Complainant

Respondent

Parties

Aiden  O'Keefe

Brewery Bar Sligo Brewery Bar

Representatives

Complainant

Darrelle Conway solicitor

Catherine McCormack BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00066563-001

09/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00066563-002

09/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00066563-003

09/10/2024

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

CA-00066563-009

09/10/2024

The complainant, Mr Aiden O’Keefe, worked as security for the respondent, The Brewery Bar, Sligo.  The bar closes for the summer as its business is largely driven by the nearby third level college.  Mr O’Keefe alleges unfair dismissal as he was not taken back at the commencement of the 2024 academic term as had happened previously.  He also claims that he was not always paid on the correct dates and that he did not receive a copy of his Terms of Employment.  The respondent claims that his contract ended in May 2024 and that the respondent was under no obligation to re-employ him.  Furthermore, the respondent alleges that his performance was unsatisfactory. 

Evidence was given by the complainant, Mr O’Keefe and by Mr Paul Mulloney, Bar Manager, for the respondent.  Evidence was given under oath/affirmation and subject to cross examination. All submissions made by the parties, including post hearing submissions, were considered by me in reaching my decision.

The complainant was employed by the Respondent in the role of security staff in the Brewery Bar, Sligo.  He did not receive a copy of his Terms of Employment and was not informed of changes to his Terms of Employment. He signed a contract in September 2023 but, despite requests, was not furnished with a copy.  He did not raise this issue with the respondent because he did not get any assistance with other issues raised.

The complainant was unfairly dismissed as he was not offered his position back when the bar reopened in September 2024 at the commencement of the academic year in the nearby third level college.  The bar closed each summer when the students were away.  The complainant was given no explanation why he was not brought back.

The complainant was not paid on time on several occasions and left short on occasions as follows;

26th February 2024 wages due on Friday were not received until Monday

2nd February 2024 – left short

26th January 2024 – left short

9th February  2024– not on time

16th February 2024 – left short

1st March 2024 – left short

22nd March 2024 – left short

He did not get payslips on time.  He was on occasion sent home early and did not receive the minimum 4 hours pay. 

The Complainant was first employed by the Respondent in the role of security on 2 March 2023 ('the first contract'), which contract ended on the 18 May 2023, being the date on which the premises ceased operating at the conclusion of the 2023/2024 academic year.

The Complainant entered into a second contract of employment with the Respondent in the role of security on 28 September 2023 ('the second contract'), which contract ended on 23 May 2024, being the date on which the premises ceased operating at the conclusion of the 2023/2024 academic year.

The Complainant was not re-employed by the Respondent at the commencement of the 2024/2025 academic year.

The Complainant did not, at any time, make any complaint whether formally or informally to the Respondent, its servants or agents, in relation to the matters in respect of which he now complains.

On 9 October 2024, the Complainant referred his dispute to the Director General.

1  PRELIMINARY ISSUE: THE COMPLAINTS ARISING UNDER THE TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 ARE OUT OF TIME.

It is submitted that both complaints for alleged breaches of the Terms of Employment (Information) Act 1994 ('the 1994 Act') in the within case are out of time.

Section 7 of the 1994 Act permits complaints to be referred to the Workplace Relations Commission in accordance with section 41 of the Workplace Relations Act 2015 ('the 2015 Act'). Section 41 (6) of the 2015 Act provides:

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.

Section 41 (8) of the 2015 Act provides:

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.

In light of the foregoing the Respondent submits:

The alleged contravention of the 1994 Act was 28 September 2023. The said contract was not revised or updated in the intervening period between the date on which the contract was entered into and the date on which the employment ceased. The complaint was received by the Director General on 9 October 2023. The Complainant did not refer his complaint for approximately 12 months and 11 days;

There is no statutory enactment which allows for the extension of time in relation to the 1994 Act other than that provided for within section 41 (8) of the 2015 Act, which, even if applied, would render the complaint out of time. As such, the Adjudication Officer does not have jurisdiction to take any action on foot of the complaints.

The Complainant's contract of employment (which was signed by the Complainant on 28 September 2023) was not revised or updated between that date and 23 May 2024, being the date on which the Complainant's employment ceased.

2  PRELIMINARY ISSUE: THE PROVISIONS OF THE UNFAIR DISMISSALS ACT, 1977 DO NOT APPLY DUE TO LACK OF CONTINUITY OF SERVICE

 It is submitted that the provisions of the Unfair Dismissals Act 1977 ('the 1977 Act') do not apply in circumstances where the Complainant did not have at least 12 months continuous service. As such, the Adjudication Officer does not have jurisdiction to embark upon the hearing of this matter.

Section 2(l)(a) of the 1977 Act, as amended, provides:

Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to ...

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him.

There is no statutory enactment which allows for the two contracts of employment to be viewed as one for the purposes of calculation of time of service where an employer acted bona fide in ceasing the first contract.

In light of the foregoing, the Respondent submits:

The Complainant's second contract of employment with the Respondent commenced on 21 September 2023, and ceased on or about 23 May 2024. The Complainant was employed for approximately 7 months and 25 days; The Complainant did not have 12 months of continuous service at the time his employment ceased; The first contract ceased on the basis that the premises ceased operation outside of the 2022/2023 academic term. It is therefore submitted that both contracts are not collectively calculable for the purposes of calculating time of service;

As such, the Adjudication Officer does not have jurisdiction to take any action on foot of the complaints.

3  PRELIMINARY ISSUE: THE PAYMENT OF WAGES ACT 1991

Section 6 of the Payment of Wages Act 1991, as amended, permits complaints to be referred to the Workplace Relations Commission in accordance with section 41 of the Workplace Relations Act 2015 ('the 2015 Act') in respect of alleged contraventions under the scheduled sections of the 1991 Act. Section 41 (6) of the 2015 Act provides:

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.

Section 41 (8) of the 2015 Act provides:

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.

In light of the foregoing the Respondent submits:

The alleged contraventions of the 1991 Act are on dates between February 2024 and March 2024, as per the Complainant's evidence.  The complaint was received by the Director General on 9 October 2024 and did not mention the dates. The Complainant did not formally progress that complaint until 6 May 2025, being the date of the hearing herein, some approximately 14 to 15 months after the alleged contraventions.

There is no statutory enactment which allows for the extension of time in relation to the 1991 Act other than that provided for within section 41 (8) of the 2015 Act, which, even if applied, would render the complaint out of time.

As such, the Adjudication Officer does not have jurisdiction to take any action on foot of the complaints.

CA-00066563-003: COMPLAINT ARISING UNDER THE UNFAIR DISMISSALS ACT, 1977 (Substantive issue)

The Complainant's complaint is effectively based upon the fact that he was not offered his position back at the brewery bar Sligo when it reopened for the college year and wasn’t given any explanation.

On the basis of the contents of the complaint form submitted by the Complainant alone, there is no basis for the complaint herein. The Complainant was at all times aware that the Respondent's premises does not operate during the summer term, being outside the academic term.

The Complainant was not dismissed unfairly. The cessation of the Complainant's employment arose directly as a result of the premises' annual closure. Without prejudice to the foregoing, on 6 October 2023, the Complainant sent a long text message to Paul Mullaney, Manager of the Respondent's premises, which touched upon his own health. The Respondent was concerned with the Complainant's ability and capability to carry out and conduct his duties during the course of the Complainant's employment.

The Complainant was unable to attend work on a number of occasions for various reasons, as evidenced in text messages. For example, the Complainant was unable to attend work on 5 December 2023, despite being scheduled to work at 8.30pm that evening. The Complainant telephoned Mr. Mullaney, some five hours prior to his start time, to notify him that he was not available.

In light of the Complainant's competence, performance and general conduct, the cessation of the Complainant's employment with the Respondent was not unfair.

The Respondent was under no obligation to re-employ the Complainant on the commencement of the 2024/2025 academic year. There is no basis for a complaint under the 1977 Act. The complaint must therefore fail.

Preliminary issue 1.  Terms of employment

Section 7 of the Terms of Employment (Information) Act, 1994 permits complaints to be referred to the Workplace Relations Commission in accordance with section 41 of the Workplace Relations Act 2015.  Section 41 (6) of the 2015 Act provides:

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.

As both of the complaints made by the complainant under this Act were outside of the time limits specified in the Act I do not have jurisdiction to hear them. No evidence was put forward to support an extension of this time limit.

Preliminary Issue 2.  Unfair dismissal

The respondent has argued that the complainant confirmed his ‘dismissal’ in 2023 and that he was re-employed in September 2023 and again, similarly, was’ dismissed’ in 2024 at the commencement of the academic break in the nearby third level college. The respondent’s view is that these are separate contracts and therefore that the complainant does not meet the 12 month service requirement under the Unfair Dismissals Act.   However, it is clear that the complainant, who was not represented, was not using the word ‘dismissal’ in the legal sense, and that he had an expectation to be brought back at the commencement of the academic year.  I note that his original contract for the 2023 academic year made no mention of being fixed term in nature and would properly be construed therefore as a contract of indefinite duration.  The contract did include a provision for lay off and I think this is a more accurate description of what actually took place.  I therefore accept that the complainant had continuity of employment exceeding the minimum 12 month period specified in the Unfair Dismissals Act and therefore is entitled to the protection of that Act.

Preliminary issue 3.  Payment of Wages

The complainant in his submission to the WRC referred to issues regarding payment of wages and therefore these must be considered by me.  No specifics were given until the hearing when it was confirmed that these allegations related to incidents between February and March 2024.  Section 6 of the Payment of Wages Act 1991, as amended, permits complaints to be referred to the Workplace Relations Commission in accordance with section 41 of the Workplace Relations Act 2015 in respect of alleged contraventions under the scheduled sections of the 1991 Act. Section 41 (6) of the 2015 Act provides:

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.

The complainant’s submission to the WRC was first received on 9th October 2024.  The complaints relating to payment of wages all took place more than 6 months prior to that date and therefore I do not have jurisdiction to hear them. No evidence was put forward to support an extension of this time limit.

CA-00066563-003 Unfair Dismissal

The respondent has argued that the complainant was employed on separate contracts and that therefore he did not meet the minimum of 12 month’s service under the Act.  However, as stated in my preliminary finding on this issue, a more accurate interpretation of his employment status was that he was on a contract of indefinite duration and was laid off during the summer months.  As such therefore he has the protection of the Unfair Dismissals Act and the onus is on the respondent to demonstrate that the dismissal was fair.

In evidence the Bar Manager stated that he was unhappy with some of the complainant’s performance and called him in and gave him a warning.  The Manager stated that he had concerns about the complainant’s ability to do the job due to health issues at the time.

The Manager confirmed that no disciplinary procedures had applied to this warning and secondly that no medical advice had been received in relation to the complainant’s alleged health issues.

The warning issued without use of disciplinary procedures is unfair.  The consequent dismissal is unfair. 

The redress in respect of unfair dismissal is contained in Section 7 of the Act which states;

c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

There is an obligation on the employee to mitigate his losses and to demonstrate that he has made efforts to do so.  In the absence of any loss the Act provides in Section 7(c)(ii) (as amended)as follows:

if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

At the hearing I requested the complainant to forward me detail of his losses and his attempts at mitigation.  However, his subsequent email provided no such information and therefore I am restricted to redress in the amount of 4 weeks remuneration.  I note the respondent calculated his weekly wage based on the number of weeks between 18 September 2022 and 24th May 2024 (87 weeks) and that this came to a weekly figure of €120.  However, when the lay off period in 2023 is excluded in determining his weekly wage the figure is €144.  I therefore conclude that the redress should be 4 weeks pay at €144 pw totalling €576.

CA-00066563-001.  I do not have jurisdiction to hear this complaint and therefore the complaint is not well-founded.

CA-00066563-002.   I do not have jurisdiction to hear this complaint and therefore the complaint is not well-founded.

CA-00066563-003  The complainant was unfairly dismissed and I order the respondent to pay him €576 in compensation.

 CA-00066563-009 I do not have jurisdiction to hear this complaint and therefore the complaint is not well-founded.

 Time limits. Unfair dismissal and continuous service