Complainant

Respondent

Parties

David  Byrne

J.M.S International Holdings Limited T/A Shanahan's On The Green

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

Non-attendance

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00068855-001

27/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00068855-002

27/01/2025

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The respondent did not attend the hearing of these complaints.  Written notification was sent with the details of the hearing by way of registered and ordinary post.  It has been widely reported that the respondent ceased trading and this was confirmed by the complainant.  The Companies Registration Office website continues to indicate that the company is in existance.

As the evidence in this case was not in contention, oral evidence was given without recourse to the oath or affirmation.

The complainant stated that he was told on a Sunday night that the respondent would be closing its doors.  He was assured that he would receive his pay and entitlements, however none was forthcoming.

CA-00068855-001 Payment of Wages

The complainant submitted that he was not paid for his final weeks work with the respondent.  He stated that he worked three shifts and was entitled to wages of €360 and to service charges and tips.  The complainant provied figures from the history of his employment (four weeks) and based on that the average service charge and gratuities were calculated.  This amounted to a further €74.80 service and €47.63 tips.

CA-00068855-002 Holiday Pay

The complainant submitted that he was not paid his holiday entitlement.  He gave evidence of having worked 168 hours for the respondent.

The respondent in this case did not attend the hearing of the complaints.

The complainant came across as credible, providing figures and testimony in support of his complaints.

CA-00068855-001 Payment of Wages

The complainant submitted that he was entitled to, but not paid €360 wages and an average of €122.43 in service charges and gratuities.

The definition of Wages in accordance with the Act is as follows:

wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind,

(vi) any payment by way of tips or gratuities.

From the definition of wages above, it appears that tips, gratuities and service charges are excluded from the definintion.  However Section 6(1) of the Act states:

Complaint to adjudication officer under section 41 of Workplace Relations Act 2015

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

Having regard to the foregoing, I am satisfied that the Act has been breached and that the employee is entitled to paymentof his wages, the appropriate service charge and tips, i.e. €482.43, less any lawful deductions.

CA-00068855-002 Holiday Pay

The  complainant has established to my satisfaction that he worked for the respondent for 168 hours.

Section 19(1) of the Organisation of Working Time Act calculates the annual leave entitlement in the following manner:

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

Having regard to the evidence provided by the complainant, I am satisfied that he has established that he was entitled to 13.5 hours leave - 8% of 168 hours.  I find that his complaint is well founded.  His average hourly rate was calculated out to be €15.  Therefore the complainant was entitled to a payment of €202.50 in respect of the annual leave he accrued.

CA-00068855-001 Payment of Wages

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the Act was contravened and I award the complainant compensation of €482.43, less any lawful deductions.

CA-00068855-002 Holiday Pay

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is well founded and I award the complainant compensation of €202.50 having regard to all the circumstances of this complaint.

Payment of Wages – act contravened – award of compensation – Organisation of Working Time Act – Annual leave entitlement – complaint well founded – compensation awarded