a day ago
Nepalese restaurant worker has €23,000 award overturned over delay in making complaint
A Nepalese restaurant worker awarded more than €23,000 at the
Workplace Relations Commission
last year has had the award overturned by the
Labour Court
.
The court found his complaint about breaches of employment law by the fast food outlet where he worked had been made after the permitted time period had elapsed.
Suman Bhurtel had told the WRC he started working at Chicken Castle Ltd's Chicken Club on Main Street, Castleisland,
Co Kerry
, in October 2020 having been given a contract that suggested he would receive €30,000 a year for a 39-hour week, equivalent to €576.92 per week or €14.79 an hour. Accommodation was also included in the deal.
However, the WRC concluded from the evidence presented Mr Bhurtel had been paid an average hourly wage of just €8.24 while working there, €6.52 less than the hourly wages set out in his contract and more than €3 under the €11.30-an-hour minimum wage in force at the time.
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Among the other complaints made by Mr Bhurtel, who was represented by the Migrant Rights Centre Ireland (MRCI), was that he worked 92 Sundays and various public holidays without receiving any premium payments, his working weeks averaged 70 hours, he did not receive the days off he was due, he had taken no annual leave in 2020 or 2021 and was then not paid for his only period of annual leave in 2022 and he did not get to take adequate breaks when at work.
Satwinder Singh, the company secretary, denied Mr Bhurtel worked 70 hours a week and maintained he worked 39 hours as provided for in his contract.
He told the tribunal Mr Bhurtel, whose job included preparing food, taking payments, cleaning and handling takings, was never scheduled to work Sundays or public holidays and said he had paid Mr Bhurtel in cash for annual leave.
The date on which Mr Bhurtel left the job was disputed by the two sides while there was a question over the commission's jurisdiction to hear the case because of the delay in making the original complaints. Mr Bhurtel sought an extension of the period covered by the complaints on the basis that he was totally dependent on his employer because of his work permit and accommodation status.
Adjudicator Úna Glazier-Farmer found the employer 'took advantage' of Mr Bhurtel's situation of 'total dependency' in respect of his accommodation and work permit status and concluded this was reasonable cause to extend her jurisdiction beyond the usual six-month limit to 12 months, giving her the power to compensate Mr Bhurtel for 22 weeks and four days between February 22nd, 2023, and the end of his employment on August 15th that year.
The total of €23,130.94 she awarded him included €6,655.50 for breaches of his rights in relation to rest periods, €4,538.80 in relation to annual leave, €3,244.50 for breaches of the National Minimum Wages Act and €5,496.75 under the terms of the Working Time Act in respect of the difference between the national minimum wage and the hourly rate set out in his contract of employment.
The company appealed all five awards, however, and in a newly published decision the Labour Court found all to have been statute barred.
The court heard Mr Bhurtel's original delay in complaining was also because he had been unaware of his legal rights until consulting with the MRCI and he had been hampered by his first language not being English.
In its decision, however, the court said that 'put at their most basic, the facts speak for themselves ... the application was made out of time and, in the court's judgment ... no explanations 'which both explain the delay and afford an excuse for the delay' have been advanced ... that would permit the court to extend time'.
