Complainant

Respondent

Parties

Colin  Kelly

Gyrogy Ltd

Representatives

Self-represented 

Darach MacNamara BL instructed by Anna Tuite, Ahern Rudden Quigley LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00071205-001

30/04/2025

The Complainant referred this claim to the Director General of the WRC on 30 April 2025 pursuant to the Payment of Wages Act, 1991 alleging that the Respondent has not paid him or has paid him less than the amount due to him.

On 3 October 2025, the Complainant referred another claim pursuant to the Payment of Wages Act, 1991 and one under the Terms of Employment (Information) Act, 1994 which were allocated a reference number ADJ-00062314.

In the interests of fairness and efficiency both the Complainant’s complaints against the Respondent pursuant to the Payment of Wages Act, 1991, and the complaint pursuant to the Terms of Employment (Information) Act, 1994 were listed for a hearing on 4 December 2025.

The Respondent rejects the claims.

Adjournment application

A hearing for the purpose of investigating the claim was scheduled for 18 September 2025. In advance of the hearing, on 10 September 2025, the Respondent’s representative applied for a postponement of the hearing on the basis that the Complainant, as the CEO of the Respondent company, was refusing to make available the books and records of the Respondents as to enable the Respondent to defend the complaint. The Complainant objected to the postponement. The postponement application was declined and the parties were notified of the refusal on 15 September 2025.

On 17 September 2025, the Respondent emailed the WRC with a copy of its letter to the Complainant informing him that the Respondent intends to renew its application for an adjournment at the outset of the hearing.

At the outset of the hearing on 18 September 2025, the Respondent’s representative applied for a postponement on the basis that the Complainant, as the CEO, was in control of the Respondent’s records. Mr McNamara BL asserted that the Respondent was willing and able to meet the Complainant’s claim but needed access to said records. Mr McNamara stated that the Respondent wrote to the Complainant on 3 December 2024, 3 March 2025 and, again, in May 2025 in that regard. Mr McNamara said that the Complainant “last minute” sent documents to the Respondent.  He said that he could not represent his client to the best of his ability and the Respondent has only been given a ”snapshot” of what it required.

Mr McNamara stated that the Respondent requested but did not get the Complainant’s payslips from the former accountant. Mr McNamara stated that the company continues operation but has no access to its bank accounts and payroll.

In response, the Complainant stated that all records were sent to Mr Phelan, Director by registered post, and delivered on 27 August 2025. He further stated that payroll records are generated by the payroll service provider which was replaced in July 2025 by Mr Phelan’s accountant. The Complainant alleged that the former accountant confirmed to him that no request for payslips was made by the Respondent. The Complainant further stated that through the sweep of the IT system, the Respondent had access to the same documents that he had.

The Respondent acknowledged receipt of the records from the Complainant on 27 August 2025. However, that the Respondent maintained that the company operated without access to its own payroll system or banking facilities. The Complainant, by contrast, asserted that the Respondent had access to the same records that were available to him.

Based on the submissions of the parties, it was apparent that there is a broader dispute between the parties that falls outside the remit of the WRC. I am not prepared to intervene in matters that extend beyond the scope of this forum.

Having carefully considered the circumstances of the instant case, I reluctantly granted an adjournment. I advised both parties that they must be fully prepared for the next hearing, as no further delays would be accommodated.

The Complainant submits that the Respondent has not paid him his wages.

The Complainant submits that his total remuneration package agreed in the Shareholders Agreement was €276,000 per annum. This includes salary, pension and employer’s contribution.

As the company was in financial difficulty throughout 2024, the Complainant deferred pension contributions from February and salary from the end of October 2024. This was on the understanding that the company's shareholders would continue to fund the business but they have not done so. The company has an asset that could be sold to meet the liabilities to the Complainant and other creditors, but the shareholders are not willing to sell it. The Board of the company (controlled by the majority shareholder) refuses to make the Complainant’s position redundant. Therefore, the Complainant put himself on short time working from 1 March 2025 of 1 day per week.

The Complainant submits that he has raised a number of grievances about this, but it was going nowhere.

On 15 September 2025, the Complainant furnished the following in reply to the request for his comments in relation to the Respondent’s postponement application. The Complainant requested that this statement be included in his written submission for the purposes of the hearing.

The Respondent’s Directors Mr Phelan (Chairman of the Board and shareholder) and Mr McEnroe (Director, Gyrogy Capital Partners Limited) have majority control of the Board of Gyrogy Ltd. (Company/Respondent).  They are also the sole directors of Gyrogy Capital Partners Limited (GCP), an investment vehicle with a 50% stake in the Company which includes Mr McEnroe and Ms Natalia Sutherland, as the principal investors and shareholders in GCP.

Aileen Galvin is the other member of the Board of Gyrogy having been appointed by the Complainant as his alternate. At a board meeting on 26 May, Mr Phelan and Mr McEnroe resolved that Mr Phelan would handle this case for Gyrogy and appoint any advisors he saw fit to represent the company.

Books and records through data breach

These GCP directors issued instructions to the Company’s IT provider to allow unlimited access to the Company’s systems to Grant Thornton Ireland (GT). On 27 February at 08:58, Mr McGovern, Director of the Forensic Department in GT, oversaw access to the full Microsoft 365 environment and executed a Microsoft Purview compliance search using the term “Include: [All]”. This command swept up the entire Microsoft 365 environment of Gyrogy Ltd. including all employee mailboxes (past and present), OneDrive accounts, SharePoint files, and confidential third-party data.  From that date, the GT Forensic team conducted regular surveillance of all email accounts through to 21 March 2025 when the Complainant became aware of the data breach and shut it down.  The Data Protection Commission is investigating the breach. 

Books and records through normal channels

Separately, the Complainant submits that the GCP directors received the Company’s books and records through normal channels. They have already been provided with the full suite of accounting information, including the general ledger and trial balance, annual financial statements, VAT and corporation tax returns, payroll records, bank statements, and regular management accounts prepared by DMC (the Respondent’s accountants) and presented at each board meeting.

Preliminary List

The Complainant referred to the Respondent’s letter of 10 September 2025 and its “preliminary” list, that it claims to require before it will attend the hearing.

Item 2 Payslips: the GCP directors claim to have no access to payslips despite having clearly received the Gross to Net Payroll XL file from DMC (the Company’s accountants).  It is also important to note that they unilaterally removed DMC from providing payroll services and appointed their own accountant Brophie Gillespie to do it instead.  They are now fully registered agent with the Revenue for payroll so it is simply not credible that the WRC hearing needs to be postponed for missing payslips.  At no stage were they ever requested from DMC.

Item 3 Bank Statements: The Respondent was in regular receipt of bank statements. For completeness, the entire set of bank statements (261 pages) was delivered to the Respondent on 27 August 2025 at 11:09, long before the postponement request.

Items 1 (A copy of the Complainant’s contract of employment) & 4 (details of the alleged deferral of salary and agreement that the Complainant would work 1 day per week):  The Respondent is clearly aware that items 1 and 4 do not exist. It is unclear why would it suggest that it needed copies before attending the hearing.

Registered office and correspondence: The Respondent has raised concerns about postal delays, yet WRC correspondence was received within three business days on each occasion (WRC>Limerick>Dublin), and Mr Phelan had already been notified by email on 7 May 2025 that the Complainant had submitted a claim. Any delay is a direct consequence of the Respondent’s decision not to accept the WRC’s offer to correspond by email. The Complainant alleged that this was only to avoid any suggestion at a later stage that the Respondent did not receive proper notice of the hearing date.

Postponement

The Complainant submits that GCP Directors have a lot of people working on this; three legal firms (Brian T Clarke, formerly Maples; Arthur Cox LLP; and AQR LLP), two forensic accountancy teams (Grant Thornton and Kirby Healy), and the payroll/accounting/company-secretarial team (Brophie Gillespie).

The Complainant submitted that, in considering the request for postponement, the WRC should weigh whether, with this level of information, resources, expertise, and support already available to it, the Respondent genuinely lacked the ability to prepare for a Payment of Wages Act hearing.

The WRC should also consider whether the postponement request was made in good faith, considering the information already in the possession of the Respondent. 

The Complainant was at that stage over ten months without pay, while most other creditors and staff have been paid. This prolonged non-payment places him under severe economic duress and has been used as a tool of pressure to force him to leave the company he founded. Until this matter is resolved, each postponement prolongs the hardship and increases the pressure upon him to leave.

Submission of 17 September 2025

The Complainant submits that this complaint is confined to the six months of total non-payment of salary from November 2024 to April 2025. It does not include other arrears or entitlements, which are not before the WRC.

The Complainant has been a shareholder, Director and CEO of the Respondent since he founded the Company in August 2020. The Complainant became a full-time employee of the company on 16 September 2022.  Prior to that he was remunerated as a consultant.

As the CEO, the Complainant has charge of all day-to-day operations of the Company reporting to the Board.

The Complainant submits that the Respondent did not provide him with a written statement of terms of employment. This is an issue for the Board of the Company including its Chairman Mr Phelan and Company Secretary (at the time) Mr Budge.

Therefore, the Complainant relies on the Subscription and Shareholders Agreement (“SSA”) dated 23 December 2021, of which the Company and himself are parties.

The SSA includes a “Business Plan approved as of the Completion Date” which set the Complainant’s starting salary as €200,000 per annum, with a pay rise to €225,000 from 2023. Therefore, the amount of salary agreed in writing between parties for the period of this claim is €225,000. There has been no waiver of this.

While the Company was pre-revenue, the Complainant only drew €150,000 of salary per annum up to October 2024. The Complainant has not been paid any salary since.

This complaint was filed on 30 April 2025 and captures the 6 months from November 2024, when the Respondent ceased making any salary payments, to April 2025. Accordingly, the properly payable salary for this period is €112,500.

Business Plans presented to the Board

As the CEO, it is the Complainant’s responsibility to submit business plans to the Board and shareholders for approval. The Board did not wish to consider the plan submitted. The Company ran out of funds to pay the Complainant (and other employees and creditors). Most of those creditors and staff have been since paid by the directors of GCP, not by the Respondent itself.

Grievances raised – in advance of bringing the complaint to the WRC.

The Complainant submits that he raised two grievances as a promoter and an employee on 29 October 2024 and 5 November 2024 respectively, in relation to threats made at a Board meeting against him and his family, the Board’s obligations to protect promoters’ interests and interference with his role and employment. In response to these grievances, a major escalation from GCP ensued from 15 November 2024. While these grievances and response from GCP are not the subject of this claim, it is notable that the Complainant was not paid ever since.

On 27 February 2025 the Complainant emailed his formal grievance letter requesting to be paid and confirming he would no longer work full-time without any pay. It was clear the 2025 Business Restructuring plan was not being adopted.

Emails 3 March 2025 - in their replies, Mr Phelan and Mr McEnroe (Board Directors) confirmed that that the Complainant remained the CEO and an employee and did not deny that wages have gone unpaid. They disputed the Complainant’s stated remuneration figure but offered no alternative basis for salary. Instead, they attempted to shift the issue onto shareholder funding and other disputes but offered no lawful justification under the Payment of Wages Act for withholding the Complainant’s salary.

On 17 April 2025 the Complainant wrote with a detailed follow-up on the 27 February 2025 grievance and the other Directors’ responses. This included a full statement of affairs and options for repayment. As there was no response to this letter, the Complainant filed a complaint with the WRC on 30 April 2025.

Continuing employment and properly payable wages

The Complainant submits that he was forced to find other work from March 2025, solely to support himself and his family, as the Respondent had stopped paying his wages. This does not reduce or waive his entitlement to be paid his full salary while he remained the Respondent’s employee.

The Complainant has never agreed to any reduction in his salary. The short-time working arrangement mentioned in his grievance of 27 February 2025 was a temporary survival measure forced by the Company’s breach, and the Complainant expressly confirmed it was not a resignation or waiver of pay. Only the employer can designate short time under law, and the Respondent never did so. The salary remains properly payable.

The Complainant submits that under the Payment of Wages Act 1991, wages remain properly payable so long as he is an employee. He has received no communication from the company that changes his employment status.

Submission of 18 September 2025

In response to the Respondent’s email of 17 September 2025 and specifically point 1: “the Complainant continues to refuse to grant our client access to the books and records of the Respondent company so as to enable it to formulate a defence”, the Complainant provided the following written reply.

The Complainant referred to his email of 15 September 2025 to the WRC which outlined the unprecedented access to information that Mr Phelan and Mr McEnroe have managed to procure through their forensic accounting team in Grant Thornton. It also gave an account of the information that they have in their possession by proper means.

The Complainant submitted that Mr Phelan and Mr McEnroe had access to (in their own words) any and all data stored within the cloud infrastructure related to the Company, including but not limited to, all relevant backups, system records, and associated metadata necessary comprising a complete and accurate retrieval of the Company’s stored information.

The Complainant provided a copy the “authorisation letter” signed by both on 19 February 2025 and a summary of the Microsoft Purview Logs showing their successful retrieval of all company information. The last data-sweep of company/employee information, acquired for Mr Phelan and Mr McEnroe took place on 18 March 2025 at 16:12.

The Complainant submits that the Respondent has sufficient information to formulate a defence.

With regard to point 2 of the Respondent’s email of 17 September 2025 (“The Complainant has been requested to, but refuses to provide copies of all documentation and submissions that he intends to rely on at the hearing tomorrow”), the Complainant referred to an email sent to his work email address and purported to be sent to the WRC via the incorrect email address and email domain (.com).

The Complainant submitted that the WRC asked the parties to make submissions. The Respondent repeatedly complained that it did not have his submission. The Complainant submitted that a submission should set out the Respondent’s case with reference to the Payment of Wages Act. A bundle of documents (~234 pages) doesn’t do that, and it is not a submission.

On 26 September 2025, the Complainant emailed the WRC alleging that the case has been seriously prejudiced by the Respondent and its legal representatives obtaining an adjournment on false premises.

Payroll records: The Respondent’s Directors received the full 2024 Accounts Package, including the payroll report (Gross to Net 2024.xlsx), on 26 August 2025. That package was circulated to external lawyers (Brian Clarke and Ailbhe Hennessy of Dentons) who had no standing in relation to the Company in this case, and later to ARQ, the Respondent’s solicitors of record.

This email exchange was included in their own Index of Documents filed with the WRC on 10 September 2025. However, it was removed or not included in their “Book of Papers” of 17 September 2025.

Bank statements: The Respondent had received all bank statements on 26 August 2025. Yet, Counsel told the WRC that the Company “does not have copies of its own bank statements,” only conceding otherwise when pressed by the Complainant during the hearing.

Accountant cooperation: the Respondent alleged its accountants refused to cooperate and would not provide payslips. In fact, no such request was ever made, and the current payroll agent is also the Respondent’s own Company Secretary.

Despite possession of these records, the Respondent and its lawyers portrayed the Complainant to the WRC as engaging in “egregious behaviour” and acting under a “misguided belief” that he could deny access to information. These personal attacks were advanced while concealing the truth: the Respondent already had the very evidence, they claimed, the Complainant was denying access to. The adjournment was secured on this false basis.

It has prolonged the non-payment of the Complainant’s wages and undermined the fair procedures guaranteed in WRC proceedings under Zalewski v Adjudication Officer.

Information available to the Respondent

1.      The Complainant reports to the Board of Directors of the Respondent as its CEO. The Board is regularly updated with information.

2.      10 December 2024 17:20; the Respondent’s Directors received the Company’s General Ledger, covering all accounting since the Company’s inception. This document alone contains all payroll transactions necessary to establish the Complainant’s claim under the Payment of Wages Act.

3.      26 August 2025 11:50; the Board also received the 2024 Accounts Package from the Company’s accountants, DMC Atlantic, via Gyrogy Director Aileen Galvin. This full package of company accounts for 2024 specifically included the 2024 Payroll Report entitled “Gross to Net 2024.xlsx”

4.      26 August 2025 11:09; Mr Phelan received delivery of the Company’s Bank Statements by tracked post. A further statement (August 2025) was delivered on 15 September 2025.

5.      15 September 2025 10:28; the Complainant submits that he provided the WRC with a Table of Information expressly identifying all of these documents; the general ledger, 2024 payroll report, and the bank statements. The Complainant submits that he confirmed the time and date when they were in the Respondent’s possession.

6.      Taken together, these documents represent a full suite of records covering payroll, banking, and accounting. The Respondent therefore had all necessary information available to them relevant to this Payment of Wages claim.

Misrepresentations and character attacks

Despite having this information, the Respondent advanced a false position in escalating fashion. On 10 September 2025 the Respondent’s solicitor wrote to the Complainant’s solicitor at the time and to the WRC, claiming that he refused access to the Respondent’s books and records relevant to its defence of this claim. This letter specifically demanded bank statements and payslip information.

On 15 September 2025, the Respondent’s solicitor wrote directly to the Complainant. They again alleged denied access, alleged the Complainant breached WRC rules, and claimed severe prejudice. The letter purportedly copied the WRC, but it sent to an incorrect email domain (“workplacerelations.com”), raising doubt whether the WRC ever received it.

On 17 September 2025, the Respondent’s solicitor emailed the WRC insisting they could not prepare submissions (after being directly asked by the WRC to do so), because they claimed the Complainant was withholding relevant documents.

On 18 September 2025, at the hearing, the Respondent’s counsel repeated that the Respondent had no payroll information, no bank statements, and no cooperation from its accountants. He claimed the Complainant was to blame for this “unusual situation”.

In all of these communications, the Respondent smeared the Complainant’s conduct, accusing him of “egregious behaviour” and blaming him personally for the supposed absence of records in correspondence and to the WRC.

Concealment of the 2024 Payroll Report

On 26 August 2025 at 11:50, Director Aileen Galvin emailed the 2024 Accounts Package including the 2024 Payroll Report to fellow Directors Paul Phelan and Philip McEnroe, copying the Complainant as the CEO. The package originated from the Respondent’s accountants, DMC Atlantic, and included the payroll report entitled “Gross to Net 2024.xlsx”.

At 11:55, within five minutes of receiving the package, Mr McEnroe forwarded it to Dentons, copying Mr Phelan. Dentons have no standing in relation to the Company or this WRC case.

On 9 September 2025 at 14:58, Dentons forwarded the same package to the Respondent’s solicitors, Ahern Rudden Quigley (‘ARQ’), copying Mr Phelan and Mr McEnroe.

On 10 September 2025, ARQ wrote to Anne Hayes, the Complainant’s solicitor at the time, and to the WRC, asserting that the Respondent “cannot formulate a defence because it has no payroll or accounting records”.

On the same day, as part of their adjournment application, ARQ filed an Index of Documents (23 pages) with the WRC. This index lists the 26 August email from Aileen Galvin as the penultimate item, thereby confirming the Respondents distribution of the 2024 Payroll report with its extended legal team including ARQ as outlined above.

On 18 September 2025 at the hearing, Counsel for the Respondent asserted with great emphasis that this was an unusual situation, and that the lack of records was entirely the Complainant’s fault.

The 2024 Payroll Report is a key document under this payment of wages claim; yet it was deliberately concealed from the WRC. It contains all payslip data including; gross pay, PAYE/PRSI/USC, net pay and employer PRSI, for both employees in 2024. The Complainant’s own records in this report show

·        Consistent salary payments to him until October 2024,

·        Nil entries for me for November and December 2024,

·        Accruals recorded by the Company Accountant for those unpaid months,

·        Continued payments to another employee in November and December 2024.

The Respondent’s Directors distributed the report to its own legal team. The concealment of the payroll report was a joint act of the Respondent and its lawyers.

The only person in the room who did not have a copy of the 2024 Payroll report was the Adjudication Officer. The duty of candour applied equally to the Respondent and to its legal representatives, and both failed in that duty.

Concealment of the bank statements

The Respondent’s’ s bank statements were delivered to Mr Phelan on 26 August 2025 at 11:09 and again on 15 September 2025 at 15:08.

The method of delivery is relevant. The envelopes were tracked but not marked as registered. This gave Mr Phelan the choice to act in good faith. Instead, he concealed receipt, evidently believing there was no tracking. An Post records confirm delivery.

The second delivery occurred the very week that Mr Phelan was preparing submissions for the hearing. It cannot be explained as oversight; it was intentional concealment.

The Respondent specifically requested copies of bank statements on 10 September and repeatedly continued with their complaints about lack of information on 15 and 17 September. At the hearing, Counsel stated that the Company “does not have copies of its own bank statements.”

When the Complainant challenged the Respondent, it admitted to having the bank statements. However, Counsel failed to correct the record, as per his duty. Instead, he pivoted to seeking the Complainant’s personal bank statements.

The concealment of the bank statements was not a matter of oversight. Mr Phelan, as Chairman of the Board, received the deliveries and deliberately withheld them; believing they were not tracked. He then instructed his barrister to advance a false position that the Company had no bank statements. This was a direct breach of candour by the Respondent, and it placed the tribunal in the position of being deliberately misled.

The bank statements, like the payroll report, go directly to the heart of the case: they prove regular salary payments up to 31 October 2024 and complete cessation of payments thereafter, while other employees continued to be paid.

Role of Dentons

The Respondent’s concealment and misrepresentations were orchestrated with the direct involvement of Dentons, who inserted themselves despite not being the Respondent’s solicitors of record.

The 2024 Accounts Package received by Gyrogy’s Directors was immediately forwarded to Dentons. From that point, Dentons had possession of the payroll report and full 2024 accounts. Dentons then chose and instructed ARQ as the Company’s solicitors and selected Counsel (Mr McNamara), thereby controlling the Respondent’s case before the WRC.

Dentons purportedly to act “for Gyrogy Capital Partners Limited (GCP) and Mr Phelan and Mr McEnroe in their capacity as directors of Gyrogy Limited (Gyrogy)”.

[GCP is a 50% shareholder engaged in disputes with the CEO and with the other shareholder, Forge]

These roles are irreconcilable. Dentons are representing a self-interested shareholder while also purporting to represent two directors who are legally bound to act independently and in the best interests of the Company and all its shareholders. Directors only exercise authority collectively as a board. They have no individual authority, nor do two directors acting together constitute the board. In Gyrogy, three directors are required, and the Promoter Director, Ms Aileen Galvin, is essential for quorum.

By collapsing these distinctions and treating two conflicted directors as if they embodied the Company; Dentons enabled concealment of records and the advancement of false statements under oath. This must therefore be understood not as isolated mistakes by ARQ or Counsel, but as a coordinated legal strategy managed by Dentons on behalf of Shareholder GCP. Their conflicted role undermined the Respondent’s duty of candour and calls into question the integrity of all representations advanced in these proceedings.

Impact

The Respondent’s concealment and misrepresentations had serious effects in misleading the WRC to reverse its original rejection of adjournment.

·        Prolonged arrears: the Complainant remains unpaid for over ten months. Each delay lengthens the arrears and deepens the prejudice.

·        Economic duress: The delay is not neutral; it exerts further pressure on him to abandon his position and leave the company he founded.

·        Reputational harm: Through their letters and submissions, the Respondent and its lawyers repeatedly portrayed the Complainant as obstructive and “egregious,” while they themselves concealed evidence.

·        Undermining the WRC: The adjournment was obtained on false premises, and sworn testimony was given that contradicted documents in the Respondent’s possession. This breaches the constitutional standards of transparency, truthfulness, and fair procedures set out in Zalewski v Adjudication Officer.

The Complainant submits that, while he was disappointed that the WRC’s original refusal of an adjournment was overturned at the hearing, and particularly so in circumstances where the Respondent relied on false and misleading evidence, it has at least afforded him the opportunity to place important matters regarding their conduct on the record.

On 14 November 2025, the following written Final Submission was received from the Complainant.

SECTION A — PAYMENT OF WAGES ACT 1991 (Applies to ADJ-00058697 and ADJ-00062314)

Legal test requires the Adjudication Officer to determine:

· Was the Complainant an employee?

· Were wages properly payable to him on the occasions in question?

· Were those wages in fact paid?

· If not, was the non-payment authorised by section 5(2) (for example, by statute, by the contract of employment, or by the written consent of the employee)?

Non-payment of wages is treated as a deduction for the purposes of section 5(1). Once wages are “properly payable”, the employer cannot unilaterally withhold them. Affordability is not a statutory defence.

Employee Status

The Complainant submits that he was an employee of the Respondent from 16 September 2022. This assertion is supported by:  Employment Detail Summaries (Revenue), monthly payslips, recorded payroll payments in the General Ledger, SSA clause 7.1.3, expressly appointing the Complainant as CEO with responsibility for day-to-day operations.

The Respondent repeatedly confirmed the Complainant remained CEO throughout the period of non-payment; including on 3 March 2025 when it stated: “that you remain the CEO and all of the obligations under employment terms and the SSA remain.”

Wages “properly payable”

The Complainant submits that a salary of €225,000 per annum was properly payable during the period from November 2024 to September 2025, based on:

·        SSA Schedule 6 (Business Plan) fixing salary at €225k, pension €24k and Employers PSRI €24k, making a total cost to the Company of €276k.

·        SSA Clause 5.8.1, which expressly protects “arrears of remuneration” owed to promoters under their contracts of employment.

·        The Respondent’s own 2024 Payroll Report, which accrues unpaid CEO salary for November and December 2024.

·        No document exists varying or reducing the Complainant’s salary. While the Respondent was pre-revenue, the Complainant voluntarily drew less than the contractual amount as a temporary cashflow accommodation, not a variation.

The Complainant submits that there was no written consent, no written variation, and no amendment to salary entitlement. The Complainant submit that contract variation cannot arise from informal reduced draws or silence.

Wages not paid

The Complainant submits that the below evidence the non-payment.  

·        The Respondent’s bank statements: last salary payment to the Complainant on 31 October 2024; no further salary payments thereafter, while other employees continued to be paid.

·        General Ledger: regular “C Kelly Salary” entries up to October 2024, none thereafter.

·        2024 Payroll Report (“Gross to Net 2024.xlsx”): shows salary entries for January- October 2024; zero gross pay for November and December 2024; and accrual entries for unpaid CEO salary in those months.

·        Personal bank statements: confirm matching salary receipts until October 2024 and no receipts thereafter.

·        Revenue 2025 Employment Detail Summary: records active employment but nil pay.

The Respondent has not produced any contrary payroll or banking evidence.

The Complainant submits that no salary was paid to him from November 2024 to September 2025. There was no lawful authorisation under Section 5(2) and one of the statutory conditions permitting deduction apply. The Complainant further submits that there is no Irish statute permitting wages to be withheld due to cashflow difficulties, shareholder disputes, governance disputes, breakdown in relationships, or operational disagreements.

The Complainant submits that there was no contractual basis as the SSA contains no clause allowing suspension or non-payment of salary. Instead, it protects arrears (clause 5.8.1).

The Complainant never consented to waive pay. He explicitly objected to unpaid work in his grievances, including 27 February 2025 and 17 April 2025.

The Complainant submits that any reduction in his working pattern in 2025 was forced by the Respondent’s prior unlawful non-payment.

In his grievance of 27 February 2025, the Complainant confirmed he remained CEO; stated he was not resigning; explained he could not continue full-time work without pay; objected to non-payment; and proposed solutions to resolve the crisis.

The Complainant submits that non-payment of wages is a fundamental breach by the employer and an employee is legally entitled to withdraw labour in response. The contract continues until the employer terminates it, which the Respondent did not do. Absence caused by unlawful non-payment does not extinguish wage entitlement.

In response to his grievance 27 February 2025, the Respondent reminded the Complainant on 3 March 2025 “that you remain the CEO and all of the obligations under employment terms and the SSA remain”.

The Complainant’s 17 April 2025 grievance proposed a number of constructive solutions including converting unpaid salary into a loan note to assist the Respondent’s liquidity.

This demonstrates that the Complainant did not waive his salary; he did not accept non-payment; he proposed lawful, constructive solutions. However, the Respondent ignored or rejected all proposals. A loan note request is an explicit acknowledgement that salary is owed — the opposite of consent to variation.

The Complainant submits that the Respondent planned strategy to prevent his wages being paid, and to coerce him under economic duress to agree to waive its rights under the SSA in relation to dilution of shares.

On 2 December 2025, the Complainant furnished another submission, which can be summarised as follows. 

The Complainant reiterated that he was an employee of the Respondent, which was established by the Respondent’s own records, including Revenue Employment Detail Summaries, payslips, payroll entries in the General Ledger and salary lodgements up to 31 October 2024. The Respondent confirmed in writing on 3 March 2025 that the Complainant remains the CEO and his employment obligations remain.

The Complainant reiterated that his remuneration was set at €225,000 per annum from 2023 under Schedule 6 of the SSA Business Plan, to which both the Complainant and the Company are parties. While the Complainant drew €150,000 per annum during pre-revenue periods as a temporary measure, this did not vary or amend the agreed remuneration. No written consent, contractual variation, or Majority Shareholder Consent was ever issued to change the agreed remuneration. Contrary to the Respondent’s submission, the SSA does not grant the Board discretion over Promoter remuneration. Schedule 4 lists remuneration changes as matters reserved for a 75% shareholder majority. The Board is explicitly required to implement the Business Plan as agreed between the shareholders, including the remuneration set out in Schedule 6.

Salary was paid monthly at month-end, with the last payment made on 31 October 2024. No salary was paid for the period November 2024 to September 2025, as shown by bank statements, the 2024 Payroll Report, ledger entries, and Revenue records.

The Complainant noted that the Respondent does not contest employment status and does not contest that wages were not paid. The only issue the Respondent appears to contest is the amount of the agreed remuneration.

The Complainant asserted that the Respondent did not show statutory or contractual authority to make deduction, and did not claim to have a written consent from the Complainant.

The Complaint, again, stated that he only remuneration figure agreed in writing between the Complainant and the Respondent is the salary set out in Schedule 6 of the Subscription and Shareholders Agreement (“SSA”). The SSA was executed on 21 December 2021 and is binding on both the Complainant and the Company. Schedule 6 (“Business Plan approved at Completion”) sets the Complainant’s remuneration at €225,000 per annum from 2023. The Complainant contended that this document post-dates and supersedes the unsigned draft contract from November 2021.

The service agreements referred to in the Completion Clause 3.2.2 of the SSA were not executed at Completion. The SSA was completed without them, meaning any requirement to enter any prior draft service agreement was waived and any warranty falls away. The pre-condition was waived because the Subscriber declined to allow the Company to pay €216,250 in accrued Promoter wages, as recorded in the investor pack prepared by PWC. The Promoters did not become employees on completion but continued as consultants to the Company following completion. They both became employees in September 2022.

No written consent, contractual variation or Majority Shareholder Consent was ever issued to change the remuneration set in Schedule 6. Accordingly, the properly payable wage for the purposes of the Payment of Wages Act is €225,000 per annum, being the only remuneration agreed in writing between the parties.

The Complainant rejected the Respondent’s contention that the employer’s obligation to pay wages disappears once the employee can no longer sustain full-time unpaid work. i.e., once the economic duress made full-time unpaid work impossible. The Complainant asserted that the statutory test remains whether wages were properly payable on the due date, whether they were paid, and whether any statutory, contractual or written authority existed to withhold them. that wage entitlement does not convert into a “no work – no pay” regime where the employer has already ceased paying wages.

Summary of direct evidence and cross-examination of the Complainant

At the hearing, the Complainant reiterated his position as outlined in his written submissions.

The Complainant asserted that the Business Plan that was reviewed and signed off provided for his initial salary of €200,000 and €24,000 in pension contribution, and an increase to €225,000 (at the total cost to the Respondent of €276,000 with the pension contributions and PRSI) from December 2023. The Complainant said that the shareholders agreed the salaries and any change would require their agreement. There was no agreement to any change in the context of his salary. The Complainant said that he drew less that was his entitlement, but the agreement has not changed.

The Complainant stated that he started to work one day per week from 1 March 2025. He said that an expectation that he would work for free was unreasonable.

In cross-examination, the Complainant accepted that he was responsible for the day-to-day operation of the business. It was put to the Complainant that an outside investor got involved and the SSA was entered into on 23 December 2021. The Complainant agreed that he signed up to the SSA. He asserted that all parties entered into the SSA without contracts of employment.

It was put to the Complainant that his email of 26 November 2021 suggested that the Complainant reviewed his contract of employment and was happy with it. The Complainant stated that he reviewed his contract and it was “fine”. It was put to the Complainant that it was precondition of the SSA that the contract of employment was signed. The Complainant asserted that he stated in h is email that he had reviewed his contract not that he was prepared to accept it.

The Complainant agreed that, in the absence of a contract he relied on the SSA for his terms of employment. It was put to the Complainant that the Business Plan Approved as of the Completion Date states that “This document is prepared as an DRAFT of the ‘initial’ business objectives achieving both the earliest revenue generation and positive cashflow positions of the business. Once finalised Dornan & Minehane will prepare the final version that the business will then use as the baseline business plan in establishing the business activities. This version will be appendix to Shareholders agreement.”

The Respondent asserted that it was a draft, projection, guesswork, and that there was nothing definitive about the Complainant’s salary. The Complainant disagreed and argued that salaries and fixed costs are not guesswork, it was a Business Plan approved on completion date. The Complainant asserted that the Plan stated that from December 2023 his salary would be €225,000 with approximately 11% of PRSI and €24,000 in pension contribution, totalling €276,000.

It was put to the Complainant that Schedule 4 of the SSA “Acts requiring consent” states that increasing remuneration of the Promoters required consent. The Complaint argued that the Schedule states that “Increasing the remuneration of the Promoters save for in accordance with the Business Plan” required consent. Business Plan was agreed. The Respondent asserted that the Business Plan was a draft.

It was put to the Complainant that his grievance of 5 November 2024 is not consistent with his WRC complaint and that he never raised any concerns about money. The Complainant replied that he was not looking for more money at that time, he wanted to be left to do his job.

It was put to the Complainant that the first time the Respondent heard from him regarding any arrears was his email of 27 February 2025. The Complainant said that at that stage he was four months without pay.

The Complainant agreed that, in the email, he communicated that he would withhold his service and would move to one day a week working arrangement.

The Respondent raised an issue with the matter of expenses. However, the Complainant clarified that this was a separate matter. He emphasised that his expenses, annual leave and pensions are not issues for the WRC to deal with in this claim.

The Complainant agreed that he did not work for the Respondent from 19 May 2025.

In response to the Respondent’s submission, the Complainant said that it was always his intention to become an employee but if contracts were required, investors would not sign the SSA. The Complainant said that he understood that €200,000 salary meant that the employer would pay PRSI on top of that. He said that if €200,000 is accepted as his salary, it was in line with the Business Plan. He said that he did not waive his salary, he tried to save the company and drew less that he was entitled to. He said that he had to look for another source of income.

Regarding the caselaw relied on by the Respondent, the Complainant asserted that the complainant in that case did not turn up for work. He was not paid for four months so he withdrew his service.

On 17 September 2025, the Respondent forwarded to the WRC a copy of a letter that was sent to the Complainant. In the letter, the Respondent referred to its refused postponement application. The Respondent noted that it remained of the view that it is severely prejudiced as regards its ability to defend the complaint in circumstances where it does not have access to its own books and records which are required in order to ascertain the details underpinning the Complainant’s claim and formulate a defence. The Respondent asserted in the letter that should the case proceed without the Respondent being afforded the opportunity to consider those books and records, it will constitute a breach of its right to fair procedures.

On 28 November 2025, the following submission was received from the Respondent.

Background

The Complainant commenced employment with the Respondent as CEO on 7 August 2020 having incorporated the company on the same date.

By way of Share Subscription Agreement (“the SSA”) dated 23 December 2021, the Complainant and the Respondent, amongst others, agreed that shares in the Respondent company would be purchased by a company called Grentech Vita Ltd (“the investor”) in return for agreed investment sums.

Prior to the SSA, the Respondent was run by the Complainant. On investing in the company, two of the investor’s nominees, Paul Phelan and Philip McEnroe, were appointed as directors to the Board of the Respondent, with Mr Phelan also being appointed chairman of the Board. The Complainant’s appointment as CEO was confirmed by clause 7.1.3 of the SSA:

“Colin Kelly is appointed Chief Executive Officer (CEO) of the Company and subject to the terms of his Service Agreement he shall have charge of all day-to-day operations of the Company reporting to the Board in a timely manner.”

“Service Agreement” was defined in the SSA as follows:

"Service Agreement(s)" means the service agreement(s) in the agreed form to be entered into by each Promoter with the Company on or prior to Completion.”

And “Promoters” was defined as:

“COLIN KELLY of [address] and STEVE BUDGE of [address]”

The Complainant had not put in place a written contract of employment with the Respondent prior to the SSA. It was a term of the SSA that the Complainant would enter into a Service Agreement with the Respondent and that this term constituted a warranty within the meaning of paragraph 1.2 of Schedule 2. On foot of same, the Complainant duly emailed a copy of his contract of employment to Mr Phelan on 26 November 2021, which contract was to be backdated to 7 August 2020 to reflect his date of commencement with the company. This is the contract of employment which was accepted by the Respondent and which governs its employment relationship with the Complainant.

In line with the Complainant’s said email of 26 November 2021, the contract is dated 7 August 2020.

Clause 2.1.3 of the contract of employment provides that the complainant “shall not without the written consent of the Company work for anyone else while in the employment of the Company”.

Clause 4.1 requires the Complainant to report to the Board of the Company.

Clause 6.1 provides that the Complainant’s hours of work are from 9am to 5.30pm Monday to Friday inclusive.

Clause 8.1 and Schedule 1, when read together, provides that the Complainant’s “Basic Salary” was to be €200,000 (gross) per annum.

Clause 8.3 provides that there is no obligation on the Company to make any increase in the Complainant’s Basic Salary.

Despite repeated requests since November 2024, the Complainant refused to provide the Respondent with the books and records necessary for it to defend his first complaint to the WRC of 30 April 2025.

On 17 September 2025, being the eve of the original hearing date, the Complainant furnished the Respondent’s solicitors with his submissions and supporting documentation. On the morning of 18 September 2025, the Complainant furnished further documentation to the WRC and has since furnished additional submissions and documentation on 26 September and 13 November 2025. During the course of his sworn evidence, the Complainant undertook to provide the Respondent with his payslips and redacted relevant bank statements which were provided with his supplemental submissions of 26 September 2025.

These submissions have been prepared in response to the three complaints before the WRC: the payment of wages complaint bearing record number CA-00071205 of 30 April 2025 and the separate complaints pursuant to the Payment of Wages Act 1991 (CA-00075983) and the Terms of Employment (Information) Act 1994, (CA-00075982) of 3 October 2025. These are the only complaints before the WRC and it is only these complaints that the Adjudication Officer has jurisdiction to entertain.

The Complainant’s more recent submissions attack the conduct of the proceedings by the Respondent and its legal representatives to date and, in particular, regarding the successful adjournment application of the first hearing date. Quite apart from the Respondent’s taking issue with the tone and content of the Complainant’s said submissions (which make allegations of misrepresentation and concealment amongst others), it is submitted that they are irrelevant. First, because the adjournment issue is now moot. Secondly, because, in deciding the complaints under the 1991 and 1994 Acts, the Adjudication Officer must only decide whether there has been a breach of the relevant legislation or not.

Without prejudice to the Respondent’s strenuous denial of the Complainant’s unfounded said allegations, it is submitted that the WRC has no jurisdiction to award general or aggravated damages having regard to the conduct of any of the parties whether that conduct occurred either before or after the date that the complaints were filed. This is not an unfair dismissal case under the Unfair Dismissals Act 1977 where the WRC would have a limited jurisdiction to consider the parties conduct leading up to the dismissal and in relation to the mitigation of financial loss. Unlike the 1977 Act, there is no provision in either the 1991 Act or the 1994 Act permitting the WRC to have regard to the conduct of the parties at the time of the relevant breach. Separately, there is no provision in any of the said employment law legislation which allows damages to be awarded to mark the WRC’s displeasure at a party’s conduct during the litigation itself. Rather, it is submitted that the WRC should confine itself to hearing the complaints themselves and the relevant evidence adduced.

Without prejudice to the foregoing, if the Respondent is nonetheless required to address these points regarding its conduct and the conduct of its lawyers leading up to the first hearing date, submissions in rebuttal will be made orally by its counsel. For the avoidance of doubt, the Respondent and its legal team takes grave exception to these allegations made by the Complainant. Otherwise, the Respondent reserves the right to amend and/or supplement these submissions depending on what further information and/or documentation is forthcoming from the Complainant hereafter.

Terms and Conditions of Employment Complaint

For the reasons outlined above, the Respondent submits that it has satisfied its obligations under the 1994 Act.

Without prejudice to the foregoing, if the Adjudication Officer finds that that the Respondent breached its obligation to provide a written statement of the terms and conditions of the Complainant’s employment thereto, it is submitted that, in deciding the level of compensation (up to the maximum 4 weeks threshold), the Adjudication Officer should exercise her discretion in awarding a nominal sum having regard to the Complainant’s contribution to the breach having regard to his capacity as CEO of the Respondent company and his obligation to enter into a Service Agreement as provided for in the SSA.

Relevant period for the purpose of the payment of wages complaints

As regards the complaint bearing reference number CA-00071205, it is agreed by both parties that the complaint can only cover the 6-month period between 1 November 2024 to 30 April 2025.

As regards the complaint bearing reference number CA-00075983, it is agreed that the complaint can only cover the 6-month period between 1 November 2024 to 4 April 2025. Since the period of the first wages complaint covers the period to 30 April 2025, it is submitted that the second one more properly covers the period from 1 May to 3 October 2025.

The WRC does not have jurisdiction to entertain any complaint in relation to unpaid wages that had “accrued” by the 1 November 2024 as the Complainant appears to be alleging in some of the documentation. Such alleged deductions occurred outside of the 6-month lookback period and so are not justiciable.

Agreed Pay

The Complainant alleges that he never entered into a contract of employment but this allegation is disputed by the Respondent. It is clear that he warranted to do so under the terms of the SSA. It is also clear that he acted in accordance with that warranty, he furnished a copy of his final contract by way of email dated 26 November 2021. This contract was accepted by the Respondent. Under that contract, he was to be paid €200,000 per annum gross. It was the Board alone that had the authority to approve any salary raises.

However, the Complainant was entitled to unilaterally reduce his pay to €150,000 per annum without Board approval and that is what he did. There was never any agreement by which the Complainant would “defer” his pay and the Respondent puts the Complainant on strict proof of this allegation. If the Complainant decided to reduce his own pay in the financial interests of the company (of which he was at all material times also a shareholder and director), that was a matter for him alone and that is what he did. Indeed, the Complainant fully accepts and recognises that his salary was €150,000. That is why he did not raise any issue with this salary in 2022, 2023 and most of 2024. The Payroll Summary included in the Complainant’s submissions clearly sets out the position in that regard.

As per the said email and as confirmed in his WRC Complaint Forms, on 1 March 2025, the Complainant reduced his working hours to 1 day per week. It is submitted that from that point until 19 May 2025, the Complainant was only be entitled to 20% of his pay. This is because, on 19 May 2025, he withdrew his services completely as is evidenced by his email of 16 May 2025.

Thus, it is submitted that the Complainant must establish that he was working for the Respondent but not in receipt of pay for the months of November 2024 through February 2025 inclusive and that he was working 1 day per week up to 19 May 2025 but did not receive pay for this period either. The onus of proof is on the Complainant in this regard.

As regards the Complainant’s assertion that his pension or expenses formed part of his wages for the purposes of the complaint, the definition of “wages” in the 1991 Act clearly provides otherwise:

“wages”, in relation to an employee, 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)   (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 and gratuities.

(emphasis added by the Respondent’s representative)

What wages were “Payable”?

It is submitted that, as per the definition of “wages” above, the Complainant is only entitled to payment in respect of wages that were payable to him. If, as is the case here, he decided unilaterally and without Board approval, to initially reduce his services to one day per week, and latterly, to withdraw his services entirely, then his pay must also be reduced pro-rata.

With effect from 1 March 2025, the Complainant went down to a one day week. However, with effect from 19 May 2025, he withdrew his services completely.

The Respondent relies on Ringsend Community Service Forum Clg v Moore PWD2450 where the Labour Court held that the respondent was not obliged to pay the Complainant her wages when she failed to attend for work. Accordingly, no wages were properly payable to her for the relevant period. It is submitted that this case is authority for the proposition that in order to succeed in a complaint under the 1991 Act, an employee must establish that the wages were in fact payable.

The decision in Moore is also supported by an earlier decision of the Labour Court in Athlone Institute of Technology & Anor v Ryan PWD166 where the Court considered the provisions of section 5 of the 1991 Act and noted that the respondent had contended that, by virtue of the complainant’s failure to attend the workplace, it had been entitled to make a deduction. The Court noted that such a deduction was only permissible in accordance with section 5(2)(a)(i) of the 1991 Act if ‘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’. The Labour Court noted that it had not been furnished with a copy of a contract from either AIT or KWETB. Moreover, it had been agreed that the complainant’s contract did not contain an express provision which governed the circumstances in which deductions may be made. However, the Court was satisfied that “it could cogently be argued that every contract of employment must be deemed to contain an implied term that wages are not payable where the employee is absent from work without lawful excuse or authorization”.

Thus, where, as here, the most senior employee in the company, the CEO, unilaterally decided to reduce his working hours initially by four-fifths and then completely, there is a strong argument to be made that wages are not payable. As well as being an implied term, there was also an express term in clauses 4 and 6 of his contract of employment, obliging the complainant to fulfil his duties on a full-time basis, having regard to his seniority.

Conclusion

It is submitted that the complaints should be dismissed in circumstances where there is no cogent evidence as to the alleged deductions from the Complainant’s wages.

At the adjudication hearing, Mr McNamara BL asserted that the SSA was a binding agreement between the parties. It was a term of the SAA that the Complainant enters into an employment contract prior to the signing of the SSA. It was argued that the Complainant tried to retrospectively argue that the fact that he never signed the contract meant that he did not get it. The Respondent asserted that there was only so much the company could do when the CEO who was supposed to sign a contract did not do so. While the Complainant argued that he did not sign it because he had not been paid arrears owed to him, there is nothing in the SAA regarding any consultancy arears. Mr McNamara BL said that the investment in the company was conditional, the Complainant was to become an employee.

Regarding the Complainant’s pay, the Respondent’s position was that as per the contract, the agreed salary was €200,000 gross. The Complainant agreed on his own volition to reduce his salary to €150,000 as per his payslips. He was entitled to reduce his salary. Therefore, it was argued that from November 2024 to March 2025, if there was liability, it was on the basis of €150,000 per annum. From 1 March 2025 to 19 May 2025, the Complainant worked one day per week, albeit there is no record to shaw that he did actually work,  and from 19 May 2025 he withdrew his services entirely. As per the Complainant’s contract, he should work five days per week.

The Law

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

Regulation of certain deductions made and payments received by employers.

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.

Section 5(6) of the Payment of Wages Act, 1991 address the circumstances in which wages which are properly payable are not paid:

(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.

Section 1 Interpretation defines “wages”

“wages”, in relation to an employee, 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 and gratuities.

In Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217), the Employment Appeals Tribunal took the word “payable” to mean “properly payable”, consequently it was not simply a matter of what may have been paid from the outset but all sums to which an employee is properly entitled.

The importance of establishing what remuneration was “properly payable” was emphasised by Finnegan P. in Dunnes Stores (Cornelscourt) Ltd v Lacey [2007] 1 I.R. 478.

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

“36. The provisions of s. 5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the EAT. It was argued that the EAT should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p. 482:-

“I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as a finding is implicit in the determination of the Employment Appeals Tribunal that the appellant agreed to pay to the respondents service pay and a long service increment, then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act of 1991 but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18th September, 2002. In either case there has been an error or law. Accordingly I allow the appeal.”

The High Court made it clear that, when considering a complaint under the Act, an Adjudication Officer must first establish that wages were properly payable to the employee before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Adjudication Officer would then consider whether that deduction was lawful.

It is for the Complainant to make out that the wages payable to him during the period encompassed by the claim are properly payable to him under the Act.

The Labour Court in Hannigans Butchers Limited v Jerko Anders Hresik Bernak DWT 194 held as follows;-

“This Court in Melbury Developments Ltd v. Arturs Valpeters EDA0917, in a case under the Employment Equality Acts, put it clearly in stating, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’ and that ‘The Complainant must first establish facts from which discrimination may be inferred’. While these observations of the Court reference specific requirements under the relevant legislation, the sentiments are equally applicable to the exercise of rights under other Acts covering employment law. Indeed, it is a well-established general rule of evidence to quote Palles CB in Mahony v. Waterford, Limerick and Western Railway Co., (1900)2 IR 273, that ‘…it is a general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief…’”

Time limits

Section 41 of the Workplace Relations Act, 2015 (as amended) prescribes the applicable time limits.

Section 41(6) states:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41(8) of the Workplace Relations Act 2015 provides that, if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The implications of the above provisions were understood by the parties. The Complainant did not seek an extension of the time limit.

This complaint was referred to the Director General of the WRC on 30 April 2025 and, consequently, the cognisable period falls from 1 November 2024 to 30 April 2025.

The Respondent rejects the claim.

There was no dispute that the Complainant was an employee of the Respondent at the relevant time.

The Complainant’s salary was in dispute. The Complainant submitted that his initial salary was €200,000 per annum. He asserted that the Subscription and Shareholders’ Agreement dated 23 December 2021 contained a “Business Plan approved as of the Completion Date” which sets an increase to his salary to €225,000 from December 2023. Therefore, he argued that the amount of salary agreed in writing between the parties for the period of this claim is €225,000. The Complainant submitted that the total cost to the Respondent included contributions towards his pension of €24,000 and PRSI, and would be €276,000.

The Respondent asserted that clause 8.1 and Schedule 1 of the Complainant’s contract, when read together, provide that the Complainant’s “Basic Salary” was to be €200,000 (gross) per annum. The Respondent argued that the Complainant furnished a copy of his final contract by way of email dated 26 November 2021. This contract was accepted by the Respondent. Under that contract, he was to be paid €200,000 gross per annum. While the Board had the authority to approve any salary raises, the Respondent contended that the Complainant was entitled to unilaterally reduce his pay to €150,000 per annum without Board approval and that was what he did.

I have carefully considered the parties’ submissions and the evidence presented. It appears that that this claim forms only one aspect of a wider dispute between the parties. The parties furnished submissions related to various background matters that fall outside the scope of this investigation. For the purposes of this decision only matters relevant to the Complainant’s claim are considered.

The kernel of this complaint is the alleged non-payment of the wages due to the Complainant from 1 November 2024 to 30 April 2025.

On balance, I accept that the Complainant’s initial salary was set at €200,000 gross. This is corroborated by the Complainant’s correspondence to the Respondent dated 17 April 2024 where he refers to his “base salary” of €200,000.

The Contract of Employment exhibited at the hearing states at Schedule 1 “Basic Salary means €200,00 (gross) per annum”. The Complainant reviewed this Contract and in his email of 26 November 2021 did not raise any issue with that figure. He stated:

“Hi Gents,

Just to confirm arrangements for completion if we are all agreed.

…

Employment Contract

1.      Contracts of Employment for CK and SB are attached. [I have reviewed mine – Consider Steve’s to be a draft at this point.]

2.      It is proposed that these will be dated at the incorporation of the Company 7 August 2020.

…

Executing the Documents

If everyone is agreeable on Monday we will PDF the Documents and send them around for Electronic/ Scanned Signatures. We can do wet signatures when we meet if everyone wants to do that.”

I note the Complainant’s assertion that he did not enter into an employment relationship with the Respondent at that time, despite the requirement of the SSA that

“3.2 At Completion, the following shall take place:

…

3.2.2 the parties shall enter into the Service Agreements to which they are to be parties.”

I am not persuaded that the Complainant was entitled to a salary of €225,000 or indeed €276,000 from December 2023. The Business Plan relied upon shows “Gyrogy Projection” and under the heading “HR Costs”, it lists the Complainant’s “projected” salary as of December 2021 at €203,783; December 2022 as €248,000; and as of December 2023, as €276,000.

In my view, a business plan is, by its nature, a planning document, prepared for budgeting, forecasting, or strategic purposes. It represents projections and forecast based on assumptions and cannot be construed as a guarantee or as creating enforceable entitlements in the absence of further action.

No evidence was advanced to suggest that the Complainant’s salary was, in fact, increased in December 2021, December 2022, or December 2023. I, therefore, find that the document dated 23 December 2021 cannot be relied upon as a source of enforceable rights in the context of the Complainant’s salary increase.

Equally, I do not accept the Respondent’s contention that the Complainant unilaterally reduced his salary to €150,000. While the records submitted indicate a payment to the Complainant of €12,500 gross per month (€150,000 per annum), I am not satisfied, in the absence of supporting evidence, that these payments represent a voluntary reduction of his salary by the Complainant.

On balance, and having considered the evidence as a whole, I conclude that the Complainant’s salary was €200,000 gross per annum.

The Complainant alleged that he received no pay from 1 November 2024 and was owed his salary for November and December 2024, and January to April 2025.

With regard to the period from November 2024 to February 2025, I find that the Complainant was not paid any wages and, therefore, is owed €66,666.67 gross for that period (€200,000 /12 x 4).

There was no dispute that the Complainant withdrew his service and informed the Respondent that he would work one day per week from 1 March 2025. He then withdrew his service entirely and did not work for the Respondent from 19 May 2025.

In the matter of Fuller & Ors v. Minister for Agriculture and Minister for Finance [2008] IEHC 95, Gillian J. referred to the following passage from Dean v. Wilson [1909] 2 IR 404 at 409:,

“There was no contract to pay it unless it was earned. If she had not worked at all during the week, though the contract for service remained, she would not have been entitled to any payment; and could it be said that when, being entitled to nothing, she was paid nothing, the non-payment was an offence under the Act?...The non-payment took nothing from her to which, in any view, she had become entitled, or to which, when the week ended, she could have ever become entitled. It was simply withholding payment of what she had not earned, and never could earn.”

In the more recent case of Larkin Unemployment Centre Limited v. Deborah Eustace PWD226, the Labour Court held that an employee must actually work assigned hours for wages to be deemed properly payable for the purposes of the 1991 Act.

The Court pointed out the “obvious fact that if the hours reduced then the amount that is ‘properly payable’ within the meaning of the Act would be expected to reduce also unless some other provision in the contract specified differently.”

In Athlone Institute of Technology (AIT) And Kildare Wicklow Education And Training Board (KWETB) v. John Ryan PWD 166 relied upon by the Respondent, the Labour Court held:

[The Respondent] “has merely stated that the deduction was made because the Complainant was absent from his place of work without authorisation.

That submission should be understood as meaning that the deduction was in respect of an omission on the part of the Complainant, within the meaning of subsection (2)(a) of s.5 of the Act, in failing to attend at his designated place of employment. Such a deduction is only permissible if it authorised by subparagraphs (i) to (vii) of subsection (2) of the section. On the facts of the case subparagraph (i) of subsection (2) is relevant for present purposes, that is to say, “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”.

The Court was not furnished with a copy of the Complainant’s contract of employment. The Complainant told the Court that the only contract that he had received was in respect to his employment with AIT. The Court was told by the representative of AIT that KWETB was the Complainant’s employer and that he had been furnished with a contract of employment by the KWETB. However no such contract was produced.

It was agreed that whatever contract governed the Complainant’s employment it did not contain any express provision concerning the circumstances in which his contractual salary could be reduced or in which deductions could be made from that salary. Nevertheless, it could cogently be argued that every contract of employment must be deemed to contain an implied term that wages are not payable where the employ is absent from work without lawful excuse or authorisation.”

In the absence of any other documentary evidence, I can only rely on the Contract of Employment which the Complainant reviewed and raised no issues with. In his email of 26 November 2021, he confirmed that he had it reviewed and it should be “dated at the incorporation of the Company 7 August 2020.” He raised no issues whatsoever with the contents of the document running some 27 pages.

The Contract stipulated at clause 6 that the Complainant’s normal hours of work are from 9am to 5.30pm Monday to Friday inclusive. The contract further states:

“However, you will be expected to work such hours as are necessary to ensure the fulfilment of your job function and proper performance of the duties, including at weekends and beyond normal business hours. You determine your own working hours for the purposes of section 3(2)(c) of the Organisation of Working Tie Act 1997. You are entitled to rest breaks in accordance with the Organisation of Working Time Act 1997.

6.2 Save where on authorised leave (for holiday, or sickness or other reason) and save as modified by the provisions of this Agreement where you are placed on Garden Leave or suspended, your responsibilities with the Company will be such that you will devote the whole of your time, attention and ability during your hours of work to the Company (or where applicable any Group Company) to the performance of your duties under this Agreement.

6.3 From time to time, you may be required I travel and/or work such additional time outside normal core hours as may be required to complete your responsibilities without additional remuneration, holidays or leave.  “

The contract of employment sets out the Complainant’s core hour of work as 42.5 hours per week (including breaks) in exchange for a salary of €200,000 gross.

Based on the Complainant’s evidence, he withdrew his service and reduced his hours of work to one day from 1 March 2025 and did not perform any work from the Respondent from 19 May 2025. Consequently, the Complainant was entitled to a portion of wages (one fifth of his weekly wage) for the period from 1 March 2025 to 18 May 2025 and had no entitlement to any wages in the period from 19 May 2025 to 30 April 2025.

I declare this complaint partly well founded.

Taking into consideration the evidence of the parties, the oral and written submissions and the documentation furnished to the WRC, I am satisfied that the Complainant was entitled to the following:

·        A payment of his wages for the months November and December 2024, and January and February 2025 at the rate of €16,666.67 per month (totalling €66,666.68 gross).

·        A payment of one day per week for the period of 8 weeks and 4 days from 1 March 2025 to 30 April 2025 (a weekly wage of €3,846.15/5 equalling €769.23 x 9, totalling €,6,923.07 gross).

I direct the Respondent to pay the Complainant the sum of €73,589.75 gross.

Non-payment of wages – withdrawn service-