Complainant

Respondent

Parties

Nora  Paniagua Leaños

Leeson Catering Ltd (In Liquidation)

Complainant

Respondent

Anonymised Parties

Representatives

  Self

 Did not attend

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-00069895-001

10/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00069895-002

10/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00069895-003

10/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00070438-001

31/03/2025

The Complainant was employed by the Respondent as a kitchen porter.  She commenced employment on 22/11/2023 and she was paid an hourly rate of €13.50 and worked 35 hours per week.  Her employment finished on 22/03/2025 when the Respondent went into Liquidation.  The Complainant submitted her complaints to the Workplace Relations Commission on 31/03/2025.  She is claiming for loss of wages, public holidays and non-payment of tips and gratuities.

The Complainant gave evidence on oath.  She confirmed that she worked for the Respondent from 22/11/2023 until 22/03/2025.  She was paid the minimum wage which was €12.70 in 2024 and €13.50 in 2025.

The Complainant submitted a number of complaints in relation to alleged breaches of her employment rights.

CA-00069895-001:  The Complainant gave evidence that she did not receive any wages on the dates outlined below but she did receive a pay slip.  The Complainant provided the hearing with evidence from her bank statements to show that the money was not paid into her account.

·         Pay period 13: 27/03/2025 due €413.26

·         Pay period 12: 20/03/2025 due €314.63

·         Pay period 11: 13/03/2025 due €453.62

·         Pay period 10: 06/03/2025 due €463.51

·         Pay period 09: 27/02/2025 due €377.62

Total amount due: €2,022.64

CA-00069895-002:  The Complainant confirmed that this complaint was withdrawn as she made an error while completing the complaint form.

CA-00069895-003:  The Complainant gave evidence in relation to how the tips and gratuities were distributed on a percentage basis and based on the area where one worked. The Complainant confirmed that she received €80.00 per week from the tips and gratuities.  Her last payment was on 12/12/2024 and she did not receive any more up to the date of the closure of the business on 22/03/2025.  The Complainant submits that she has no way of knowing what amount the Respondent has retained over but based on her regular payment from tips and gratuities she is due the sum of €1,120.

CA-00070438-001:  The Complainant gave evidence that she did not receive any compensation for her public holidays, and she was not paid for her outstanding holidays when the business closed.  In relation to public holidays, she is claiming for a total of 6 days (2024: 28 Oct; 25 Dec; 26 Dec and 2025: 1 Jan; 3 Feb and 17 March).

The Complainant also submits that she did not take any holidays and was not paid for those when the company closed.  Her contract of employment stated that she would receive holidays at the rate of 8% of her total hours worked.  Based on an average of 35 hours per week this works out at a total 67.2 hours for the previous six months.  The monetary value of this is €907.20.

The Respondent or a representative did not attend.  There was no appearance by or on behalf of the liquidator.

The Complainant has submitted four complaints to the WRC. One of these (CA-00069895-002) was withdrawn at the hearing.

CA-00069895-001: This is a complaint seeking adjudication by the WRC under section 6 of the Payment of Wages Act, 1991.  The Complainant provided evidence that she received no pay for a five-week period despite being issued with pay slips.  The total amount due is €2,022.64.

By way of a 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 Complainant by the Respondent in connection with the employment.

I find that the Complainant’s Workplace Relations Complaint Form dated 31/03/2025 was submitted within the time allowed.

Section 5 of the Payment of Wages Act 1991 provides as follows:

“(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.

(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.”

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 Finnegan J. considered Section 5 of the Act as follows:

“Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where 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, then, except insofar as the deficiency or non – payment is attributable to an error of computation, the amount of the deficiency or non – payment should be treated as a deduction made by the employer from the wages of the employee on the occasion. Central to the court's analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an error of computation”.

What Amount is Properly Payable?

The Act provides that where the total amount of wages properly payable to an employee is not paid, any deficiency is regarded as a deduction. Consequently, to ground a claim under the Payment of Wages Act 1991 an Adjudication Officer needs in the first instance to ascertain what wages are properly payable. The starting point for assessing what is properly payable is the contract of employment.

In this case, the Complainant asserts that her contractual entitlement to a payment arises from her written terms and conditions which states that her rate of pay is aligned  the National Minimum Wage which is €13.50.

Was there a shortfall in payment?

Section 5(1) of the Act prohibits an employer from making deductions to an employee's wages except in accordance with the provisions of that section.

The Complainant is entitled, under the provisions of her terms and conditions to be paid the rate of €13.50 per hour.  From reviewing the pay slips provided by the Respondent to the Complainant these show that the Complainant was due the sum of €2,022.64.  The Complainant’s bank statement confirms that the Respondent failed to transfer anything to her account.  I am absolutely satisfied that her bank statement does not show any payment by the Respondent which correspond to the five pay slips submitted by the Compainant. 

Based on the uncontested evidence and the supporting documentation provided I find that the complaint is well founded, and the Complainant is due the sum of €2,022.64.

CA-00069895-003: This is a complaint seeking adjudication by the WRC under section 6 of the Payment of Wages Act, 1991.  The Complainant provided evidence that she received no payment of tips and gratuities for the period 12/12/2024 up to 22/03/2025 which were collected by the Respondent.

By way of clarification with effect the 01/12/ 2022 the Payment of Wages (Amendment)(Tips and Gratuities) Act 2022 introduced new rules as to how employers have to share tips, gratuities and service charges.  There was clearly an agreement between the Respondent and the Complainant and all her colleagues that the tips and gratuities would be distributed in the manner agreed and this agreement was reneged on by the Respondent. 

The Complainant has no way of discovering what the Respondent done with the tips and gratuities collected.   What is very clear is that section 4B(2) of the Payment of Wages Act 1991 (hereinafter referred to as “the 1991 Act”) makes it clear that “an employer shall not retain any share of tips or gratuities received by the employer by an electronic mode of payment”.

In response to questions from the Adjudication Officer the Complainant provided honest evidence in relation to the tips that she previously received and what she considered was owed. The Complainant confirmed that she consistently received €80.00 per week from the tips and gratuities.  Her last payment was on 12/12/2024 and she did not receive any more up to the date of the closure of the business on 22/03/2025.  The Complainant submits that she is due the sum of €1,120.  The Complainant also noted that none of her colleagues received their share of the tips collected.

Taking into consideration the evidence of the Complainant and the documentation submitted to the WRC I am satisfied that the Complainant has established her claim under the 1991 Act. I find that this complaint is well-founded and that the Complainant is entitled to compensation of €1,000 which I find is reasonable having regard to all the circumstances.

CA-00070438-001: This is a complaint seeking adjudication by the WRC under Section 27 of the Organisation of Working Time Act, 1977.  The specific complaint is that she did not receive her annual leave entitlement or her public holiday entitlement.

Section 19(1) of the Organisation of Working Time Act calculates the annual leave entitlement in the following manner:

“19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

The cognisable period for this complaint is from 30/09/2024 to 31/03/2025.  Under the provisions of Section 21 of the Organisation of Working Time Act, 1977 an employee is entitled to benefit for each of the nine public holidays in a given year.  The complainant was not provided with her entitlements for the following six public holidays:

2024: 28 October, 25 December, 26 December

2025: 1 January, 3 February, 17 March

The monetary value of these entitlements is calculated at €78.66.

Annual Leave:

The Complainant also submits that she did not take any holidays and was not paid for her outstanding annual leave when the company closed. 

Pursuant to Section 19 of the Act, an employee is entitled to 4 working weeks’ annual leave or, where more favourable, leave accruing at 8% of hours worked, subject to a maximum of 4 working weeks.

The Complainant’s contract provided for leave at 8% of total hours worked. Based on an average of 35 hours per week over 26 weeks (910 hours), the Complainant accrued 67.2 hours’ leave entitlement during the cognisable period.

The monetary value of this entitlement is €907.20.  In accordance with Section 41 of the Workplace Relations Act, 2015, and having considered the uncontested evidence, I find that the complaint is well-founded. 

I direct the Respondent to pay the Complainant: €78.66 in respect of unpaid public holiday entitlements, and €907.20 in respect of untaken and unpaid annual leave. The total award in relation to this specific complaint is €985.86.

CA-00069895-001:  I have decided that this complaint is well-founded and I award the Complainant the sum of €2,022.64.

CA-00069895-003: I have decided that this complaint is well-founded and that the Complainant is entitled to compensation of €1,000 which I find is reasonable having regard to all the circumstances.

CA-00070438-001: I have decided that this complaint is well-founded and I award the Complainant the sum of €985.86 in respect of public holiday entitlements and annual leave entitlements.

Payment of wages.  Public holiday entitlement.