Complainant

Respondent

Parties

Sayed Rohullah  Masroor

Lorian (Camden) Limited t/a Zaytoon Restaurant

Representatives

  Self

Naeim Sorush

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-00070668-001

08/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00074688-001

21/08/2025

The Complainant commenced working as a kitchen porter with the Respondent on 08/10/2022.   He was paid €12.70 per hour.  His hours of work varied and he submits that he worked 30 hours per week.  He submitted his complaints to the WRC on 08/04/2025 (Pay) and 21/08/2026 (unfair dismissal).  The fact of dismissal is disputed.

The Complainant gave evidence on oath.  He confirmed that he commenced employment on 08/10/2022.  He confirmed that he was issued with a contract of employment which he digitally signed on 11/11/2022.

The Complainant submits that the rate of pay for working on a Sunday was not fair and submitted his complaint in relation to this to the WRC on 08/04/2025.   The Complainant believes that this was not fair.  In response to questions from the Adjudication Officer he agreed that his contract of employment clearly outlined what the rate of pay for working on a Sunday was.  He also confirmed that he did not raise any grievance with his employer in relation to this payment.  He agreed that the first time his employer was aware of his grievance was when they were issued with a copy of his WRC complaint form.

The Complainant gave evidence in relation to his complaint of unfair dismissal.  He outlined that he had an accident at work on 10/10/2024 and he attended hospital for treatment.  He submitted medical certificates to the Respondent but he never returned to work.  In response to questions from the Adjudication Officer the Complainant confirmed that he did not have a letter of dismissal or a letter of resignation.  The Complainant gave evidence that he was certified fit to return to work on 27/06/2025 but he did not contact the Respondent.   He went on Jobseekers Allowance of €176.92 and was in receipt of this for 40 days.  At that stage he found new employment which paid €500.00 per week.

The Complainant was asked why he did not return to work and he explained that when his sick payments stopped, he sent text messages to the restaurant manager asking why these payments had stopped.  He was contacted by the Area Manager who explained that he would not be in receipt of sick pay.  The Complainant stated that he had heard things from colleagues that he was not wanted back.  He did not engage in any way with the Respondent.  The Complainant believes that the date of dismissal may be the date of his accident 10/10/2024.

Mr Narim Sorush gave evidence on behalf of the Respondent.  He confirmed that he is the Respondent’s area manager.  The Complainant was issued with a contract of employment on 11/11/2022.  This contract outlined that his hourly rate of pay was at that time €10.50 and that he would receive a premium rate of €0.10 per hour for work performed on a Sunday.  Mr Sorush gave evidence that the Respondent employs 150 staff and their contracts are generated and sent to employees for signing.  The employees also have access to a portal for access to pay slips and other documents.  Employees are free to ask any questions or seek clarification in relation to any aspect of their contract or working conditions Mr Sorush stated that he takes issue with the Complainant’s view that he did not understand the terms of the contract.  He was aware that he, Mr Sorush speaks the same language and another manager also speaks the Dari language.  At no stage did the Complainant raise any issue in relation to the Sunday rate of pay. 

Mr Sorush also referred to the pay slips submitted by the Complainant.  These show the amounts of premium pay and are clearly marked as Sunday Premium.  The Complainant has not brought any claim that he was not paid for any Sunday.  His issue is the amount of pay and it is the Respondent’s position that he was paid in accordance with the terms outlined in his contract of employment and with the provisions of Section 14(1) of the Organisation of Working Time Act, 1977.

In relation to the complaint of unfair dismissal.  The Respondent’s position is that there was no dismissal and there was no resignation.  The Respondent provided evidence that as of the end of December 2025 the Complainant was still listed as an employee.  The Respondent did not make any Revenue return to state that he was no longer an employee.  If there was a dismissal the Complainant is not able to confirm what date that took place.  The Respondent submits that the Complainant never responded to their requests to return to work once he was certified fit to do so.  The Respondent believes that the Complainant was not willing to return to work and sent in medical certificates.  The Respondent also clarified that when the Complainant went on sick leave he was paid for the first three weeks.   He then was off pay.  When the Statutory Sick Pay scheme came into force on 01/01/2024 the Complainant was then paid all his entitlements under that scheme.  The Respondent submitted pay slips to confirm this payment.

In a closing submission the Respondent denies that the Complainant was dismissed.  There is no letter of dismissal and there is no date of dismissal.  The Complainant received all his entitlements from the Respondent and he did not return to work.   As there is no dismissal it is clear that there cannot be a finding of unfair dismissal.

CA-00070668-001:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997.

The Complainant was paid €12.70 per hour and submits that he was not happy with the Sunday premium pay of €0.10 per hour.  He did not raise any grievance in relation to this.

The Law:

The Organisation of Working Time Act, 1977, in relevant part, states:

“14.-(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 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”.

I am satisfied that the Complainant was at all times aware that the requirement to work on a Sunday was an integral part of his role with the Respondent.  In his evidence he confirmed that the Sunday premium pay was outlined in his contract of employment.

The Complainant also confirmed that he never raised an issue with the Respondent in relation to Sunday pay.  I accept the Respondent’s submission that the Sunday premium was specifically outlined in the contract of employment and that the Complainant received all his Sunday premium pay. I have decided that this complaint is not well-founded.

CA-00074688-001:   This is a complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977.  The fact of dismissal is in dispute.

Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v. Joseph McManus UDD 1753 the Labour Court held as follows,

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined.”

As the Complainant is claiming that there was a dismissal, and he is not claiming it was a constructive dismissal, the burden of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such that his employment was terminated.

The definition in Section 1(b) of the Act which provides that:

“dismissal”, in relation to an employee, means—

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

Section 6(1) of the Act states:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The date of dismissal is defined as

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which that notice expires,

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Acts 1973 to 2005.

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specific purpose (being a purpose of such a kind that duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of expiry or cesser;”

It was suggested by the Respondent that the claim was misconceived as the Complainant had not worked for the Respondent since 10/10/2024 although he remains on their books.  His job was still there but he decided not to return. 

Having considered all the written and oral evidence presented to me, it is clear that the Complainant has failed to establish any facts which would “establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined.”

I have therefore decided that the Complainant was not dismissed, constructively or otherwise. 

CA-00070668-001:  Having regard to all the written and oral evidence presented to me I have decided that this complaint is not well-founded.

CA-00074688-001:   Having regard to all the written and oral evidence presented to me, I have decided that the Complainant was not dismissed, constructively or otherwise.

Sunday premium pay.  Fact of dismissal in dispute.