Complainant

Respondent

Parties

Maciej  Piedel

TH Golf Ltd trading as Truffle Honey (amended on consent at the hearing)

Representatives

  Self Represented

 Kate O'Shea Solutions

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-00067300-001

11/11/2024

The Complainant appeared in person and gave evidence on affirmation. An interpreter was also present at the hearing and swore an affirmation.

The Respondent was represented at the hearing. Mr. Shane Edwards, former Director, who gave evidence on affirmation, and by Mr. Michael Hayes, who also affirmed. At the outset of the Respondent’s evidence, it was submitted that the Complainant’s case was unclear from the complaint form and that no submissions had been received. The Respondent was given an opportunity to take instructions following the Complainant’s evidence but did not avail of this.

The name and registered address of the Respondent company was amended on consent.

The Complainant gave evidence that he had been promised full-time hours at the commencement of his employment on 6 May 2024, as he had financial obligations and could not afford to be out of work. He stated that he worked an average of approximately 51 hours per week and earned a gross weekly wage of €730.15.

He further stated that he took annual leave at the end of September or early October 2024 and, upon returning approximately one week later, was informed by a colleague that Killarney Golf Club was closing for renovations. He was not paid for this week.

He subsequently received a letter dated 29 September 2024 informing him that his hours would be reduced from 1 October 2024.

It was his complaint that he was due €3,200 in unpaid wages from the Respondent.

Upon cross examination, the Complainant accepted in worked 27 hours and was paid €438.45 on 23 October 2024.

Mr. Hayes gave evidence that, due to the nature of the business, full-time hours were typically available during the high season (ending in September and extending slightly into early October), while reduced hours were offered during the low season which continued until late February. He stated that a large number of staff worked reduced hours during this period.

He further stated that alternative hours were offered to the Complainant, comprising one full-time shift, one half-time shift during the week, and two to three weekend shifts. Although the Complainant initially accepted these hours, this did not continue. Mr. Hayes accepted that the Complainant’s gross weekly wage was €730 and that he received €438.45 for the week of 23 October 2023, supported by a payslip produced in evidence

Mr. Hayes was allowed time during the hearing to clarify when the renovations and subsequent closure of the restaurant took place. He stated that the renovations commenced on 27 October 2024, and the restaurant was closed Monday to Friday. The Complainant worked 5.5 hours on the following Sunday and was paid for a full day.

Mr. Edwards gave evidence that he issued the Complainant’s contract of employment, which was relied upon at the hearing. He stated that it contained a layoff clause but later accepted that there was no reference to seasonality in the contract.

Mr. Edwards acknowledged that it was foreseeable the business would operate on reduced hours during the low season. However, he did not accept that this was beyond his control. He stated that he had spoken with the Complainant regarding reduced hours and potential layoff prior to issuing the letter dated 29 September 2024, which was submitted in evidence.

Mr. Edwards further stated that employees were informed of the restaurant’s closure for renovations approximately three weeks in advance via a message circulated in a WhatsApp group. However, he was unable to provide evidence of this message at the hearing.

Under cross-examination by the Complainant, Mr. Edwards was asked why only two kitchen staff received the letter of layoff. He responded that it was possible only two individuals received the letter on that particular day, as the others may have been issued the letter at an earlier time.

Section 5 of the Payment of Wages Act 1991 provides:

“5.—(1) 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.

(2) An employer shall not make a deduction from the wages of an employee 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

The Complainant’s undisputed contract of employment provides for an annual salary of €38,000, with a pay reference of 45 hours per week over five days. It is noted that the Complainant was salaried and not remunerated on an hourly basis.

There are two distinct periods at issue in this complaint:

1.       The period of short time working from 1 October 2024; and

2.       The period during which Killarney Golf Club was closed for renovation, from 27 to 31 October 2024, which included a public holiday.

In relation to the short time working period, while the contract does provide for layoff and short-time working, it is not accepted that the Respondent could not have reasonably foreseen a downturn in business. Even if the situation was not entirely beyond the Respondent’s control, it is unclear why this was not expressly outlined in the contract of employment, particularly given that employees are entitled to transparency and predictability of working conditions under the EU (Transparent and Predictable Working Conditions) Regulations 2022.

According to Mr. Edwards’ evidence, the purpose of the letter dated 29 September 2024 was to enable the Complainant to notify the Department of Social Protection of his employment status. The Respondent appeared uncertain as to whether the Complainant was placed on layoff or on short time working. However, having regard to the content of the 29 September 2024 letter, Mr. Hayes’ evidence regarding the reduced shift pattern, and the Complainant’s confirmation that he worked 27 hours during the week ending 23 October 2024, I am satisfied that the Complainant was on short time working.

In any event, the contract of employment does provide for short-time working in accordance with Section 5 of the Act.

Turning to the period of closure for renovations, no documentary evidence was submitted to support the Respondent’s account, and conflicting versions of the notification were given by the Complainant and Mr. Edwards. There was no evidence in the contract of employment providing for a closure period that would result in unpaid wages, nor was there any evidence of the Complainant’s consent to such an arrangement as required under Section 5 of the Act. Furthermore, no legislative basis was provided to justify the non-payment of wages during the closure of the Golf Club.

Accordingly, I find the complaint to be well founded. The Complainant was entitled to be paid his weekly salary during the period of closure, as the shutdown was beyond his control and he did not consent to the withholding of his wages.

For the reasons set out above, I find the complaint is well founded.

In terms of redress, Section 6 provides:-

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be] (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount”

In making an award for the period from 27 to 31 October 2024, during which the Complainant was on short time working due to the renovation related closure, I have considered the payslip dated 23 October 2024, reflecting the Complainant’s earnings for the preceding week in the amount of €438.45. Accordingly, I award the Complainant compensation equivalent to twice that amount, totalling €876.90.