ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00056215
Parties:
| Complainant | Respondent |
Parties | Mrs Chui Mui Lim | Qing Fu He t/a Eskimo Pizza Greystones |
Representatives | Self-represented | Represented by Accountant |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00068382-002 | 01/01/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00068382-003 | 01/01/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00068382-005 | 01/01/2025 |
Date of Adjudication Hearing: 30/09/2025
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,Section 24 of the National Minimum Wage Act 2000 and Section 6 of the Payment of Wages Act 1991, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complaints are that the Complainant was unfairly dismissed without due process, that she was not paid minimum wage during her employment, and that she was not paid wages properly due for the number of hours she worked and the rate of pay.
Summary of Complainant’s Case:
The Complainant was told by the proprietor’s wife Ms L on 3 December 2024 that she was not needed as there too many people and she was not to come in from 8 December 2024. She worked 9 hours per day for 6 days per week and was paid €500 cash. She calculated that the Respondent owed her €15,144 taking into account minimum wage and overtime worked. The Respondent provided her with accommodation and the dismissal left her with no accommodation. In any event, accommodation was not free as she had to pay electricity and gas bills. The Complainant has not secured alternative employment and said that it is hard to do so as she has no English.
Summary of Respondent’s Case:
The Respondent argues that the Complainant was not dismissed. Various reasons were given by the proprietor’s wife for the situation. It was stated that due to the Complainant’s daughter having a baby, the Complainant could not guarantee what hours she would work for the Respondent. The Complainant had returned from a visit home in October and was in a bad mood. She explained that her daughter was having a baby. During November Ms L kept asking the Complainant what hours she would work during December as this is a busy time but she could not get an answer. Ms L had to take on 2 new people in case the Complainant and her husband left. As they needed to be trained she told the Complainant and her husband not to come in for a week. Respondent position is that the Complainant was not dismissed and she was provided with food (two meals per day) and accommodation. Accommodation costs were paid for the Complainant in the form of €600 per month rent paid by the Respondent.
Findings and Conclusions:
CA-00068382-002 Unfair Dismissals Act 1977
I note the Respondent’s position that the Complainant was not dismissed. I note the absence of any evidence that the Complainant resigned her job, there is no note of resignation. I note the various scenarios put forward by Ms L, such as the unwillingness of the Complainant to confirm her intention to work during December, and she had to take on 2 new staff “in case they left”. I find that by requiring the Complainant not to come to work, the Respondent effectively dismissed the Complainant. As no due process was carried out, such as any formal meeting to allow the Complainant respond, I find the Complainant was unfairly dismissed. In relation to remedy, I find compensation to be the appropriate remedy as re-instatement and re-engagement are not appropriate given the breakdown in the employment relationship. I note there was no mitigation of loss by the Complainant and I award her the sum of €2,000 compensation.
CA-00068382-003 National Minimum Wage Act 2000
Section 24 (2) of the Act provides:
The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee’s entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015
(a) unless the employee—
(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or
(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,
and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,
or
(b) where, in respect of the same alleged under-payment, the employer is or has been—
(i) the subject of investigation by an inspector under section 33 or 34, or
(ii) prosecuted for an offence under section 35.
As the Complainant in this case has not obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, I have no jurisdiction in this case. The complaint is not well founded.
CA-00068382-005 Payment of Wages Act 1991
The Complainant submitted calculations based on minimum wage and overtime. The Payment of Wages Act 1991 provides that an employer shall not make a deduction from the employee’s wage in respect of
(a) any act or omission of the employee, or |
(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, |
unless— |
(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and |
(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and |
(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with— |
(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof, |
(II) in any other case, notice in writing of the existence and effect of the term, |
And |
(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and |
(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and |
(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and |
(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services. |
(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection. |
(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee. |
In this case, there were no deductions from the wages of the Complainant.
Section 5 (6) of the Act provides
(6) Where— |
( a ) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or |
( b ) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, |
then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. |
In this case, I note the Complainant bases the calculation of wages ‘properly payable’ on the minimum wage rate at the time and for overtime. I note the Complainant’s food and accommodation costs were paid by the Respondent. I note there is no automatic entitlement to overtime. In the circumstances it is not possible to declare the Complainant’s calculations valid.
I find the complaint to be not well founded.
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-00068382-002 Unfair Dismissals Act 1977
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Based on the findings and reasons above, I have decided that the complaint is well founded and I award the Complainant the sum of €2,000 compensation.
CA-00068382-003 National Minimum Wage Act 2000
Section 24 of the National Minimum Wage Act 2000 requires that I make a decision in relation to the claim / dispute over minimum wage.
Based on the findings and reasons above, I have decided that I have no jurisdiction in this case. The complaint is not well founded.
CA-00068382-005 Payment of Wages Act 1991
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the provisions of that Act.
Based on the findings and reasons above, I have decided that the complaint is not well founded.
Dated: 05/12/2025
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Unfair dismissal, Minimum wage, Payment of Wages |