ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00054365
Parties:
| Complainant | Respondent |
Parties | Damien McNelis | Kenquin Limited |
Representatives | Self-represented | The respondent did not attend the hearing and was not represented |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00066242-001 | 25/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00066242-002 | 25/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00066242-003 | 25/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00066242-004 | 25/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00066242-005 | 25/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00066242-006 | 25/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00066242-007 | 25/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00066242-008 | 25/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00066242-009 | 25/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994. | CA-00066242-010 | 25/09/2024 |
Date of Adjudication Hearing: 28/03/2025
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015, these complaints were assigned to me by the Director General. I conducted a remote hearing on March 28th 2025, at which I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaints.
The complainant, Mr Damien McNelis represented himself with the support of Mr Rory Mannion. Mr McNelis worked as a head of security for the respondent, Kenquin Limited, which trades as Brady’s Clockhouse Bar in Maynooth. On March 25th 2025, a manager of Kenquin, Mr Declan Kennedy, wrote to the WRC to state that he was unavailable on March 26th. The hearing was scheduled for March 28th. Mr Kennedy’s email was followed by correspondence from Mr Dermot Duignan of DDHR who stated that there was no point in the hearing proceeding without Mr Kennedy. This approach is not in accordance with the procedures for applying for a postponement which is clearly set out on the website of the WRC. The respondent was on notice of the hearing since February 17th and, on behalf of Kenquin Limited, Mr Duignan provided a written submission on March 18th. As both parties were properly on notice and submissions were provided by both sides, and, as the respondent had engaged a HR consultant to represent him, I decided to proceed with the hearing. I have reached the conclusions set out below based on the written submissions and on the evidence of the complainant at the hearing on March 28th 2025.
While the parties are named in this document, I will refer to Mr McNelis as “the complainant” and to Kenquin Limited as “the respondent.”
Background:
The complainant commenced employment with the respondent on September 25th 2023 as head of security at Brady’s Clockhouse Bar in Maynooth. He is a full-time student and, in his submission, he stated that, from the date he commenced on September 25th until December 31st 2023, he worked a total of 333 hours. In this period of 13.5 weeks therefore, it is apparent that he worked an average of 25 hours per week. The payslips he produced in his book of documents for the hearing show that, from January 1st 2024 until he was suspended on April 22nd, he worked an average of 27.5 hours per week. He worked three or four nights a week, starting at 7.00pm and finishing between midnight and 2.30am. Copies of payslips included in the complainant’s submission for the hearing indicate that his rate of pay was increased from €11.30 per hour to €23.00 per hour on November 15th 2023. He also received allowances for working nights and after midnight on Saturdays and on Sunday mornings. In his submission, the complainant said that, after the bar was closed around 2.40am on the morning of Monday, April 22nd 2024, he and a manager had a row during which expletives were exchanged. The complainant was suspended pending the outcome of a disciplinary investigation. In his submission, he said that he declined to attend a meeting on April 30th 2024, because he wanted to review his contract of employment and he hadn’t received a copy. In the respondent’s submission, Mr Dermot Duignan of DDHR stated that the complainant was issued with a contract when he commenced employment on September 25th 2023. It appears from the book of documents submitted by the complainant that, on 6th October 2023, the respondent’s HR advisors may have sent his contract to the wrong email address. The complainant said that he attended a disciplinary investigation meeting on May 6th 2024, hosted by Mr Ray Walshe of DDHR. He attended a further meeting on June 18th, again hosted by Mr Walshe. He was invited to a final disciplinary meeting sometime around June 25th but he was unable to attend due to his college commitments. In his submission, he said that, on June 22nd, he did “a trial night” as a security guard with a new employer in Galway and he started working with this employer on July 3rd 2024. The submissions of both parties confirm that the complainant was dismissed on July 1st. In breach of s.5 of the Payment of Wages Act 1991, the complainant claims that his employer failed to pay him for the full duration of his suspension. He claims that his employer contravened ss. 19 and 21 of the Organisation of Working Time Act 1997, by not paying him holiday pay and public holiday pay. Lastly, he submitted that his employer failed to comply with s.3 of the Terms of Employment (Information) Act 1994, by not issuing him with a statement of his terms and conditions of employment within one month of the commencement of his employment and by not issuing him with a statement of his core terms and conditions within five days of commencement. |
Summary of Complainant’s Case:
CA-00066242-002 – 006: Complaints under the Payment of Wages Act 1991 The complainant was suspended from work on Monday, April 22nd 2024. He claims that he was subsequently paid his wages as follows: Week ending 29th April: €805.00 plus €30.00 allowance (equivalent to wages for 35 hours). Week ending 6th May: €805.00 plus €50.00 allowance (equivalent to wages for 35 hours). Week ending 13th May: The complainant was certified as sick and received statutory sick pay of €550.00 the following week. Week ending 20th May: The complainant received no wages. Week ending 27th May: €966.00 (equivalent to wages for 42 hours). Week ending 3rd June: €483 plus €20 allowance (equivalent to wages for 21 hours). The last date on which the complainant was paid wages by the respondent was June 3rd 2024. He claims that he is entitled to €805.00 for the week ending on May 20th and €161 to account for the shortfall in his wages in the week ending on June 3rd, while taking account of what he considers was an overpayment on May 27th. He claims also that he is entitled to €805.00 for each of the four weeks from June 4th until July 1st. He claims that the total amount owed to him in unpaid wages is €4,186. CA-00066242-007: Complaint under the Organisation of Working Time Act 1997 The complainant claims that, from the commencement of his employment in September 2023 until December 31st 2023, he accrued 26 hours’ holidays. He claims that from January 1st until he was dismissed on July 1st 2024, his estimated hours were 730, resulting in accrued holidays of 58 hours (8% of 730 hours). Up to the date of his dismissal, he said that he took 61 hours of holidays, resulting an entitlement to holiday pay for 23 hours (84 – 61) at the date of his dismissal. CA-00066242-008: Complaint under the Organisation of Working Time Act 1997 The complainant claims that, from the date of his commencement with the respondent, he received no additional pay for public holidays. CA-00066242-009: Complaint under the Terms of Employment (Information) Act 1994 The complainant claims that he wasn’t issued with a statement of his terms and conditions of employment. He believes that the respondent’s HR advisors may have sent his contract by mistake to an email address @hotmail.com instead of @gmail.com. CA-00066242-010: Complaint under the Terms of Employment (Information) Act 1994 Also under this heading, the complainant claims that, in the first five days of his employment, he wasn’t issued with a document setting out his core terms and conditions of employment. |
Summary of Respondent’s Case:
CA-00066242-001 – 006: Complaints under the Payment of Wages Act 1991 The respondent’s brief submission states that the complainant was suspended from work on April 22nd 2024 following an “altercation in premises of Brady’s Clockhouse.” The submission states that the complainant did not attend a disciplinary investigation meeting scheduled for May 6th. The complainant claims that he did attend the meeting at 12.00 midday on May 6th in Brady’s Clockhouse and that Mr Ray Walshe adjourned the meeting to allow for the compiling of documents. The respondent’s submission states that, “it was noted to us” that the complainant had taken up a job as a security guard at a premises elsewhere. The respondent goes on to state that the complainant did not turn up for a meeting on May 29th and that his employer understood that that he was on a college placement and not available for work or meetings. A meeting did take place on June 18th however, and, in their submission, the respondent states that the complainant was informed that “he was no longer suspended with pay and should be available for work.” Efforts were made to arrange a disciplinary meeting on June 26th, but the complainant was not available at the time suggested by the respondent. The respondent’s submission states that “That was the end of communications” and the complainant was dismissed on July 1st 2024. CA-00066242-007- 8: Complaints under the Organisation of Working Time Act 1997 It is the respondent’s position that “all holiday and public holiday entitlements were paid.” CA-00066242-009 - 10: Complaints under the Terms of Employment (Information) Act 1994 The respondent’s submission states that the complainant was sent a copy of a statement of his terms and conditions of employment by email on September 29th 2023. A copy of an email dated October 6th 2023 from Mr Ray Walshe was included in the complainant’s documents. This shows that, on that date, Mr Walshe sent the complainant an email to damienmcnelis@hotmail.com, with a statement of his terms and condition of employment, a company policy document and a guide to exceeding customer expectations. In the email, Mr Walshe asked the complainant to sign and return a copy of the statement. The complainant claims that the hotmail address is not his email address and that he did receive the documents. |
Findings and Conclusions:
CA-00066242-001 – 006: Complaints under the Payment of Wages Act 1991 I note from the correspondence submitted by the complainant that, on June 26th 2024, he notified his employer that he was unavailable to attend a meeting during office hours and he suggested meeting on Saturday, June 29th. It appears that no meeting took place after the meeting on June 18th and the complainant was dismissed on July 1st. Based on the payslips provided by the complainant, I have calculated that his average weekly pay from January 1st until he was suspended on April 22nd 2023 was €654.64. Taking account of his statutory sick pay from May 8th until May 14th 2023, I have calculated that, when he was suspended, between April 29th and June 3rd 2023, he was paid an average of €627.00 per week. It is my view that the complainant’s wages during his period of suspension are comparable to the wages he received when he was at work and I am satisfied therefore, that no wages are owed for the period up to June 3rd 2024. The complainant was suspended on April 22nd 2024, pending the outcome of a disciplinary investigation. In the absence of any evidence from the respondent, I must assume that the investigation ended with the decision to dismiss the complainant on July 1st. It follows therefore, that he was suspended until that date. The company’s disciplinary procedure provides that an employee who is suspended pending the outcome of a disciplinary investigation will be suspended on full pay. I am satisfied therefore, that, in contravention of s.5(6) of the Payment of Wages Act 1991, the failure to pay the complainant for the four weeks from June 4th until July 1st 2024 was an illegal deduction from his wages. CA-00066242-007: Complaint under the Organisation of Working Time Act 1997 The payslips included in the complainant’s book of documents for the hearing show that he was paid for 60.5 hours’ holidays in the period from November 8th 2023 (the date from which payslips were included in the submission) until April 19th 2024. I accept the complainant’s assertion that, up until December 31st 2023, he accrued 26 hours’ holidays. Based on his average working week of 27.5 hours, from January 1st until April 22nd 2024, he worked for 385 hours and therefore accrued 31 hours of holidays. Based on his average working week of 27.5 hours, I estimate that, in the 10 weeks that he was suspended from April 22nd until July 1st 2024, he accrued 22 hours of holidays (275 hours x 8%). His total holiday entitlement from the date of his commencement to the date of his dismissal is therefore 79 hours. As he was paid for 60.5 hours, there is a shortfall of 18.5 hours in holiday pay. CA-00066242-008: Complaint under the Organisation of Working Time Act 1997 This is a complaint regarding an entitlement to pay for public holidays. The complainant said that he didn’t generally work on Mondays and six of the ten public holidays fall on a Monday. Pubs don’t open on Christmas Day and many don’t open on St Stephen’s Day. I have decided to assume therefore, that the complainant didn’t work on eight of the ten public holidays. Section 21 of the Organisation of Working Time Act provides that, an employee who doesn’t work on a public holiday is entitled to the benefit of that public holiday in the form of one fifth of a week’s pay. This is also provided for in the complainant’s contract of employment: “Where the public holiday falls on a day, which the employee does not normally work, the public holiday entitlement is pay for one fifth of the normal weekly working hours last worked before the public holiday as long as the employee has worked more than 40 hrs in the preceding 5 weeks.” The respondent’s submission states that the complainant received the benefit of the public holidays. The complainant’s payslip for the week ending on January 5th 2024, shows that he received an additional €60 for December 26th 2023. It is unclear how this €60 was calculated because one fifth of a week’s pay for the previous week is €96.90. There is no reference in this payslip to pay for the public holiday that fell on Christmas day, and, in the absence of any explanation from the respondent, I accept the complainant’s assertion that he did not receive any benefits for the public holidays. These complaints were submitted to the WRC on September 25th 2024 and therefore, the timeframe for which I have jurisdiction to consider a complaint is from March 26th until September 25th 2024. Three public holidays fell during that timeframe before the complainant was dismissed: Easter Monday, April 1st, Monday, May 6th and Monday, June 3rd. The complainant was suspended on April 22nd 2024 and was entitled to be paid his normal wages while he was suspended. I am satisfied therefore, that the complainant is entitled to one fifth of a week’s pay for the three public holidays that fell in the six months prior to these complaints being submitted to the WRC. CA-00066242-009: Complaint under the Terms of Employment (Information) Act 1994 In his book of documents, the complainant submitted a copy of a contract that he received when he requested it after he was suspended on April 22nd 2024. Based on his explanation regarding the respondent’s error in his email address, I have concluded that, as required under s.3 of the Terms of Employment (Information) Act, the statement was not issued to the complainant within one month of the commencement of his employment. CA-00066242-010: Complaint under the Terms of Employment (Information) Act 1994 In contravention of s.3(1A) of this Act, I find that the complainant did not receive a statement of his core terms and conditions of employment within the first five days of his start date. In accordance with section 7(2)(d) of the Terms of Employment (Information) Act, I am required to order the employer to pay compensation of “such an amount (if any) as is just and equitable, having regard to all the circumstances, but not exceeding 4 weeks’ remuneration…” It is my view that the failure of the respondent to issue the complainant with a statement of his terms and conditions of employment resulted from a genuine mistake and the statement was available to him from the date of his commencement, if he had requested it. Taking account of the fact that the complainant received the statement as soon as he requested it, I am satisfied that compensation of one week’s pay for the breaches of s.3 and s.3(1A) is just and equitable. |
Decision:
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.
CA-00066242-001: Complaint under the Payment of Wages Act 1991 I am satisfied that the complainant was paid his wages in the week ending on April 29th 2024 and I decide therefore, that this complaint is not well founded. CA-00066242-002: Complaint under the Payment of Wages Act 1991 I am satisfied that the complainant was paid his wages in the week ending on May 5th 2024 and I decide therefore, that this complaint is not well founded. CA-00066242-003: Complaint under the Payment of Wages Act 1991 I am satisfied that the complainant was paid his wages in the week ending on May 12th 2024 and I decide therefore, that this complaint is not well founded. CA-00066242-004: Complaint under the Payment of Wages Act 1991 I am satisfied that the complainant was paid his wages in the week ending on May 19th 2024 and I decide therefore, that this complaint is not well founded. CA-00066242-005: Complaint under the Payment of Wages Act 1991 I am satisfied that the complainant was paid his wages in the week ending on May 26th 2024 and I decide therefore, that this complaint is not well founded. I am satisfied also that he was paid his wages in the week ending on June 3rd 2024. CA-00066242-006: Complaint under the Payment of Wages Act 1991 I have concluded that there was an illegal deduction from the complainant’s wages in the four weeks ending on July 1st 2024 and I decide therefore, that this complaint is well founded. I direct the respondent to pay the complainant compensation of €2,619, based on four times his average weekly wages of €654.64 in the 14 weeks before he was suspended on April 22nd 2024. CA-00066242-007: Complaint under the Organisation of Working Time Act 1997 I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €425.50, as compensation for annual leave accrued and not taken at the date of his dismissal on July 1st 2024. CA-00066242-008: Complaint under the Organisation of Working Time Act 1997 I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €393.00, equivalent to two fifths of his normal weekly wages of €654.64 CA-00066242-009 & 10: Complaint under the Terms of Employment (Information) Act 1994 I decide that these complaints are well founded and, as compensation for the breaches under s.3 and s.3(1A) of the Terms of Employment (Information) Act 1994, I direct the respondent to pay the complainant compensation of €654.64, equivalent to an average of one week’s pay. The total amount awarded is €4,092.14. As this award is compensation for breaches of statutory rights, in accordance with s.192A of the Taxes Consolidation Act 1997, it is not subject to deductions for tax, PRSI or USC. |
Dated: 08th April 2025.
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Non-payment of wages, holiday pay, public holiday pay, statement of terms and conditions of employment |