ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00055650
Parties:
| Complainant | Respondent |
Parties | Suresh Palikkuzhi | Nila Restaurant Limited (In Liquidation) |
Representatives |
| Michael Kennedy, Liquidator Irish Insolvency Solutions Liquidations |
Complaints:
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-00067698-001 | 27/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00067698-002 | 27/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00067698-003 | 27/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00067698-004 | 27/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00067698-005 | 27/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00067698-006 | 27/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00067698-007 | 27/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00067698-008 | 27/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00067698-009 | 27/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00067698-010 | 27/11/2024 |
Date of Adjudication Hearing: 25/11/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 an employee can present a complaint or complaints of any perceived contravention by the Employer of any of the Acts (Statutes) contained in Schedule 5 of the Workplace Relations Act of 2015. Any such complaint (usually presented in the format of a workplace relations complaint form) is made to the Director General of the WRC. The said Director General can then refer the complaint to the Adjudication services. It is in these circumstances that this matter has come before me - an Adjudication Officer engaged by the Adjudication division of the WRC - to make all relevant inquiries into the complaint or complaints made. Where appropriate, I hear the parties’ oral evidence, and I can give consideration to any supporting evidence provided by witnesses or relevant documentation.
In this instance, the Complainant has made seven complaints of the Employer having contravened Acts contained in Schedule 5 above referred to. This includes six alleged contraventions of the Organisation of Working Time Act 1997. These include:
A contravention under Section 12 of the Act which sets out those circumstances which give rise to Rests and intervals at work so that an employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. Also that an employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes.
A contravention under Section 13 of the Act which concerns weekly rest periods and which, in general terms, directs that an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours.
A contravention of Section 14 of the Organisation of Working Time Act 1997 which provides for compensation for working on a Sunday and provides for a number of ways in which the compensation can be calculated including the payment of an allowance, an increased rate of pay or paid time in lieu.
A contravention under Section 15 of the Organisation of Working Time Act, 1997 which concerns the limit on weekly working hours. In general terms (and subject to exceptions), the employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed either four months or six months — whichever is relevant.
A contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 hours or more.
1/3 of a working week in each month that the Employee has worked in excess of 177 hours.
8% of the hours worked up to 4 working weeks
A contravention under Section 21of the Act which concerns entitlement in respect of public holidays. This provides that an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
(a) a paid day off on that day,
(b) a paid day off within a month of that day,
(c) an additional day of annual leave,
(d) an additional day’s pay:
Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.
It is noted that pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Complainant has also brought a single complaint of a contravention of the Payment of Wages Act, 1991 which is also an Act contained in Schedule 5 of the Workplace Relations Act of 2015. This amounts to a complaint of acontravention of Section 5 of the Payment of Wages Act, 1991, that is, a complaint of an unlawful deduction having been made from the Employee’s wage. Section 5 of the Payment of Wages Act provides that an employer must pay wages that are properly payable to an employee. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
It is critically important in the context of the within workplace relations complaint form that I, as the assigned Adjudication Officer must be aware of applicable time limits. In this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to a said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.
Section 41 (8) specifies that the Adjudication Officer may entertain a complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
In effect, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act). I can extend that period to twelve months if a Complainant can demonstrate that that the failure to present the complaint within the first six-month period (after the contravention) was due to reasonable cause.
The Labour Court, in Cementation Skanska v Carroll DWT0338 28/10/2003, considered the issue of “reasonable cause” in the context of a similar provision to S.41(8) of the WRA and contained (as it happens) in the Organisation of Working Time Act, 1997 Section 27(5) which stated:
“Not withstanding subsection (4) a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause”
In considering the phrase reasonable cause, the Labour 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 and excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not 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.”
In addition to the foregoing seven complaints, the Complainant has made two complaints in accordance with Section 77 of the Employment Equality Acts, 1998 (as amended). In particular the Complainant (as set out in his Workplace Relations Complaint Form) seeks redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably than another person (or persons) has or would have been treated in a comparable situation on the grounds of his Race as detailed in Section is Section 6 of the Employment Equality Act 1998 where it states :-
Sub Section 6 (1) For the purpose of this Act…discrimination shall be taken to occur where…
- (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …...(the “discriminatory grounds”).
Section 6 (2) As between any 2 persons the discriminatory grounds .. are…
(h) That they are of a different race, colour, nationality or ethnic or national origins (..the ground of race”),
Again, it is critically important to note that an Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. Section 77(5) of the Employment Equality Act states:-
“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”
In limited circumstances, the six-month period can be extended to 12 months on application by the complainant who can show the failure to present within time was due to reasonable cause (Section 77(5)(b)).
Lastly, the Complainant has made a claim for statutory Redundancy. Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer and whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. A Redundancy payment is generally tax free.
A complainant must be able to show a minimum two years (104 weeks) of service in the employment. The Complainant herein qualifies.
Responsibility to pay Statutory Redundancy rests with the Employer. Where an employer can prove to the satisfaction of the Department of Employment Affairs and Social Protection that it is unable to pay Statutory Redundancy to an eligible applicant, the Department will make payments directly to that employee and may seek to recover as against the Employer independently. Such claims must be submitted on form RP50 which may be signed by both employer and employee (to be accompanied with a Statement of Affairs).
In the event that an Employer refuses to engage with an employee in this way, it is open to the employee to bring an appropriate complaint before the Workplace Relations Commission as set out in Section 38(15) of the 1967 Act.
The Employee must have made a claim for a redundancy payment by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where the employee can demonstrate to the satisfaction of the Adjudication Officer that the failure to bring the claim in the earlier time period was due to reasonable cause (24(2A)).
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.
In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021), I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.
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Summary of Complainant’s Case:
The Complainant was not represented and made his own case. The Complainant gave a detailed account of his employment with the Respondent catering business. The Complainant relied on the submission outlined in his workplace relations complaint form and it is noted that the Complainant provided me with additional relevant documentation in and around March of 2025. This included a contract of Employment. Additional documents provided in November of 2025 include a chronology of events prepared by the Complainant. The Complainant alleges that he is owed up to twenty weeks of wages which were payable in respect of his employment as a Business Analyst. The Complainant is also making claims in respect of how the working time was being organised in this workplace. The Complainant says he was discriminated against on the grounds of his race. These allegations were vague and seemed somewhat historic. Lastly, the Complainant is looking for Statutory Redundancy in circumstances where the Employer has gone into liquidation. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent did not attend. It is noted that on or about the 30th of August 2024 the company herein went into liquidation and that a Mr. Michael Kennedy, Liquidator with Irish Insolvency Solutions has been appointed official liquidator. I understand that the Liquidator has talked directly with the Complainant. The Liquidator has not communicated with the WRC. This is his prerogative though it should be noted that the WRC did try and communicate with the Liquidator by email in and around March of 2025. I am satisfied that Mr Michael Kennedy was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 26th of September 2025. |
Findings and Conclusions:
I have carefully considered the evidence adduced by the Complainant in the course of this hearing. The Complainant came to work as a business manager with the Respondent’s catering business in and around 2021. The status of this initial period of employment is not clear to me as the Complainant only had a work permit from 2022. I cannot confirm that the Complainant was making social insurance contributions at that time. I am satisfied that the Complainant ultimately was on a fixed salary of €35,000.00 PA. This gave a gross weekly salary of €674.00. The Complainant says he worked very hard and worked significantly more hours than he wanted to. He had few breaks and irregular time off for annual leave and public holidays. For reasons not explained to me the Complainant got into a cycle of working without getting a weekly wage. It seems that the Employer was in financial difficulty and kept promising the Complainant that he would get paid. I accept that the employe and the Employee knew that eh business was in severe trouble. I note from his chronology of events that by June of 2023 the Complainant had not been paid for thirteen weeks of work. The Complainant gave evidence that by the end of the year (2023), the Complainant was owed twenty weeks of pay though he was not specific as to which specific weeks were not paid. It also seems that whilst the Employer was generating wage slips, he was not actually paying the money into the Complainant’s bank account. Obviously, this situation was intolerable for the Complainant. He was locked into a situation where he was owed thousands of euro, and could not walk away for fear of never seeing the money that he was owed. The Complainant says he survived on the goodwill of family and friends. The Complainant opted not to do anything for fear, he says, of maybe having his work permit rescinded. The Complainant went on an extended break. Although never described as such the situation had all the elements of a lay off – though without the Complainant being able to recover any social welfare. He described this period of leave as a combination of both unpaid parental leave and seemingly unpaid annual leave. The Complainant confirmed he returned to India for three months from February to April of 2024. By May of 2024 the Complainant had not actually been working with the Respondent for about six months. He was still regarded as an Employee, and his service was accruing. The Complainant fervently hoped that the backpay owed to him would be forthcoming and that his employer would soon have the funds to bring the Complainant back to the workplace. The Complainant gave specific evidence that the Employer asked him to come into the workplace on a Monday in May of 2024. The Complainant could not recall which Monday. The Complainant gave evidence that when he got to the workplace it was closed, and he was advised by the owner that the company was in the process of going into liquidation. On or about the 30th of August 2024 the Complainant was notified that the Company had gone into liquidation with a Liquidator being appointed. Three months later on, the 27th of November 2024 the Complainant lodged his workplace relations complaint form. I explained to the Complainant that an employee who perceives that there are irregularities in the workplace which might amount to a Statutory contravention must bring such matters before the WRC as soon as might be practicable. In most instances, an employee only has six months to draw any statutory contravention to the attention of the WRC. There is good reason for imposing time limits for the commencement of claims. It encourages timely resolution, it creates legal certainty and prevents stale claims based on unreliable evidence being brought forward long after relevant events. This is particularly significant here, as the Complainant has brought his complaint to the WRC at the end of November 2024, meaning I can only look at the period of time between the 28th of May 2024 and the 27th of November 2024. This is the cognizable period. The Complainant was simply not in the workplace during this period of time. There was no working time to take into consideration and there was no salary payable. It is also noted that there were no acts of discrimination being perpetrated against the Complainant in his employment. The Complainant has not been able to show that there are reasons which both explain any delay and afford an excuse for the delay. In short he did not present evidence showing that the failure to present the complaint within that period was due to reasonable cause there is In any event, even if the Complainant had demonstrated reasonable cause I am not convinced that an extension of time would improve the Complainant’s outcome given the factual matrix already narrated. I am satisfied that I do not have the jurisdiction as the complaint were presented out of time. It is most regrettable that the Complainant did not invoke his Statutory entitlements in good time. He has missed his opportunity before the WRC. He may still have recourse elsewhere. I am however satisfied that the Complainant’s job was made redundant and I accept that the Complainant was entitled to be paid redundancy pursuant to the Redundancy Payments Acts 1967-2014. The Complainant was made aware of the fact that any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 to 1966. A ceiling of €600.00 applies. I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence: The employment started: 17th October 2021 The employment ended: 30th of August 2024 Gross weekly wage : €674.00
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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.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00067698-001 - Concerning the unlawful withholding of wages. This claim is not well founded and is out of time
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00067698-002 – Concerning weekly rest periods. This claim is not well founded and out of time.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00067698-003 - concerning breaks. This claim is not well founded and out of time.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00067698-004 - Concerning excessive hours. This claim is not well founded and out of time.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00067698-005 –Concerning workplace discrimination. This claim is not well founded and out of time.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00067698-006 - Concerning workplace discrimination. This claim is not well founded and out of time.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00067698-007 - I am satisfied that the Complainant’s job was made redundant and I accept that the Complainant was entitled to be paid redundancy pursuant to the Redundancy Payments Acts 1967-2014. The Complainant was made aware of the fact that any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 to 1966. A ceiling of €600.00 applies. I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence: The employment started: 17th October 2021 The employment ended: 30th of August 2024 Gross weekly wage : €674.00
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00067698-008 Concerning Sunday working. This claim is not well founded and out of time.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00067698-009 – Concerning holiday pay. This claim is not well founded and out of time.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00067698-010 – Concerning public holidays. This claim is not well founded and out of time.
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Dated: 08 – December - 2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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