Complainant

Respondent

Parties

Sarah (Jackson) Butler

Dining Experiences Ltd t/a Karen’s Diner

Representatives

Self-represented

 None in attendance

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-00066501-001

07/10/2024

The complainant was employed as floor staff at Karen’s Diner from 29 January 2024 until the termination of their employment on 27 March 2024.

The complaint referred to the Commission relates to non-payment of electronic tips during the period of employment and non-payment of cash tips in the last week of employment. 

The complainant was employed as floor staff at Karen’s Diner for approximately 2 months. 

Electronic tips for the whole period of employment were withheld and not distributed.

The complainant did not receive cash tips from the last week of employment.

In relation to the delay in referring this complaint, a collective case was initially referred to the Commission and the complainant only became aware in early October 2024 of the need to submit an individual complaint.  

The complainant was regularly told by the respondent that they would receive electronic tips, but this never occurred.

The respondent did not attend the hearing and did not avail of the opportunity to be heard in relation to this case.

The complainant was employed by the respondent from 29 January 2024 until informed on 27 March 2024 that their employment was terminated.  The complainant was asked to sign a statement of terms of employment the week prior to their dismissal.  The statement details Dining Experiences Ltd t/a Karen’s Diner (the “respondent”) as the complainant’s employer and provides the place of work address as the address for the respondent entity.

The complainant referred a complaint to the Commission under the Payment of Wages Act 1991, as amended, (the “1991 Act”) concerning non-payment of electronic tips for the full period of employment and cash tips from the complainant’s last week of employment. 

The complainant’s uncontested evidence was of electronic tips received by the employer, to be distributed amongst the 12 employees in employment at the time, but which distribution never occurred.  Documentary evidence of communications between the complainant and management in May 2024 demonstrated the complainant and colleagues querying when electronic tips would be received, and management acknowledging delays with the processing of service charges and advising that all outstanding monies would be paid once a system was in place.

The precise amount received by the respondent in electronic tips for the relevant period is unknown to the complainant. 

The Law

The Payment of Wages (Amendment) (Tips and Gratuities) Act 2022 amended the 1991 Act to provide for further protection for employees in relation to the payment of wages by making specific provision for tip or gratuity payments.  

Section 4B of the 1991 Act requires a prescribed employer to distribute to their employees any tips or gratuities received by the employer by an electronic mode of payment in a manner that is fair in the circumstances and in accordance with the Act.  A service charge or any mandatory charge imposed on a customer leading them to believe that it will be distributed to employees, regardless of how it is paid, is treated under the 1991 Act as a tip or gratuity received by an electronic mode of payment.  Section 4B(2) prohibits an employer from retaining any share of tips or gratuities received by it by an electronic mode of payment, save for in the circumstances set out in subsection (3).

Section 4B of the 1991 Act applied to the respondent in this case.  

Section 4C of the 1991 Act addresses deductions from wages in respect of tips or gratuities as follows:-

“An employer to which this section applies shall not-

(a)    without prejudice to the generality of section 5(1), make a deduction from an employee’s wages in respect of tips or gratuities made to, or left for, an employee, or

(b)    make a deduction from tips or gratuities to be distributed, in accordance with section 4B, to an employee, other than-

(i)                  as required by or under this Act, by any other statute or by any instrument made under any statute, or

(ii)                to the extent as is fair and reasonable in order to meet costs directly arising from paying tips or gratuities by means of electronic modes of payment.”

A deficiency in the amount of wages, or non-payment of wages, properly payable to an employee on any occasion are treated as deductions under section 5(6) of the 1991 Act unless attributable to an error of computation. 

Preliminary issue

There are time limits applicable to the presentation of complaints under the 1991 Act.

The relevant provisions are in section 41 of the Workplace Relations Act 2015 (the “2015 Act”) which provides as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(7) …

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The complaint presented for adjudication was presented on 7 October 2024. 

I understand from information provided by the complainant that a collective complaint was initially referred to the Commission for inspection, and that the complainant was made aware on 3 October 2024 of a limitation on the timeframe for referral of a complaint for adjudication. 

The functions of inspection and adjudication are separate and distinct, and a collective complaint referred for inspection does not constitute a complaint presented for adjudication in accordance with section 41 of the 2015 Act. 

The complaint of non-payment of electronic tips from January/February 2024 has been presented for adjudication outside the six-month period set out in section 41(6) of the 2015 Act, which time runs from the date of contravention to which the complaint relates.

The established test for reasonable cause for the purpose of granting an extension of time is that formulated by the Labour Court in Cementation Skanska v Carroll DWT0338 where the Court stated:-

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.  The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.  In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.  The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account.  A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.  Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.  Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

It is clear that the onus is on the complainant to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the delay. 

The complainant submitted reasonable cause to extend the 6-month period by reference to the collective complaint, referred by the complainant and her work colleagues to the Commission, and it not being until the beginning of October 2024 that the complainant became aware of the need to lodge an individual complaint for adjudication and of a 6-month time limit.

I am not satisfied the failure to present the complaint for adjudication within time was due to reasonable cause for the following reasons.  The Commission’s website provides comprehensive information to persons on how to make a complaint along with the resolution options and services available for dealing with complaints, including information on inspection and adjudication services.   There is also an information line operated by the Commission for service users or prospective service users.  The complainant was in possession of the relevant facts and had access to information to submit her complaint for adjudication within the six-month period.  The complainant not knowing of the statutory timeframe for presentation of a complaint cannot be accepted as excusing a failure to comply with same.  

I do however find that the complaint of non-payment of cash tips in respect of the complainant’s last week of work has been presented within the statutory timeframe set out in section 41(6) of the 2015 Act in circumstances where the complainant received her final pay from employment by electronic funds transfer on 8 April 2024. 

The statement of terms of employment provided the following in relation to tips or gratuities:-

“In our Company, you are able to enjoy the opportunity to obtain any tips/gratuities and service charges received by cash or through electronic modes of payment from customers.  You are required to inform management of any tips/gratuities received during the shift.  All tips/gratuities and service charges received throughout a shift will be collected and shared in a fair and equitable manner as agreed with the employees/equally amongst all working staff.”

The complainant’s uncontested evidence was of receiving €80 to €100 per week in cash tips and of non-payment of cash tips in respect of the last week of employment.  The last payslip received by the complainant detailed a nil amount for tips. 

I find that the non-payment by the respondent of cash tips to the complainant on 8 April 2025 constitutes a deduction from the complainant’s wages in respect of tips or gratuities in contravention of section 4C of the 1991 Act.   

I therefore decide that the complaint is in part well founded and direct, in accordance with section 6 of the 1991 Act, the respondent to pay to the complainant compensation of €200.00.  The level of compensation awarded in this case is limited by the restriction on the compensation amount in section 6(1) of the 1991 Act.  The compensation amount is calculated by reference to section 6(1)(b) and the amount of tips or gratuities that would have been paid in the relevant week if deduction had not been made, which is based on the complainant’s uncontested evidence. 

My decision is that the complaint is in part well founded and I direct that the respondent pay compensation to the complainant in the amount of €200.00.

Tips or gratuities – Deductions