ADJ-00054975

ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00054975

Parties:

Complaints:

Date of Adjudication Hearing:  13/06/2025

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

These complaints were referred under Section 41 of the Workplace Relations Act 2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 30th October 2024.  Following delegation to me by the Director General, I inquired into these complaints and gave the Parties an opportunity to be heard and to present any relevant evidence.  Submissions and documentation was received from both Parties.  Following an adjournment to facilitate the exchange of submissions, this complaint was heard in Lansdowne House on 13th June 2025.  Both Parties were self-represented and a number of witnesses attended on behalf of the Respondent.  The Respondent’s name was amended on consent and complaint references were added to reflect the complaint form.  This matter was heard in public, and the Parties were made aware that their names would be published within this decision.  All evidence was taken under oath/affirmation.  All submissions, documentation and evidence proffered by the Parties have been fully considered herein.

Background:

The Complainant had been employed by the Respondent as a Bar Person between 4th August 2022 and 13th October 2024.  He claimed a shortfall in his wages, non-payment of Sunday premium and non-payment for three public holidays falling within the cognisable six-month period.  The Respondent refuted the first two complaints but conceded that the Complainant had not been paid for the three public holidays claimed.

CA-00067022-001 – Underpayment of Wages under Section 5 of the Non-Payment of Wages Act 1991

Summary of Complainant’s Case:

The Complainant gave evidence confirming that he was employed as a Bar Person by the Respondent at its licenced Bar & Bistro in Dublin 8 between 4th August 2022 and 13th October 2024 when he had resigned.  His duties entailed serving drinks to customers and closing-up.  He had been working full-time until mid-March 2024 when he was assaulted by a member of the public whilst in work.  After a period of sick-leave, he had returned to work on a part-time basis from early May 2024.  He worked an average of 25 hours per week.  His pro-rata wages equated to €16.80 gross per hour.  He had never been furnished with an employment contract or written statement of his terms of employment but had not included this within his complaints to the WRC.  He contended that a Manager who had since left the Respondent had undertaken to give him a pay-raise of €18 gross per hour but he had continued to receive his wages at a rate of €16.80 gross per hour as per payslips furnished.  He could not say when the Manager had verbally informed him of this pay-rise but thought that it was sometime before he went part-time.  This pay-rise was never confirmed in writing.  The Complainant had verbally raised this with the Payroll Assistant who had also since left the Respondent.  In support of this complaint, he furnished a text-message exchange with the Managing Director discussing an increase to €18 gross per hour.  He also relied upon the Respondent’s adverts for similar positions with a rate of pay of €18 gross per hour.  He contended that the failure to pay him at €18 gross per hour had led to a shortfall in his wages in contravention of the Payment of Wages Act 1991 and sought compensation for the cognisable six-month period prior to the referral of this complaint.

Summary of Respondent’s Case:

The Managing Director confirmed that the Complainant had been a loyal member of the Respondent’s bar staff between 4th August 2022 and 13th October 2024.  On 18th March 2024, he had threatened to resign following the incident with the member of the public but had returned from early May 2024 on a part-time basis.  He explained that staff are paid a weekly salary and hours worked are averaged over a three-weekly cycle.  Based upon a salary of €672 gross for a 40-hour week, the pro-rata rate of pay per hour for the Complainant was €16.80 gross for a 25-hour working week.  When paid breaks and actual hours worked were factored in, the hourly rate was closer to €18 gross per hour.  Although updated written terms of employment were furnished to all staff members on an annual basis, the Managing Director accepted that these were in generic form and the Complainant had not been furnished with a copy setting out the rate of pay specific to him.  He confirmed that the Respondent would be complying with the requirements of the Terms of Employment (Information) Act 1994 going forward following a recent WRC workplace inspection.

The Complainant had sought a pay-rise, but the Respondent could not accede to this and the knock-on effect of its other staff requesting similar.  On 29th September 2024, the Complainant gave two weeks’ notice of his resignation from 13th October 2024 on the basis that he had accepted a better-paid position elsewhere and left his employment with the Respondent.  On 18th October 2024, the Complainant had messaged the Managing Director complaining that his role had been advertised at €18 gross per hour and stating that in fact he did not have a better job and was on Social Welfare.  The Managing Director replied: “It’s the same money you are on Paul, €18/hour, you wanted €20+ for a raise which I can’t do.”  The Complainant then messaged him on 25th October 2024 seeking payment of various monies he contended were due “Before 2 or this will effect everyone employed by you” and threatened referral to the WRC.  The Managing Director had replied: “I won’t be making blind cash offers.  I’d advise you to go to the WRC.”

The Managing Director confirmed that the text message exchange between him and the Complainant referred to a rate of pay of €18 gross per hour if he agreed to return to work on a full-time basis.  He contended that only he had the requisite authority to grant a pay-rise and the former Manager whom the Complainant contended had verbally given him a pay-rise did not have any such authority.  This was not put in issue by the Complainant.  The Respondent had advertised various positions with different rates of pay depending upon the role and hours.  The Managing Director further contended that the Respondent had been very generous towards the Complainant during his employment.  In particular, he had been paid for his breaks and his full-time wages for three weeks whilst off on sick-leave in March/April 2024.  He further contended that the Complainant had been overpaid for the cognisable period following a review of his working time records.  However, it had also been his position that there had been inaccuracies with Payroll. 

A witness for the Respondent holding an equivalent role to that of the Complainant confirmed that the current rate of pay for all Bar Persons at the Complainant’s level of experience was €16.80 gross per hour.  He had more responsibilities and was paid the same rate.  This position was supported by another witness. 

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant statutory provisions in order to determine whether there has been an unlawful deduction from wages contrary to Section 5 of the Payment of Wages Act 1991.  Section 1(1) of the Act defines ‘wages’ in relation to an employee as “…any sums payable to the employee by the employer in connection with his employment, including- (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:”  There is no issue that the alleged shortfall in pay in the instant case constitutes ‘wages’.

In relation to deductions from wages, Section 5(1) of the Payment of Wages Act 1991 provides: “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.”  It is well-settled law that an underpayment of wages can constitute a deduction within the meaning of Section 5(1).  The remainder of Section 5 provides for other circumstances when an employer can make a lawful deduction from an employee’s wages and is not applicable to the instant case.  Section 6 of the Act provides for the referral of complaints to the WRC and available redress.

As stipulated in Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornelscourt) Limited -v- Lacey [2007] 1 1R 478, a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under Section 5 of the Payment of Wages Act 1991.  In the instant case, the Complainant was not provided with an employment contract or written statement of the terms of his employment setting out his rate of pay.  It was common case that his pre-existing rate of pay had been €16.80 gross per hour.  I found the Complainant’s evidence regarding the purported pay-rise from €16.80 gross per hour to €18 gross per hour to be vague and lacking any specificity.  It is also notable that he did not raise this as an issue in his text-message exchange with the Managing Director at any time before resigning.  Even if I was to accept his contention that a former Manager had undertaken to give him this pay-rise, I am satisfied that this Manager did not have the requisite authority to do so based upon the uncontested evidence on this issue.  I therefore find on the balance of probabilities that the Complainant was not contractually entitled to a rate of pay of €18 gross per hour for the cognisable period subject to this complaint.  Accordingly, there was no unlawful deduction from his wages in contravention of Section 5 of the Payment of Wages Act 1991.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with Schedule 6 of the Act and the provisions of Section 6 of the Payment of Wages Act 1991.  For the reasons set out aforesaid, I find that this complaint is not well-founded. 

CA-00067022-002 – Non-payment of Sunday Premium contrary to Section 14 of the Organisation of Working Time Act 1997

Summary of Complainant’s Case:

The Complainant contended that his rate of pay did not include provision for Sunday premium contrary to Section 14 of the Organisation of Working Time Act 1997.  Accordingly, he sought compensation at an additional 25% per hour in respect of all Sunday time worked within the six-month cognisable period.

Summary of Respondent’s Case:

The Managing Director contended that provision was made for Sunday premium within the Complainant’s hourly rate of pay and the same applied to all members of staff.  This was common practice within the bar industry given the anti-social hours entailed.  The rate of pay also factored in length of service and experience with bar staff starting on the minimum wage.  He referred to the generic written terms of employment which had been made available to all staff including the Complainant.  This contained a clause: “Composite Hourly Pay Rate:  This is the amount (€) per hour the employee receives.  Composite Hourly Rate includes premium pay in lieu for any variable scheduled requirements to work outside normal working hours or Sundays listed during any given weekly period.  As per the National Minimum Wage (Low Pay Commission) Act 2015 (22/2025), the minimum wage for a skilled individual aged 20 years or older is €12.70 per hour.”  He contended that this had always been the position.  The Respondent’s witnesses also confirmed that a composite rate of pay factoring in Sunday premium had always been paid to all staff.

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant statutory provisions in order to determine whether there has been non-payment of Sunday premium in contravention of Section 14 of the Organisation of Working Time Act 1997.  Section 14(1) of the Act provides as follows:

“14.-(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely-

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.”

Having considered all the evidence and in particular the Respondent’s standard terms of employment, I am satisfied that the Respondent operated a composite rate of pay, expressly making provision for Sunday premium.  I also note that the Complainant’s hourly rate of pay was €16.80 gross whilst the minimum wage at the material time was €12.70 gross.  Accordingly, I am satisfied on the balance of probabilities that the Complainant’s rate of pay complied with Section 14 of the Organisation of Working Time Act 1997.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with Schedule 6 of the Act and the provisions of Section 27 of the Organisation of Working Time Act 1997.  For the reasons set out aforesaid, I find that this complaint is not well-founded.

CA-00067022-003 – Non-payment for Public Holidays contrary to Section 21 of the Organisation of Working Time Act 1997

Summary of Complainant’s Case:

The Complainant contended that he had not been paid for three public holidays falling within the cognisable six-month period in contravention of Section 21 of the Organisation of Working Time Act 1997.  The public holidays in question were 6th May 2024, 3rd June 2024 and 5th August 2024.  He sought 5 hours pro-rata for each day totalling 15 hours at a rate of €18 gross per hour amounting to €270 plus compensation.

Summary of Respondent’s Case:

The Managing Director conceded that the Complainant had not been paid for the three public holidays in question as the Respondent had operated a practice of paying staff for breaks in lieu of payment for public holidays.  He confirmed that during the course of the WRC workplace inspection he had become aware that this was not in compliance with Section 21 the Organisation of Working Time Act 1997 and this practice had since been changed.  Rather than make payment, he opted to have the WRC adjudicate on this complaint.

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant statutory provisions in order to determine whether there has been non-payment for public holidays in contravention of Section 21 of the Organisation of Working Time Act 1997.  Section 21(1) of the Act provides as follows:

“21(1) Subject to the provisions of this section, 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.” 

Section 21 of the Organisation of Working Time Act 1997 therefore requires that in respect of a public holiday, an employee is entitled to receive either a paid day off on that day, a paid day off within a month of that day, an additional day of annual leave or an additional day’s pay.  Given the Managing Director’s concession that none of these provisions had been made in relation to the Complainant for public holidays, I find the Respondent to be in contravention of Section 21 of the Organisation of Working Time Act 1997. 

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in accordance with Schedule 6 of the Act and the provisions of Section 27 of the Organisation of Working Time Act 1997.  For the aforesaid reasons, I find this complaint to be well-founded.  Section 27(3) of the Organisation of Working Time Act 1997 provides: “A decision of an adjudication officer under Section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”  I note that the Respondent was generous to the Complainant in other respects including the provision of paid breaks.  However, the Respondent had opted not to resolve this matter and pay the Complainant what is his statutory entitlement despite conceding this complaint.  Consequently, the Complainant has been required to attend two hearings of the WRC to enforce this entitlement.  Accordingly, I am satisfied that compensation of €500 (comprising of €252 being 15 hours at €16.80 gross per hour plus €248 in compensation) is just and equitable in all the circumstances.  I direct same to be paid to the Complainant within 42 days herewith.

Dated:   03rd of July 2025

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Section 5 of the Payment of Wages Act 1991 – shortfall in rate of pay constituting deduction from wages – Section 14 of the Organisation of Working Time Act 1997 - non-payment of Sunday premium – Section 21 of the Organisation of Working Time Act 1997 - non-payment for public holidays