ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00054483
Parties:
| Complainant | Respondent |
Parties | Daniela Bantus | Somerset Tavern Limited Trading as the DL Restaurant |
Representatives |
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Complaints:
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-00066350-001 | 29/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977 | CA-00066350-003 | 29/09/2024 |
Complaint seeking adjudication under Section 6 of the Payment of Wages Act, 1991 | CA-00066350-004 | 29/09/2024 |
Complaint seeking adjudication under Section 6 of the Payment of Wages Act, 1991 | CA-00066350-005 | 29/09/2024 |
Date of Adjudication Hearing: 21/05/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation made by an employee of a complaint of a contravention - by an employer - of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 (or such other Act as might be referred to in the 2015 Act), to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute.
I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment.
The Act also provides that an employer must notify the Employee of any changes in the particulars already detailed in the Statement of Terms. This is set out in Section 5 of the Terms of Employment (Information) Act 1994 which puts the onus on an employer to notify the employee in writing of the nature and date of change in any of the particulars of the statement as provided by the Employer. The obligation does not extend to a change occurring in provision of statutes and instruments made under statute.
This Terms of Employment (Information) Act, 1994 implements an EU Directive and applies to all persons working under a Contract of Employment or apprenticeship (whether on a fulltime or part time basis). It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said Statement of Terms.
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
In addition to the above I have allowed the Complainant to amend her Workplace Relations Complaint Form so as to bring a claim under the Payment of Wages Act. I am satisfied that the narrative set out in the complaint form clearly disclosed the existence of a Payment of Wages claims which would have been clearly understood by the Respondent herein on receiving the within complaint form.
The Complainant had outlined a further complaint of a contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015. Following the said referral,it is incumbent on the assigned Adjudicator to make all relevant enquiries into the complaint. This will include hearing oral evidence, considering submissions made and receiving other relevant evidence.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention 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. 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.
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 29th of September 2024 was submitted within the time allowed.
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. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.
The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 29th of September 2024.
At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of all the evidence and submissions that I have considered. Any matter not specifically addressed is deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a
“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”. |
Summary of Complainant’s Case:
The Complainant represented herself. She gave Affirmation to tell the truth. She relied on the narrative set out in her complaint form which read as follows: I was a manager of the service at The DL restaurant. Everything started on 28th June when the wages were delayed until 1st July, but sometimes delays happen, and we had confirmation from the company manager (Cara), so I understood the situation (as a staff member). On 12th July, there was another delay until 15th, and that day they started to pay from a different account and every week with a delay of 3 days. I have a full-time contract, but they have started to keep the restaurant open for only 3 days a week from 5 p.m. We complained to them about the hours, and their answer was, "If you don't like it, you can go." All the staff and I started to ask about how many hours of holidays we had, and her (the manager of the company, Cara) answer was so vague without any confirmed annual leave information. I used my holiday to sort out my documents, but as of today, I am unsure if I was paid for all my accrued holiday hours. On 17th August , I submitted my formal resignation (with one month's notice) for personal reasons. In the following weeks, all the staff submitted their letters of resignation as well for a different personal reason. On the 3rd of September, they decided to close the restaurant without formal notice and without paying the holidays of many staff members (already have one report at nr.CA-00065104 with subsequent reports from the staff to follow). They did this without providing work, although we did not finish our month's notice. We decided to send an email with a friendly and formal request to resolve the situation, but her reply came via WhatsApp. The reason given was that the staff had left. From 6th September I have a missing payslip email and my requests was ignored. I am satisfied from the narrative provided that the Complainant ought correctly to have brought a claim looking for her Minimum Notice entitlements. For the purpose of expediency, I have included two claims under the Payment of Wages legislation to deal with the outstanding issues raised in the complaint form and expanded upon in oral evidence provided by the Complainant. |
Summary of Respondent’s Case:
I am satisfied that the date fixed for the hearing of this matter was sent by registered post to the registered office which happens also to have been the place of work for the Complainant. I have no reason not to believe that the Respondent received the letter from the WRC and dated the 28th of April 2025 and which was not returned. It is noted that the Respondent did try on the 20th of May 2025 to delay the hearing of this matter but this was not possible in circumstances where arrangements had been made to complete this remote hearing at the expense of the state. The Respondent did not attend. |
Findings and Conclusions:
I have carefully considered the evidence adduced by the Complainant herein. I accept that the Complainant worked as a restaurant Manager with the Respondent ‘s popular premises in Temple Bar. The Complainant was contracted to work a 39-hour week at a rate of €17.00 per hour. This gave the Complainant an average gross weekly wage of €663.00. The employment herein started in June of 2023. The Complainant confirmed the details set out in her workplace relations complaint form. The Complainant’s evidence seems to point towards a difficult situation arising in the restaurant over the course of the summer of 2024. The Complainant and her colleagues were receiving their remuneration up to three days later than would be normal as the Employer appears to have been grappling with cashflow issues. The hours of employment were also being reduced without explanation. Abruptly and without notice the restaurant closed on the 3rd of September 2024. The Complainant was not given statutory notice and was certainly not paid in lieu. The Complainant was working with the Respondent for in excess of thirteen weeks although less than two years – meaning the Complainant should have received one week’s salary in lieu of notice. The Complainant says that the final payslip was missing two hours of pay and did not reconcile whatever annual leave that she was entitled to. The Complainant estimates that she was owed 2 days accrued annual leave.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00066350-001 – I accept that the Respondent unilaterally reduced the Complainant’s contracted working hours in the weeks leading up to the Restaurant’s’ closure. This amounted to a change in the Contract terms. This complaint is well founded, and I compensate in the amount of €300.00. Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977 CA-00066350-003 – The Complainant has included this claim which concerns collective redundancies which has no relevance to the facts herein. For the avoidance of doubt, I confirm that the Complainant is not entitled to Statutory redundancy payment in circumstances where she does not have the requisite service of two years. This complaint is not well founded. Complaint seeking adjudication under Section 6 of the Payment of Wages Act, 1991 CA-00066350-004 - I am satisfied that the Respondent shut down its premises without notice and in circumstances where certain monetary entitlements remained due and owing. The complaint herein is well founded, and I compensate the Complainant in the amount of €663.00 Complaint seeking adjudication under Section 6 of the Payment of Wages Act, 1991 CA-00066350-005 - I am satisfied that the Complainant is entitled to be paid in lieu of two days accrued annual leave as well as two hours of work performed. The complaints herein are well founded, and I award compensation in the amount of €299.00 |
Dated: 28th July 2025.
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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