ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00058658
Parties:
| Complainant | Respondent |
Parties | Adelano Mesquita Sampaio | Enforge Limited t/a Jamie's Italian Restaurant |
Representatives |
| Andrea Montanelli Peninsula Business Services Ireland |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997 | CA-00071197-002 | 30/04/2025 |
Date of Adjudication Hearing: 26/01/2026
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 an employee can present a complaint or complaints of any perceived contravention by the Employer of any of the Acts (Statutes) contained in Schedule 5 of the Workplace Relations Act of 2015. Any such complaint (usually presented in the format of a workplace relations complaint form) is made to the Director General of the WRC. The said Director General can then refer the complaint to the Adjudication services. It is in these circumstances that this matter has come before me - an Adjudication Officer engaged by the Adjudication division of the WRC - to make all relevant inquiries into the complaint or complaints made. Where appropriate, I hear the parties’ oral evidence, and I can consider any supporting evidence provided by witnesses or relevant documentation.
In this instance, the Complainant has made a single complaint of the Employer having contravened an Act contained in Schedule 5 above referred to. This Act in question is the Organisation of Working Time Act 1997. The contravened section is:
Section 18A of the Organisation of Working Time Act, 1997 which provides that where an employee’s contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period, the employee shall be entitled to be placed in a band of weekly working hours.
Section 18A is designed to protect employees whose contracts don’t accurately reflect the hours they actually work. It is a mechanism by which employees can regularise an apparent contradiction between what the Contract of employment says concerning hours being worked and the actual hours being worked. It came into being in response to the pervasive use of zero hours Contracts which are Contracts of employment that do not guarantee minimum hours of employment and purport to pay only for the hours you’re actually given and work.
If you regularly work more hours than your Contact of employment suggests then an employee has a legalright, on application, to be placed into a “band” of weekly working hours that better matches reality. Once an employee establishes a pattern of employment which falls within a band of weekly hours over a specified reference period (usually twelve months), the Employer is bound to accept that as the Contractual fact.
It is noted that pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- - Declare the complaint was or was not well founded;
- - Require the Employer to comply with the relevant provision;
- - Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way. In line with the coming into effect of the Workplace Relations (Miscellaneous Provisions) Act, 2021 on the 29th of July 2021, I can confirm that the witnesses herein were required to give their evidence on oath or affirmation. This was done in anticipation of the fact that there may have been a serious and direct conflict in evidence between the parties to the complaint. It is noted that the giving of false statement or evidence is an offence. The specific details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 30th of April 2025. In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding this date. In the interests of fairness, the WRC acquiesced to an application made for the provision of an interpreter. It is noted that the interpreter is provided to assist the Adjudicator to conduct an orderly and fair hearing of the complaints being made by the Complainant in his preferred language. The interpreter did not guide or assist the Complainant. The Interpreter simply interpreted what was being said by the Complainant. I perceived there to be no difficulty in communication between the Interpreter and he Complainant. |
Summary of Complainant’s Case:
The Complainant was not represented and made his own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant was provided with as much time as he needed to make his case. The Complainant’s workplace relations complaint form read: As if all this wasn't enough, my contract is for 39 hours a week, and she was only giving me 15 hours. I had to beg the restaurant owner to get at least 25 hours so I could pay my rent. I was not provided with supplemental documentary evidence in support of the Complainant’s case however he did provide me (together with the Respondent) with a letter of resignation in the course of the hearing. The evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. The Complainant must establish facts which tend to disclose that there is a reasonable cause of action or that there appears to have been a contravention of a Statute or Statutes. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes or under different sections of the Act herein referenced) which appeared to have been articulated in the Statement/narrative, but which had not been specifically particularised by this (unrepresented) Complainant. It was clear to me that the Complainant had very little understanding of the applicability of Section 18A of the Organisation of Working Time Act, 1997 to his situation. The Complainant gave evidence of an altogether different matter, and I assessed the case he put to me against other Employment Acts wherein a contravention might be identified. |
Summary of Respondent’s Case:
The Respondent was represented by Peninsula Business Services Ireland. The Respondent provided me with a comprehensive written submissions dated 22nd of January 2026. Whilst the submission was somewhat tardy, I am satisfied that the Complainant was not prejudiced by moving forward with the hearing. I have additionally heard from one of the Directors of the company who seemed to have some interaction with the Complainant in the course of the employment. All evidence was heard following an Affirmation. The Respondent witness was questioned by the Complainant. The Respondent rejects that there has been a contravention of the Working Time Act or any Act. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced in this matter. The complainant is a skilled chef who came to work with the Respondent Restaurant in the Dundrum Town centre on or about the 29th of March 2025. The parties agree that the Complainant worked in the restaurant for a trial period before the Christmas of the previous year, finishing in early January of 2025. I understand that the parties agreed that the Respondent would look for the relevant visa which would allow the Complainant to reside and work in this jurisdiction. I have been provided with a copy of the Contact of Employment entered into by the parties which includes a paragraph: HOURS OF WORK Your normal hours of work are as detailed on your weekly Rota which will not exceed 39 hours. This includes evenings and Weekend shifts. From time to time you may wish to request certain days off, the company will try to accommodate requests, but they may not always be possible. I accept that there was an early expectation that the Complainant would be given 39 hours of work each week. However, I would have to concede that the provision of 39 hours was predicated on the need to work evenings and weekends. I am also interested in the fact that the Contract wording does not, in fact, guarantee 39 hours but instead gives an assurance that the Complainant will not be rostered for more than 39 hours. I have no difficulty in accepting that the restaurant in question will be extremely busy at the weekends and rosters would be compiled in accordance with the restaurants needs requirements. By weekend I understand the restaurant means Friday and Saturday and Sunday all day. Th Complainant gave evidence that in the run up to Christmas 2024 when he was working in the restaurant on a trial basis, he was working at least 39 hours a week. The Complainant was, it seems, available to work on the weekends as well as mid-week. When the Complainant returned to the Respondent in March of 2025, he was already committed to working in a second restaurant - a Tapas restaurant in Phibsborough which the Complainant described as a cash in hand arrangement. As might be expected, the second job was also at its most busy over the weekends. In the circumstances the Complainant had to juggle the two roles which meant declining or not being available for some weekend shifts in the Respondent restaurant. These were times when he was most needed by the Respondent. The Contact of employment so stipulates. The Complainant seemed genuinely indignant that the Respondent Employer was not making up the time he was not available to work on the weekend at other times during the week. The Respondent witness gave evidence that the restaurant was simply not busy enough during the weekdays and it made no sense to roster the Complainant only on weekdays. The business we have is a weekend business he said. The Respondent witness did also concede that the restaurant was particularly slow at that time – March of 2025 and that very few employees were working their full complement of hours. On balance I am satisfied that it was the Complainant himself that impeded his ability to take on 39 hours of work with the Respondent restaurant. I accept that it was a quiet time in the restaurant and there may have been a slight shaving on the 39-hour week highlighted in the contract of employment. However, we cannot ever know what might have happened had the Complainant himself been able to make himself available. It is also clear that the Complainant is in the exact opposite position of the person that might be helped by a Section 18A request. His Contract refers to a 39-hour week and not a zero-hour week. I am further not persuaded that, nor have I been directed to, any other contravention of an Employment Rights Act having been committed. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997 CA-00071197-002 - The complaint herein is not well founded and fails.
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Dated: 24/02/2026
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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