? I can’t reply on the phone.’

He said that he was in a position to pay the Complainant.

The Complainant was given an opportunity to cross-examine. He re-iterated a number of things from his perspective – his view that there was mandatory overtime required at the end of certain shifts, if it was busy, that he did not receive sufficient breaks/rest breaks, that he had not been paid his pay pertaining to his outstanding annual leave or public holidays, that in his view he had suffered stress as a result of his employment, and that he had had a hospitalisation.

The Complainant filed two complaints.

In relation to the first complaint (CA-00070241-001). I find that this complaint is not well founded. I find the Complainant has not substantiated the pattern he described of mandatory excessive work hours and a failure/refusal to provide appropriate breaks, on behalf of the employer. I am more persuaded by Mr. Fiaz’s characterisation of events.

Additionally, from a procedural perspective, this particular complaint was filed under legislation that is not applicable to the Complainant’s employment (although, in certain circumstances, an Adjudication Officer may have jurisdiction/discretion to hear such a complaint).

The second complaint (CA-00070241-002) is well founded. I find that there is outstanding pay pertaining to annual leave and pay pertaining to public holidays (August Bank Holiday 2024) during the relevant period, owed to him.

In line with s. 19(1)(c) of the Organisation of Working Time Act 1997, the Complainant is entitled to 8% of hours worked, which he calculated to be in the region of 64 or 65 hours at a then hourly rate of €14 per hour. This was accepted by his former employer at hearing.

As per s. 21 (1) of the Organisation of Working Time Act 1997, the Complainant is entitled to public holiday pay pertaining to the August Bank Holiday weekend, which fell within his period of employment. This was also conceded at hearing.

CA-00070241-001 – For the reasons set out above, I find that this complaint is not well founded.

CA-00070241-002 – I find that this complaint is well founded. As per s. 27(3)(c) of the Organisation of Working Time Act 1997, I am required to make an award for compensation which is ‘just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment.’

I find that outstanding pay is owed pertaining both to untaken annual leave and to one public holiday, within the relevant time-frame.

I direct the Respondent to pay the Complainant the amount of €1,100 compensation within 42 days of the date of this decision.

Pay; Annual Leave; Public Holiday;