ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00010415
A bar manager
A bar restaurant
Mary-Paula Guinness BL instructed by Whitney Moore Solicitors
Peter Shanley BL instructed by Patrick O'Neill & Co Solicitors
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 16/05/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 5th September 2017, the complainant referred complaints against this respondent to the Workplace Relations Commission. He also referred complaints subject to adjudication report ADJ 10384 against another respondent, referred to in this report as ‘the limited company’.
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complainant, a bar manager, claims unfair dismissal and other employment law breaches; the respondent denies the claims.
Summary of Complainant’s Case:
The complainant outlined that he, his father and the director took a lease on a basement premises in a city centre shopping centre. The complainant and his father were taken on as employees. They obtained the lease in October 2010 and his father then became ill. The complainant managed the respondent premises. He attended five days a week and one or two nights. He took bookings and was responsible for running the premises.
The complainant said that he never received a contract of employment or pay slips until the WRC inspection. The first difficulties arose when he was accused of stealing money in July or August 2016. A manager and supervisor approached him on his return from holidays to say that he had been accused of stealing. They were giving him the heads up of what the director was saying about him. There were no disciplinary proceedings taken against him and he asked the director why he was saying that the complainant had stolen. The complainant said that their relationship then became strained. A manager left at the end of September and the complainant talked the supervisor into staying for a short time. She left and another manager left in December, leaving the respondent at sea in the busiest period. They could have 20 or 30 bookings a night in the Christmas time.
In respect of his pay, an accountant suggested that the complainant be paid in two tranches from both the respondent and the limited company. The complainant was providing services to both entities. He was paid €300 for the work for the limited company. In January 2017, the respondent stopped paying the complainant on a weekly basis. There were some payments in January and February. The last payment was made on the 9th February 2017. He was not paid after this time, but he continued to attend to work.
The complainant was ill at the end of January and in hospital twice between then and the end of February. He had an operation and was in hospital for three weeks in May. On his return, the complainant said that he was no longer getting emails and his computer was taken away. He commented that the computer and lap top were mirrored but they disappeared over a weekend. The company credit card was stopped without warning in April or May. He only found this out when getting petrol for the car. The complainant outlined that the director would hang up when he answered the restaurant phone. He was locked out of the office on the 15th August 2017. There was a biometric entry system and other members of staff could gain entry. He referred to his solicitor’s letter of the 29th June 2017, which pointed to the shortfall in salary. The complainant said that his date of resignation from the respondent was the 5th September 2017.
The complainant said he provided services to the limited company, which runs a named public house at a different location. The complainant was both a shareholder and an employee. He was more involved in the business end and attended weekly meetings with the accountant.
Since his dismissal, the complainant said he tried to set up two businesses, mainly in France. This took a great deal of effort and they are almost there. He had not worked since then in trying to get this business running. The complainant said that he has been self-employed all his life. He asked several friends for work, nothing was available.
In questioning, the complainant did not accept that this claim stemmed from a separate shareholding dispute, but because he was not paid and not let do his work. The director had not confronted him regarding the allegation of stealing. It was put to the complainant that the director confronted him in October 2016 regarding abuse of the credit card and his refusal to work more than 15 hours per week; he denied that this confrontation took place. It was put to the complainant that this confrontation took place at the restaurant; he replied that this did not happen. It was put to the complainant that he had used the credit card in Marbella; he replied that he had done this before. He said that the director made no accusation against him. The director had agreed to paying for the cleaning of his parents’ home through the company. The complainant did not accept that he had accrued €12,000 in expenses over two or three years.
In further questioning, the complainant did not accept that in October 2016, the director raised the issue of setting up mobile phone accounts, but he accepted that his family members had phones from the company. He did not accept that this was unauthorised use of company property or that the director had raised it. The complainant did not accept that he had given a loan from the company to a named staff member of €4,000. This was not put to him in October 2016. It was put to the complainant that in October 2016, he was asked about his instruction to increase his weekly pay to €1,500 per week; he did not accept this. It was put to the complainant that he wanted to sell the venue; he replied that they were not getting on and said that they should sell or buy each other out. This took place in October or November 2016. The director had first agreed but then changed his mind, who mentioned wanting to have the place for his children. The complainant obtained a valuation from an estate agent at Christmas time. They had both agreed to part company and he could not remember when he made the decision to part ways. He said that the business deteriorated, and they lost staff. One person was destroying the business and staff left because of his attitude. The complainant rejected that he left in a huff in October or November 2016 and did not return until the new year.
The complainant outlined that his day-to-day role related to bookings and generating business. He did not accept that he worked no more than 15 hours week and never any nights and that the director had raised this with him. He did not accept that the director had said he was required to work a full week. He did not accept that he refused to work any nights. He said he worked 40 or 50 hours a week and had worked 60 or 70 hours a week in 2010 or 2011. He did not accept that his role only related to internet bookings and the Facebook page. He did not accept that he refused to increase his hours. He outlined that in 2017 he continued to work the hours he always worked. He denied that he failed to inform the director of sick days in January and February. He emailed when he would not be present.
It was put to the complainant that he only raised the non-payment of wages on the 29th June 2017. He was asked what he did in the months before then; he replied that he was working at the venue. The emails stopped on the 31st May and the computers taken in June. He said that the limited company initially paid him, but, for tax purposes, this work was paid via the respondent. It was put to the complainant that he had not written to the limited company about his dismissal. It was put to the complainant that he had not worked since leaving the respondent; he replied that he had worked every day. He accepted that he had not been paid a salary since then. It was put to the complainant that he mentioned being self-employed all his life; he replied that he had been employed by the respondent and built the business. He was not registered for VAT. After dismissal, he asked different people in the business for work, for example someone in lighting and sound and a publican. He made no formal applications and was trying to get a business off the ground. He was too old for a bar role. Senior manager roles are few and far between.
Summary of Respondent’s Case:
The director outlined that the respondent incorporated in 2010. The complainant’s father, the complainant and he were life-long friends. They decided to give the respondent venue a go, but the complainant’s father took ill. The complainant signed the cheques for the construction on the premises, amounting to €315,000. This is a loan due to the complainant’s father. There was no dispute with the complainant’s father that this would be repaid at €1,200 per month. There is a small amount outstanding and this is in dispute.
The director said that the complainant was very energetic at the start and worked long hours. He attended work in the mornings and there were no rosters. It was based on trust, but this deteriorated when the night club went into liquidation. The director was “put out to the wolves” as the complainant was not listed as a director. The deterioration occurred in 2016 and the complainant began working only 15 hours per week. The director had to fix the paperwork for the liquidation of the night club. The complainant was not working nights. He never accused the complainant of stealing, Money went missing from the safe and the complainant and the manager had a key. It was the complainant who said that people were talking about his stealing.
At the time of the liquidation of the nightclub, the director made enquiries, for example why there was only a float of €5,000 in the safe when there should have been €10,000. The complainant accepted the manager had been given a loan. This manager left for personal reasons and still owed €2,500 of the debt. The director asked the complainant “what’s going on here”. This confrontation took place in October 2016 and his wife was present. She was concerned about the night club and the discovery of the loan. The confrontation took place at the cocktail bar and he raised four or five issues. They included the money issue, the decreasing turnover and the complainant not attending financial meetings regarding the venue’s debts. The director brought to the complainant’s attention that there were debts to suppliers of €150,000. He raised the use of credit cards, as the complainant had maxed his card.
The director told the complainant that he would have to go on a roster and would have to work more hours. He did not draft any document after the meeting, despite the absence of the paperwork from the night club liquidation when he was “thrown to the wolves.” The director outlined that the accountant and book keeper were also at the financial meeting, which the complainant did not attend. He was invited the week beforehand via his personal email account. The director outlined that he also raised the mobile phone issue. There were seven mobile phones. The complainant said he wanted to keep 5 of the 7 numbers and his brother wanted to keep one further number. The director became aware of the house cleaning in 2014 when it started in 2010. This was not discussed at the meeting.
The director outlined that the complainant attended work sporadically over the Christmas period. The supervisor stayed because the complainant agreed to pay her €700 per week instead of €450. The complainant’s salary was €1,500 per week gross. The director outlined that he was present at the venue and knew that the complainant was not there. The complainant refused to work the full roster on medical grounds. The director said that the Christmas bookings in 2016 were disorganised so his daughter to manage bookings. He also answered emails.
Payments were not made to the complainant in 2017 as there was no money to pay him. It was best that the respondent paid neither the complainant nor the director. The director said that he took control of the business as he was left in limbo. He did not treat the complainant as an employee so did not instigate disciplinary proceedings. He changed the passwords after the complainant locked a lap top. He asked the complainant for the computer passwords in February 2017 and he refused to give them. The director outlined that there was no money to pay the complainant, who was not attending work. The complainant was trying to make out that he was working. The complainant came in now and again during 2017.
The director outlined that the limited company was majority owed by the complainant and his father. The complainant was not employed by the limited company.
In questioning, the director did not accept that the complainant was an employee of the respondent and this was why he did not have a contract of employment. It was put to the director that the complainant was paid through payroll and tax was deducted. The director accepted that he said that the complainant went “on a huff” in October 2016 and he came in sporadically in 2017, but he kept paying him. He accepted that he had changed the passwords in May 2017, took control of the business and stopped sending the complainant emails. The director said that he wanted the complainant to come into work and the passwords were changed for safety reasons as the complainant was not around. The director was asked whether the complainant was sent financial information; he replied that as the complainant did not attend the financial meeting, they decided not to send him information. The director said that the complainant’s biometric access was probably changed by two staff members after an incident between them. It was put to the director that the complainant attended work until June 2017 and the payments stopped in February 2017; he replied that the complainant was paid until February 2017 and it is not accepted that the complainant worked until June 2017. It was put to the director that he did not respond to the letters of the 29th June 2017 and the 5th September 2017. It was put to the director that the respondent had stopped paying the complainant, had removed his access to a computer and his access to the building, so he had no option but to consider himself to be dismissed; he replied that the business was in a downturn with constant mistakes. The complainant never worked weekend nights. He would have been dismissed had he treated him as an employee.
In re-examination, the director said that the complainant was not paid after February 2017 because the complainant attended so few hours and the company could not afford it. In closing, the respondent submitted that there had been a confrontation between the director and the complainant. They differed on the number of hours worked by the complainant, who had only sporadic involvement in the business. This dates back to October or November 2016 and the complainant effectively walked away from the business. The respondent submitted that this claim was to exert pressure in respect of other disputes.
Findings and Conclusions:
This is a complaint of unfair dismissal. The first issue to determine is whether the complainant was an employee of the respondent. As well as a friendship, the parties had business dealings with each other in various projects. While the respondent director may not have considered the complainant to be an employee, it is clear from the evidence that an employment relationship existed between the complainant and the respondent. This finding is fortified by the provision of pay slips.
The second issue is the date of dismissal. The complaint form refers to the 5th September 2017, the day the complaint was referred to the Workplace Relations Commission. The complainant asserts that this was the date he deemed himself to be dismissed; there is no letter of resignation. The respondent asserts that the complainant ceased attending work and also did so sporadically following the “bust up” in October 2016.
The Unfair Dismissals Act defines [constructive]“dismissal” as
“(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”
Solicitors for the complainant wrote to the respondent on the 29th June 2017 requiring his re-instatement to the respondent premises. A holding reply was sent on the 4th July 2017 and no further response issued.
I find that the date of dismissal is the 5th September 2017, the date the complainant considered himself to be dismissed.
In respect of whether the claim of constructive dismissal succeeds, I note that the conflict in evidence regarding the October 2016 meeting. It is striking that the respondent did not prepare a written account of the various issues raised with the complainant (the credit card and hours of attendance). This is particularly the case as the respondent referred to previously having to fix paperwork in the difficult circumstances of the nightclub’s liquidation. I note the conflict in evidence regarding how many hours the complainant attended work. The respondent did not subject the complainant to a disciplinary process for such non-attendance, as one might expect. It is accepted that the respondent ceased paying the complainant in full and then at all. It is not denied that the complainant was prevented the use of respondent resources.
Taking this evidence into account, the complainant was entitled to conclude that the respondent had repudiated the contract of employment to such an extent as not to be bound by it. The payment of wages and access to a place of work are fundamental terms of a contract of employment.
The complainant outlined that he sought to develop alternative projects and made some, undocumented, enquiries for work. I accept that the attempts to set up businesses were time consuming. Mitigation required more efforts to find employment, for example as a manager in the hospitality sector. Taking this into account, I award redress of four weeks’ wages, i.e. €6,000.
This is a complaint pursuant to the Terms of Employment (Information) Act. It is accepted that the complainant was not provided with a statement of the terms of his employment. This is a subsisting breach of the requirement set out in section 3 of the Act. I award redress equivalent to four weeks’ wages, i.e. €6,000.
This is a complaint pursuant to the Payment of Wages Act. The respondent accepts that the complainant was paid in part for January and February 2017 and not at all after that. According to the complainant’s bank records he received four payments from the respondent in 2017: two of €1,033.82 and two others, paid on the 6th January, totalling €1,327.09. I find that these are the amounts paid to the complainant in 2017. I do not find that the pay slips reflect the amounts paid to the complainant (for example, as stated in the last pay slip of the 6th April 2017). I find that the complainant’s weekly wage was €1,500; this is the amount stated on the pay slips supplied by the respondent.
The Payment of Wages Act provides a limitation period of six months. The complaint was referred to the Workplace Relations Commission on the 5th September 2017. It follows that the complainant is entitled to any unpaid wages in the six months prior to this date, i.e. from March to September 2017. The under-paid wages that precede March 2017 are not recoverable as there is not reasonable cause for the late submission of the complaint.
The next question is what wages were “properly payable” to the complainant. He outlines that he was denied access to the premises. The respondent states that the complainant failed to attend work, but there was no documentation challenging his non-attendance or stating that the employment relationship had ended. I find that the complainant was prevented access to the workplace and sought, through written correspondence, his reinstatement. It follows that the complainant is entitled to recover for unpaid wages for the period of March to September 2017, a period of six months. Redress is, therefore, awarded of €39,000. The Payment of Wages Act states that awards should be made in net amounts. Given that it is beyond my legal competence to establish what a net amount might be, the decision refers to this redress less any lawful deductions made.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the reasons set out above, I find that the complaint pursuant to the Unfair Dismissals Act is well founded and I award redress of €6,000.
I find that the complaint pursuant to the Terms of Employment (Information) Act is well founded and I award redress of €6,000.
I find that the complaint pursuant to the Payment of Wages Act is well founded and I award redress of €39,000 less any lawful deductions made.
Dated: 15th February 2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Unfair Dismissals Act / repudiation of contract / mitigation
Terms of Employment (Information) Act
Payment of Wages Act / “properly payable” / limitation period