Complainant

Respondent

Parties

Katie  Mernagh

Laura Celine Patton trading as  Alphabet Bookmakers

Representatives

Albert Deere

Hugh Hegarty, Peninsula Business Services Ireland

Act

Complaint Reference No.

Date of Receipt

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

CA-00071107-001

27/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00071107-004

27/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00071107-007

27/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00071107-008

27/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977

CA-00071107-009

27/04/2025

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

CA-00072741-001

24/06/2025

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

CA-00072741-002

24/06/2025

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

CA-00072741-003

24/06/2025

The complainant was employed as a Retail Betting Assistant working variable hours from 3rd May 2023 to 20th March 2025 when she resigned her post. She claims constructive dismissal. She also claims Sunday premiums, statutory sick leave underpayment, public holiday pay, compensation for rest breaks and compensation for not being issued with a contract of employment.

The respondent denies all complaints in full.

Summary of Ms Mernagh’s Evidence

Ms Mernagh said she worked long shifts without rest breaks. She initially worked jointly with Ms. Patton in the bookmakers shop without an issue. Then Ms. Patton stepped back from working in the betting shop, and she was left to work on her own. It was not feasible to take breaks from her workstation nor was a break arranged for her.

She said she did not receive payment or a day in lieu of a public holiday at Christmas having queried this with Ms. Patton.

She said she asked for a contract and never received one and had no way of checking her Sunday premium. She normally worked around one Sunday per month.

She said she approached Ms. Patton at the end of October 2024 on some grievances. She was supplied with kitchen utilities and told that if she was not happy, she should look for an office job. She said she used to work longer weeks and then reduced to 30 hours. After she returned from two weeks sick leave there was a lot of tension. She was paid statutory sick leave of €100 for one day and €272 for three days.

She said she only got 17 hours work on the week she returned from sick leave. This included a day in another bookmaker shop. She asked for two days holiday pay to make up for the hours she lost which was refused. She said she heard from customers that Ms. Patton did not want to work with her. She put text messages into evidence as she said this was the only form of communication in the employment. She said the text messages made it clear to her that Ms. Patton wanted her to leave and get another job.

When she resigned there was a delay with her final payment of wages. She needed a letter for Department of Social Protection which was also delayed so it was seven weeks until her entitlements were sorted.

Under cross-examination by Mr Hegarty, she was asked whether all communications were by text and if there were other texts with requests for a change in hours which were always facilitated. She replied that text messaging should not be the form of communication in a workplace.

It was put to her that evidence would be given that a contract was left for her in an envelope in the bookmakers and she never returned a signed copy. She said she did not receive this contract. A contract was produced and the complainant was allowed time to review it. The complainant denied receiving this contract.

It was put to her that she was paid the statutory sick leave of 70% of her daily rate calculated from the rostered hours. She replied that all she knew was that the figures did not add up.

It was put to her that she was paid 10c above the minimum wage which was a composite rate to include Sunday work. She replied that she had no contract and was unaware of her Sunday entitlement.

It was put to her that she went outside for cigarette breaks. She replied that she was still working as once customers arrived, she returned immediately to her workstation.

When asked about mitigating her loss through job applications, she gave testimony that she started a new job in July 2025, on higher earnings. She said that she has been looking for alternative employment since December 2024.

Complainant’s Closing Submission

Mr Deere submitted that the respondent breached legal obligations when not issuing a contract, and not providing for rest breaks. It was also submitted that the statutory sick pay was incorrect as the complainant was left short an estimated €140.

On the constructive dismissal complaint, he submitted that the complainant’s hours were reduced after sick leave and that the text messages clearly signalled that the complainant should leave and take up alternative employment. He said that the complainant suffered severe financial hardship when her employer delayed making final payments and finalising the employment termination for the Department of Social Protection. Mr Deere concluded by referring to some case law.

Summary of Ms Patton’s Evidence

Ms Patton said she advertised the post and hired the complainant. She worked 22 hours per week, and this increased to 33/34 hours per week. The current hours were over three long days which suited the complainant. She confirmed that the complainant worked some Sundays. When the rate of pay was queried, she confirmed to her that it was normal pay as she was paid above the minimum wage.

She said she left two signed contracts in an envelope for the complainant to collect, sign and return. On rest breaks she said the complainant raised this in October 2024 and requested a meeting. In response, she supplied a microwave and air fryer which were never used. She said that the policy on breaks was for staff to report to her if they could not get a break. She said as the shop was often quiet, there were opportunities for breaks.

After the complainant took sick leave, she inputted the sick cert and rostered hours worked and paid what was due. She said the entitlement was 70% of pay up to a maximum of €110 per day.

She said that the complainant frequently asked for a change in hours and was facilitated. She said she sometimes did not know if the complainant was going to turn up which caused issues in providing cover.

She said the complainant was on sick leave from 13th February 2025 and when she returned, she got 18 hours as she returned mid-week. She worked one day in Castledermot. She was asked to pay holidays to top up the wages and she did not agree to this.

She asked staff to keep some leave for Christmas as shops closed for a few days and she wanted to give time off when requested. She said there was a payment made which covered the Christmas public holiday. She said the complainant had 20 hours holidays left and she paid her 39 hours for holidays.

She did not understand the complainant’s fuss with this temporary reduction in hours as she had previously facilitated the complainant where possible. When the complainant gave her a resignation letter, she sought HR advice. She wrote a letter to the complainant inviting her to submit a formal grievance and gave time for her to retract the resignation. Prior to resigning, she felt the complainant did not want to work. She said that as she now knew the complainant was looking for alternative work from December 2024, that this made sense as she knew that there was something not right with the complainant around that time.

Under cross-examination, Mr. Deere asked why she did not follow up on the contract of employment if it was not returned signed. She replied that she should have followed up on it.

She was asked about the public holiday, rest breaks, and her duty of care to staff. She replied that the public holiday payment was made, the shops were not always busy, and she did not accept that she did not care for staff and was always contactable by phone.

She was asked how grievances were submitted and whether text messaging was appropriate. She replied that she was contactable, and she responded to staff on any issues raised.

She was questioned on her treatment of the complainant and the content of text messages. She replied that she was under pressure with providing cover and said she sent the text message out of  frustration. She clarified the hours worked by the complainant from December 2024 which ranged from 21 to 29 hours.

Respondent Closing Submission

Mr Hegarty submitted that the complainant has not substantiated the complaints as no pay slips were provided or opened in evidence. There was no proof of a non-payment for a Public Holiday at Christmas or that the statutory sick leave was underpaid. It was submitted that the contract stated that there was a composite rate for Sunday work.

There was no evidence provided of reduced hours and there was no formal grievance submitted prior to resignation. The respondent had obtained HR advice and invited grievances and gave time to retract her resignation. The complainant provided no proof of how she mitigated her loss in applying for jobs. It was submitted that she was seeking alternative employment from December 2024 and that she had only obtained employment in July 2025.

CA-00071107-008- Unfair Dismissal Complaint

The Law

The definition of “dismissal”, in relation to an employee, means—

(a) -

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,…

As the fact of dismissal is in dispute, the onus of proof is on the complainant to justify the reasons for terminating her employment. It is common case that there is a higher threshold to prove a constructive dismissal. There is a requirement to show the contract was breached and/or that the employer acted so unreasonably that the only option was to resign. Prior to resignation, the onus is on the complainant to use the grievance procedure to put management on notice of the issues and allow some time for resolution.

Contract Test

There is a conflict in evidence between the parties as to whether a contract of employment issued. Regardless of whether a physical contract existed, there is an implied contract based on the terms of employment over the period.

Hours of Work

The hours of work fluctuated during the employment, and this often arose at the complainant’s request. On her return from sick leave to reduced hours she sought to supplement her income through annual leave days. This was refused. I am not satisfied that this was a breach of contract, particularly as her hours often fluctuated.

Text Messages

Around this time matters escalated in that the complainant alleges Ms. Patton did not want to work with her. Ms. Patton sent inappropriate text messages. Ms. Patton said the content was due to frustration as cover arrangements impacted on other staff.

Rest Breaks/Sunday Premium/Public Holiday 

The complainant gave testimony that she raised the rest breaks issue which culminated in kitchen equipment being installed. She had also raised the Sunday working and public holiday issues in text messages which Ms Patton replied to.

The above matters and others were then listed in the complainant’s resignation letter.

I am not satisfied that the implied contractual terms were breached to an extent where the complainant had no option but to resign. Although there were some tensions on terms of employment, this is normal enough in any workplace.

Reasonableness Test

The complainant opened text messages in evidence which suggested that she find another job if not happy. These text messages were not disputed although Ms Patton said they arose out of frustration with the complainant’s repeated requests. Despite the deterioration in the employment relationship, once the resignation letter was received there was a timeline offered to submit a formal grievance and reconsider the resignation. This invitation was not taken up.

To ground a claim of constructive dismissal, it is paramount that grievances are raised to allow for an opportunity of resolution. Although the complainant raised issues through text and received responses, she did not submit a formal grievance to escalate her complaints. On resigning she was invited to raise the issues formally. She did not do so. In Conway v. Ulster Bank Ltd UD474/1981 it was held that the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints. For clarity, I do not consider the text messages on public holidays, Sunday working and other issues as formal grievances. These were framed as questions and even though the complainant was obviously not satisfied with the responses, they were still answered. The onus was then on the complainant to escalate these issues and listing them on her resignation letter is not sufficient, in my view.

As per Berber v. Dunnes Stores [2009] IESC 10, the employers conduct must leave the employee with no real option but resignation. Although Ms. Patton’s text messages were inappropriate, there was an opportunity to resolve the grievances. I am not persuaded that the complainant had no other option but to resign. Another influencing factor is that the complainant had been seeking alternative employment since December 2024, and the really contentious issues relied upon for resigning did not arise until February/March 2025.

For the reasons outlined, I find that the complaint of constructive dismissal is not well founded. I decide the complainant was not unfairly dismissed.

CA-00071107-001- Sunday Work Complaint

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

The complainant gave testimony that she was unaware of her entitlement for Sunday work. She put into evidence text message queries sent to the respondent. As I have decided that there was an issue with her receiving her particulars of employment, she was unaware of whether this section of the Act was being complied with. The Labour Court in Noonan Services Group Limited v Festeu DWT208 held that unless the employee is advised in writing that the rate of pay includes a Sunday premium, then the employee is entitled to pursue a claim under section 14 of the Act.

In awarding compensation, I am factoring in that the complainant only worked occasional Sundays.

I find this complaint well founded. I order the employer pay to the employee compensation of €200.00. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA-00071107-004- Statutory Sick Leave Complaint

The complainant gave testimony that she thought her payments did not add up. The complainant did not provide the average hours worked over the previous thirteen weeks. Ms. Patton outlined the weekly hours since December 2024 which showed a variation from week to week. Ms. Patton gave testimony that she inputted the information into the payroll package and paid the amounts accordingly.

In the Labour Court Decision of PMc Painting Contractors Ltd v Patriycja Kwidzinska DWT 224 though no records were available from the employer, there was still an onus on the employee to present the specific occasions when breaches of the Act occurred.

As the complainant has not provided the hours worked in the previous thirteen weeks, it is not possible to calculate whether the correct amounts were paid or not.

As the complaint has not been substantiated, I find the complaint not well founded.

CA-00071107-007- Terms of Employment (Information) Act Complaint

The complainant stated she received no contract over the course of her employment. The respondent stated that a contract was left in an envelope to sign. The purported contract provided by the employer at the hearing was unsigned by the employer. It was stated that there was no other signed and dated copy.

Section 3 (4) of the Act states-

 4) A statement furnished by an employer shall be signed and dated by or on behalf of the employer.

As the contract was not dated or signed by the employer, I find that there has been a breach of the Act.

As per Section 7 of the Act, there is provision to pay the employee compensation of such amount as the adjudicator considers just and equitable having regard to all the circumstances but not exceeding 4 weeks’ remuneration. I consider this to be a serious breach, particularly as the lack of a valid contract contributed to the confusion on the complainant’s entitlements. As the contracted hours changed several times, these changes should also have been notified in writing to the complainant.

I declare that the complaint well founded. I order the employer pay to the employee compensation of €1,000.00. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA-00071107-009- Protection of Employment Act 1977 Complaint

This complaint is misconceived as the Act provides for procedures on collective redundancies. There was no evidence presented that engaged this Act.

I find the complaint not well founded.

CA-00072741-001- Payment under Organisation of Working Act Complaint

It is unclear from the narrative on the WRC Complaint Form or from the testimony what this complaint relates to. I am making the presumption that it relates to the payment of monies owed on the cesser of employment.

Under the circumstances of the complainant’s resignation, with additional time offered to submit a formal grievance, there was a short delay before the final wages were paid. I am satisfied that this delay was not a breach of the Act.

I find the complaint not well founded.

CA-00072741-002- Public Holiday Complaint

Section 21 sets out entitlements in respect of public holidays:

21. (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely-

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay;

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

There is a conflict in evidence as to whether a payment was made for a public holiday over the Christmas period. The complainant opened in evidence text messages where she queried this issue and the response on its face did not appear to adhere to the statutory provisions. There was also no evidence presented by the respondent to show that this payment was made.

I find the complaint well founded. I order the employer pay to the employee compensation of €120.00. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA-00072741-003- Rest Breaks Complaint

Section 12 sets out the entitlement to rest and intervals at work.

12. (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

The complainant gave testimony that she did not get rest breaks. The respondent’s testimony was that breaks could be taken when the shop was quiet. Under the policy, Ms. Patton should be contacted if breaks are not taken.

Section 25 (1) of the Act requires an employer to retain records to show compliance with the Act. Although each case is determined on its own evidence, ultimately it is the employer who is responsible for ensuring compliance with the Act. In Tribune Printing & Publishing Group v GMPU, DWT046/047, the Labour Court set out the employer obligations to have proper procedures in place for employees to take appropriate breaks.

I find the complaint well founded. I decide it is just and equitable to require the respondent to pay the complainant compensation of €500.00. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA-00071107-008- Unfair Dismissal Complaint

I find that the complainant was not constructively dismissed. I decide the complainant was not unfairly dismissed.

CA-00071107-001- Sunday Work Complaint

I find the complaint well founded. I order the employer pay to the employee compensation of €200.00. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA-00071107-004- Statutory Sick Leave Payment Complaint

I find the complaint not well founded.

CA-00071107-007- Terms of Employment (Information) Act Complaint

I declare the complaint well founded. I order the employer pay to the employee compensation of €1,000.00. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA-00071107-009- Protection of Employment Act Complaint

I find the complaint not well founded.

CA-00072741-001- Payment under Organisation of Working Time Act Complaint

I find the complaint not well founded.

CA-00072741-002- Public Holiday Complaint

I find the complaint well founded. I order the employer pay to the employee compensation of €120.00. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA-00072741-003- Rest Breaks Complaint

I find the complaint well founded. I decide it is just and equitable to require the respondent to pay the complainant compensation of €500.00. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

Constructive Dismissal, Organisation of Working Time Act