Complainant

Respondent

Parties

Cormac Thunder

JMS International Holdings Ltd t/a Shanahan’s On The Green

Representatives

  N/A

 N/A

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-00068305-001

20/12/2024

The Complainant worked as a Sommelier / Wine Manager and Floor Manager for the Respondent since June 2011. He worked approximately 40 hours per week, most recently earning approximately €1,212.74 gross per week. The Complainant submitted his Complaint Form to the WRC on 20 December 2024. The Complainant submits that the Respondent failed to pay him for his last week of employment as well as for his notice period, in breach of the Payment of Wages Act 1991, as amended. The Complainant is seeking his last week’s pay and six weeks’ pay for his notice period pay, which he alleges amounts to an approximate total of €8,400 gross.

The Complainant provided written and oral submissions.

The Complainant’s evidence was uncontested.

The Complainant outlined that he worked front of house and that he looked after the wine, as a Sommelier / Wine Manager and Floor Manager. He worked for the Respondent for 13.5 years. In his role, he managed approximately six to eight waiters on a shift. He had a contract of employment.

The Complainant stated that the Respondent sent an email to the employees dated 13 October 2024, attaching a letter which was headed “Shocked! Stunned!”. The letter stated that due to outstanding tax payment obligations, Revenue had frozen the Respondent’s bank accounts. In the circumstances, the Respondent indicated that the business was ceasing until further notice and that Mr. John Shanahan, the Respondent owner, may travel to the U.S. to resolve matters. The Complainant provided a copy of this letter and email. The Complainant stated that he never heard from Mr. Shanahan again.

The Complainant stated that later that same day, employees were issued with a letter from the Respondent’s Accounts Manager, which formally addressed the situation. The Complainant stated that this letter was to assist employees in making social welfare applications. The Complainant provided a copy of this letter.

The Complainant stated that Mr. Shanahan had always been in charge. He said that he tried to call Mr. Shanahan twice, but there was no response.

The Complainant stated that he worked 4 or 5 shifts per week. He provided a number of payslips by way of evidence. He said that his wages could vary depending on the time of year. He stated that it was busier during the summer. He stated that he received a “Service Charge”. He also stated that during Christmas week, he earned up to €2,000. The Complainant outlined that in 2024, he worked for 44 weeks and earned a gross weekly average wage of €1,212.74. He stated that in his statutory redundancy application, he indicated the same amount. The Complainant provided a copy of his Employee Declaration regarding his Statutory Redundancy Payments Scheme Application (unsigned and undated).

The Complainant is seeking payment for his last week of employment and for six weeks’ notice.

There was no attendance by or on behalf of the Respondent.

In a letter from the Workplace Relations Commission (the “WRC”) dated 3 April 2025, the Respondent was informed of the details of the Hearing to take place on 7 May 2025. The same letter set out the procedure regarding postponement requests. The Respondent did not seek a postponement and did not attend the Hearing.

On the morning of the Hearing, the WRC attempted, twice, to call the Respondent’s phone number on file. However, there was an engaged / disconnected ring tone.

A grace period was also allowed for the Respondent to attend, but the Respondent did not do so.

In the circumstances, I am satisfied that the Respondent was on notice of the Hearing and did not attend.

The Law:

Definition of “wages”:

Under the Payment of Wages Act 1991 as amended (the “PWA”), “wages” means:

“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:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind,

(vi) any payment by way of tips or gratuities.”

Section 5 of the PWA further provides as follows:

“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 anyinstrument 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.”

And

“5(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.”

And

“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.”

Finally, section 5(6) of the PWA was considered in Marek Balans v. Tesco Ireland Limited [2020] IEHC 55. In that case, MacGrath J. re-affirmed the proposition that the first matter to be determined is what wages are properly payable under the contract of employment. If it is established that a deduction within the meaning of the PWA has been made from the wages properly payable, it is then necessary to consider whether that deduction was lawful.

Findings and Conclusion:

The Complainant’s evidence was uncontested.

The Complainant outlined that he was not paid for his final week of employment and / or for his six-week notice period.

The Complainant outlined that his weekly salary fluctuated. He said that he worked four or five shifts per week; that it was busier during the summer; and that he also received a “Service Charge”. The Complainant outlined that in 2024, he worked for 44 weeks and earned a gross weekly average wage of €1,212.74.

The Complainant provided documentation in support of his complaint. The Complainant’s RoS Employment Details confirm that the Complainant worked for the Respondent from 30 June 2011 until 13 October 2024. The Complainant provided nine payslips detailing weekly earnings between January and September 2024. These payslips show that the Complainant’s earnings fluctuated and that in addition to his “Basic” wage of €102 gross per shift, he was also paid for, inter alia, “Service” and “CC Gratuit”. In his email to the WRC dated 14 July 2025, the Complainant confirmed that his earnings regarding service and gratuities varied from week to week and “wouldequate to around €700”, as per his RoS Employment Details and his Employee Declaration regarding his Statutory Redundancy Payments Scheme Application. The Complainant provided both his RoS Employment Details and his Employee Declaration regarding his Statutory Redundancy Payments Scheme Application (unsigned and undated). In the latter, the Complainant had indicated that his gross weekly wage was €1,212.74.

Last Week of Employment:

In his uncontested evidence, the Complainant outlined that his gross weekly average wage amounted to €1,212.74.

The Complainant outlined that he was not paid the amount that was properly payable to him for his last week of employment. Section 6 of the PWA (outlined above) provides that tips and gratuities are included in the award where a contravention of section 4C or 5 of the PWA has been found. Therefore, in respect of the Complainant’s last week of employment, I find that he is entitled to a gross payment of €1,212.74. This is a gross amount and is subject to taxation and any statutory deductions.

Notice Period:

I note that under the terms of the Minimum Notice and Terms of Employment Acts, 1973-2005 as amended, employees who work for an employer for 10 to 15 years are entitled to a minimum of six weeks’ notice. As the Complainant worked for the Respondent for approximately 13.5 years, he was entitled to a minimum of six weeks’ notice. As the Complainant did not receive this notice, he is entitled to pay in lieu of notice.

The payslips provided by the Complainant indicate that the Complainant’s “Basic” wage was €102 gross per shift. The Complainant also confirmed this amount in his email to the WRC dated 14 July 2025. The Complainant worked 4 or 5 shifts per week, earning a total basic wage of approximately €510 gross per week. I note that any payment by way of “tips or gratuities” is not considered “wages” for the purposes of the PWA (definition outlined above). Therefore, in respect of the Complainant’s notice period, I find that he is entitled to gross payment of €3,060 (€510 *6). This is a gross amount and is subject to taxation and any statutory deductions.

Conclusion:

In the circumstances, I find the complaint partly well-founded. I direct the Respondent to pay the Complainant a total gross amount of €4,272.74 (encompassing €1,212.74 for his last week of employment plus €3,060 for six weeks’ pay in lieu of notice.). This is a gross amount and is subject to taxation and any statutory deductions.

For the reasons set out above, I find the complaint partly well founded. I direct the Respondent to pay the Complainant a total gross amount of €4,272.74. This is a gross amount and is subject to taxation and any statutory deductions.

Payment of Wages Act 1991.