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Waitress awarded €4,600 for multiple employment law breaches at Mexican restaurant

Second adverse Workplace Relations Commission ruling this year for owners of El Grito restaurant in Dublin

The Workplace Relations Commission found against Dublin Mexican restaurant El Grito on multiple employment law violations

The Workplace Relations Commission has found against the proprietors of Dublin Mexican restaurant El Grito for the second time this year. Photograph: iStock

Stephen Bourke
Wed Apr 12 2023 - 14:53

The owners of a top Dublin Mexican restaurant have been ordered to pay a waitress €4,600 for multiple employment law breaches, including the failure to provide proper shift breaks.

Paola Alba Dalivar told the Workplace Relations Commission (WRC) last year that she “never received a rest break” at the El Grito Mexican Taqueria unless she worked more than eight hours – and some days got no break at all.

Accepting the complainant’s uncontested evidence, an adjudicating officer wrote that the law on shift breaks provided for worker safety – and that it was “not acceptable for employers to ignore the health and safety of their employees” by failing to comply.

Ms Alba Dalivar, who worked at the restaurant as waiting staff from August 2018 to July 2021 earning €12 an hour for a 35-hour week, said that although she had signed a copy of an employment contract, she was never given a copy.

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In the six months before lodging her complaint, the limit of the WRC’s jurisdiction in the matter, the complainant said she had worked 18 Sundays without receiving any premium pay. Nor did she get “any extra pay” for working four bank holidays or the days off or pay in lieu required, she said.

She said that although she got an unexplained payment of €1,364.76 when she left the employment, she said she “had not received any holidays” between September 2020 and June 2021.

She further alleged that she had been left without her full entitlement to paid leave in the 2021 annual leave year, and was also not given an unbroken fortnight off work.

The complainant gave the tribunal 12 dates during the period when she said she didn’t get her roster until less than 24 hours before her shift.

Appearing at a hearing last summer, her solicitor, the late Richard Grogan, submitted copies of the rosters – pointing out that it recorded that staff “working a 10-hour period would receive two breaks of 20 minutes, which is contrary to the provisions of the Act”.

The restaurant owners made no appearance when the case was opened at a hearing last summer.

In her decision, adjudicating officer Maria Kelly found there had been seven distinct breaches of the Organisation of Working Time Act 1997 in the case, along with a further breach of the Terms of Employment (Information) Act 1994 for the failure to provide a written contract.

She awarded the complainant €1,000 for the working hours breach on shift breaks, €820 for not providing written employment terms, €500 compensation for each of the five working hours breaches and a further €336, four days’ pay, for the bank holidays.

The total orders against the restaurateurs was €4,650.

It’s the second compensation order this year against the restaurant proprietors, following a separate decision in January in which WRC adjudicator David James Murphy wrote that they “appear to have openly operated a system which did not comply with minimum break entitlements”.

In that case, also heard in the absence of the restaurateurs, Mr Murphy awarded €1,200 to Monserrat Gordillo for breaches of the Organisation of Working Time Act in its shift break policy.

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