Key Contacts:  Patrick Walshe – Partner

The Workplace Relations Commission (“WRC”) has handed down a decision against an employer in respect of various serious breaches of the Organisation of Working Time Act 1997, as well as the Unfair Dismissals Act 1997, the Terms of Employment (Information) Act 1994 and the Payment of Wages Act 1991.

Ascot Catering Limited, trading as Ciao Bella Roma on Parliament Street in Dublin City Centre had more than 33 separate findings made against them arising from their treatment of five former employees. The employees who took the complaints worked in various roles in the restaurant, namely as chefs, a kitchen assistant, bar staff and a bookkeeper.

The employer did not enter an Appearance in the matters nor engage with the WRC at any stage, which included non-attendance at the hearing of the matter.

The case arose in circumstances where the employer shut down their business on the 18th March 2020, just as the Covid-19 pandemic hit Ireland.

The facts giving rise to the complaints vary a little between each of the Complainants. However, in all five cases:

• The Complainants did not receive their statutory notice or payment in lieu of notice;
• They were not paid their last two weeks of wages;
• They did not receive their rest periods in accordance with the Organisation of Working Time Act 1997 and;
• The Complainants brought claims under the Unfair Dismissals Act 1977.

Four Complainants stated they were not paid for their annual leave entitlements. Also in four cases, the Complainants stated they did not receive any Sunday premium when they worked on Sundays. This of course is required to be provided by employers under s. 14 of the Organisation of Working Time Act 1997. Two Complainants said they did not receive their contracts in line with the Terms of Employment (Information) Act 1994.

One of the Complainants, Mr Maties, gave evidence indicating that he visited the restaurant when it re-opened in August 2020 to enquire about wages that were owing to him and his former colleagues.

According to Mr. Maties evidence, he was forced to leave the restaurant without any satisfactory indication of what would happen in respect of promises to honour outstanding payments. The employer also would not say anything as regards their status as employees and the prospects of returning to work.

In respect of rest periods, Mr Maties told the tribunal that he “barely got any breaks” while he was in the job and would eat whenever he got the chance – sometimes barely finding time to use the bathroom.

Mr. Pat Brady, the Adjudication Officer noted that in all five cases the employee’s work environment was one where “statutory rights to breaks, and to paid holidays and public holidays were not respected.”

It was also Mr. Brady’s view that “the breaches of the Organisation of Working Time Act were extremely serious and there was a chronic, institutional failure to honour the entitlement to breaks”.

He awarded €5,000.00 as compensation for breaches of the right to daily and weekly rest periods to three of the Complainants. One other Complainant received €2,500.00 in respect of daily rest periods only as he did not bring a case in respect of weekly rest periods.

One employee was awarded €1,347.00 for the employer’s failure to provide a written contract, though a complaint by his colleague on the same basis was ruled “not well founded”, as the worker had stated in evidence that he received written terms.

The WRC awarded a total of €15,403.00 to the employees in respect of their unfair dismissals.

The WRC ordered the payment of €4,772.00 in unpaid wages, €9,706.20 in notice pay, €3,375.25 in public holiday pay, and €8,217.00 in pay for annual leave.

The total orders against Ascot Catering Ltd in the case amounted to approximately €62,000.00.

The case’s decision is a precautionary tale for Irish employers. It highlights the importance of providing employees with their statutory rights for proper resting periods. The WRC will not look particularly kindly to employers where there is an “institutional failure” to provide adequate resting times. It also shows the importance of providing employees with written contracts of employment within the timeframe laid down in statute i.e. 1 month from the commencement of employment.

A key takeaway for employers would be to have adequate policies in place in respect of resting periods, notice periods, Sunday premium, holiday pay and public holidays which are consistent with an employee’s statutory rights.