By Alberto Furfari- Rosario Version
The Second Chamber of the Labor Appeals Chamber confirmed a conviction against the owner firm of Rock & Feller and 2 administrators for registering a worker for fewer hours than her working day and in a lower category.
Chambermaids Fernando Marchionatti and Adriana Mana revoked the first instance ruling in that it ordered tips to be considered in the worker’s salary. They recalled the total prohibition of the personnel included in the collective agreement, from receiving monetary sums from passengers/diners or from clients who use the services of each establishment, or from businesses or service companies that could sell products and/or services to themselves. This prohibition specifically includes tips.
The first instance judge, through a ruling of December 20, 2023, decided to grant the lawsuit, jointly condemning Food Corner SA (the company that owns Rock & Feller) and the administrators Guillermo Isaac Rosental and Sergio Daniel Kierzkowsky to pay labor expenses to the worker. .
The plaintiff was sponsored by lawyers Mónica Domina, Tulio Baracco and Melisa Testa. They were sentenced to pay compensation for seniority, compensation in lieu of notice and its bonus, salary differences for non-prescribed periods; unpaid difference in remuneration corresponding to December 2021; differences due to non-prescribed Supplementary Annual Salary; unpaid differences in proportional vacations in 2021; fine provided for by art. 15 of Law 24013; fine regulated by art. 10 of Law 24013; aggravation of compensation provided for by art. 2 of law 25,323; sanction established by DNU 34/19 and its amendments; fine regulated by art. 80 of the Employment Contract Law and the delivery of the work certificate and documented proof of the payment of contributions according to the true working day, category and remuneration, under warning of astreintes.
She worked as a waiter, managed the cash register, attended to suppliers and maintained that she should have been classified in category 6 of the collective bargaining agreement. She added that her weekly workload was 54 hours even though she was registered as part-time.
He explained that the former employer had an operating system in which workers had to charge the amounts of tips given by customers and that these amounts were distributed at the end of the day in the following way: 40% for the waiters, 40% for the runners and 20% for kitchen employees, which the defendant did not prohibit their payment by customers and which, therefore, form a -substantial- part of their remuneration.
In reference to the salary, he stated that 4 hours were paid in white per bank and the rest of the hours were charged in black at the Oroño and Jujuy locations.
