ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00056530

Parties:

Complaint:

Date of Adjudication Hearing:  29/08/2025

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint was referred under Section 41 of the Workplace Relations Act 2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 7th January 2025. Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  This complaint was heard remotely on 29th August 2025.  Both the Complainant and a Director (hereinafter ’Director A’) of the Respondent were in attendance and were unrepresented.  Evidence was taken under oath.  The hearing was held in public and the Parties were made aware that their names would be published.  I have considered all the evidence and documentation submitted herein.

Background:

The Complainant claimed that he was owed €2,302 gross in outstanding wages upon the termination of his employment with the Respondent when it ceased trading.  Director A conceded that the amount claimed was due and owing but has been unable to discharge same and intends to appoint a Liquidator when he has the funds.  The Complainant sought a decision of the WRC for the purposes of payment via the Liquidator and/or the Insolvency Payments Scheme operated by the Department of Social Protection.

Summary of the Complainant’s Case:

The Respondent provided a food service for a Pub under a contract.  The Complainant commenced employment with the Respondent as a Chef on 28th August 2023 on a salary of €950 gross per week and worked on the Pub premises providing the food service.  His employment ended suddenly on 9th January 2024 when the Respondent ceased trading because the Pub had terminated the contract.  He had received a final payslip for €2,302 comprising of €950 gross for wages and €1,352 in lieu of annual leave, which has not been paid to date.  Accordingly, this constitutes an unlawful deduction from his wages contrary to Section 5 of the Non-Payment of Wages Act 1991.  Along with some of the other staff, the Pub had reemployed the Complainant the following day and provided him with a new employment contract.  The management had declined to recognise their service to date or take over the Respondent’s liabilities to its employees under the Transfer of Undertakings Regulations (TUPE).  However, Director A had repeatedly acknowledged these monies as being due and owing to the Complainant, both in writing and verbally.  As he had indicated that he was trying to recover monies due from the Pub in order to discharge same, the Complainant had held off on referral to the WRC until 7th January 2025.  He very reasonably confirmed that he is not seeking any additional compensation under the Act beyond his outstanding wages claimed herein.

Summary of Respondent’s Case:

Director A attended at the hearing on behalf of the Respondent.  He confirmed that the Respondent’s sole business had been the provision of a food service for a Pub under a contract for service and had employed up to 14 staff including the Complainant.  The Respondent had only been trading for approximately six months and had made it through the quiet Winter period of 2023 when the Pub had suddenly terminated its contract without giving full contractual notice.  Director A had raised final payslips for the staff based upon the monies due to be received from the Pub for the service provided the previous week.  However, this was not paid over and accordingly, the Respondent had no monies to make payment on foot of the payslips raised.  The Pub had immediately reemployed some of its staff including the Complainant to carry on the food service directly.  Notwithstanding that it was arguable that the Pub had taken over the Respondent’s liabilities to its staff under the Transfer of Undertakings Regulations (TUPE), having obtained legal advice, Director A conceded liability for the outstanding wages including €2,302 remaining due and owing to the Complainant.  He also confirmed that currently the Respondent has no funds and he is pursing the monies due and owing from the Pub which would cover its liabilities.  Once the Respondent is in funds, he intends to appoint a Liquidator to wind up the Respondent.  Finally, he undertook to do all that was possible to assist the Complainant in obtaining payment on foot of any decision of the WRC herein.

Findings and Conclusions:

Firstly, it is noted that this complaint was referred to the WRC on 7th January 2025 two days short of the 12-month anniversary of the termination of the Complainant’s employment.  The time limit for referral of a complaint under the Payment of Wages Act 1991 is governed by Section 41(6) of the Workplace Relations Act 2015 and entails a 6-month time limit from the date of contravention extendable up to 12 months if reasonable cause is shown under Section 41(8).  Given that the Respondent has repeatedly acknowledged the monies claimed as due and owing to the Complainant, I am satisfied that this complaint is within time.

The approach to be taken when adjudicating on a claim under the Payment of Wages Act 1991 is set out in Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) 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.  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.”  In circumstances where Director A has conceded that the Respondent is liable for the Complainant’s outstanding wages, I am satisfied that the Complainant is contractually entitled to the sum of €2,302 claimed.  Given that it is not in issue that the Respondent has not discharged these monies to date, I am further satisfied that this constitutes a breach 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 the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.  I find this complaint to be well-founded on the aforesaid basis.  Noting that no additional compensation is being sought, pursuant to Section 6(1) of the Payment of Wages Act 1991, I consider it reasonable in all of the circumstances to direct that the Respondent pays the Complainant compensation in the sum of €2,302 within 42 days hereof.

Dated:   09-09-2025

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Non-payment of wages upon termination - Section 5 of the Payment of Wages Act 1991