Complainant

Respondent

Parties

Elisha Gan-Rosetes

Declan O’Dea and David Fitzpatrick t/a Tarahill Properties  

Representatives

N/A

N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00072909-001

27/06/2025

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

CA-00072909-002

27/06/2025

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

CA-00072909-003

27/06/2025

The Complainant worked as a waitress / bar staff for the Respondent from 18 March 2025 until late May / early June 2025. She earned €14 (gross) per hour and worked an average of approximately 18 hours per week.

The Complainant submitted that she did not receive her minimum notice period when she was dismissed; she did not receive her accrued paid holiday / annual leave following her dismissal; and that she was unfairly dismissed for exercising her rights under the National Minimum Wage Act. The Respondent denies the allegations in full.

The Complainant provided written and oral submissions.

Complainant – Oral Evidence:

The Complainant outlined that she worked as a waitress / bar staff for the Respondent, a steakhouse and bar, for approximately three months. In this role, she prepared drinks; took stock; took care of guests; and worked with other members of staff.  

The Complainant submitted that according to her contract, she was entitled to one week’s notice, before she was dismissed and / or salary in lieu of any period of notice. She stated that she was dismissed without notice. She believes that she is due €200 / €300.

The Complainant submitted that she did not receive pay for annual leave that she had accrued. She calculated this as being approximately €244 gross ((218 × 0.08 = 17.44 hrs) at €14/hr).

The Complainant submitted that she had raised concerns about two hours of pay that were missing from a previous shift. She said that she had messaged the Respondent about it on “WhatsApp”. The Complainant later amended her position to state that she was missing 30 minutes of pay from a previous shift.

The Complainant said that the Respondent blocked her on “WhatsApp” and later dismissed her without notice.

The Complainant submitted that she was in college at the time and that she was not available for all shifts. The Complainant submitted that she informed Mr. Fitzpatrick in advance when she was unavailable for a shift.

Cross -Examination:

The Complainant indicated that she had nothing to say in response to the Respondent’s calculations which outlined that she worked 212.5 hours in total.

The Respondent provided written and oral evidence.

Mr. David Fitzpatrick – Oral Evidence:

Mr. David Fitzpatrick, a Respondent Partner, outlined that the Complainant was hired, on a part-time basis from 18 March 2025 and that she received a contract of employment. He referred to the same contract and noted that under Clause 6.2, the Complainant was required to comply with various rules and that under Clause 4, the Complainant had a probationary period of six months.  

Mr. Fitzpatrick outlined that the Complainant often turned down shifts, such as on Saturdays, which is the Respondent’s busiest day. He outlined that the Respondent therefore had to hire another part-time employee. He outlined that he had 24 members of staff. He stated that he “regularly” received lengthy text messages from the Complainant in which she challenged the rules and regulations. He said that as a result, he blocked her from the “WhatsApp” group as she was engaging in “too much drama”. He said that it had nothing to do with dismissing her.

Mr. Fitzpatrick outlined that the Complainant was not due any tips. He submitted that the Complainant “hoodwinked” the Manager and sought double-payment of the same tips. He said that as a result, he questioned her honesty. He stated that he did not give her more hours, but said that he had not dismissed her.

He submitted that the minimum notice clause does not apply to the Complainant as she worked different hours from week to week. He referred to the word “salary” in Clause 16 of her contract of employment. He again submitted that the Complainant was not dismissed and that she was just not scheduled for any hours.

Mr. Fitzpatrick accepted that the Complainant was due pay for accrued annual leave. He submitted that the Complainant is due €238 for the same. He submitted that he did not receive a holiday pay request from the Complainant. He stated that he had had not realised that when he blocked her on “WhatsApp”, he had also blocked her email.

Cross-Examination:

Mr. Fitzpatrick stated that the Complainant regularly turned down shifts. He stated that she was frequently unavailable to work on Fridays and Saturdays.

Mr. Declan Hyland – Oral Evidence:

Mr. Hyland, the Bar Manager employed by the Respondent, outlined that the main concern was the week that the Complainant finished her job. He stated that she came into the premises on a Tuesday, seeking payment for her tips, when she had already received that tips payment of €30 on the previous Friday or Saturday.

He stated that the Complainant’s last day was 30 May 2025.

Cross-Examination:

Mr. Hyland stated that tips are paid out on a weekly basis and that this is usually done by him or Paulo.

He stated that the Complainant had been “tipped out” and that she returned to seek payment again.

He stated that there was no “sign off” sheet for tips.

CA-00072909-001 – Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973:

The Law:

Notice entitlements are set out under section 4 of the Minimum Notice and Terms of Employment Act 1973, as amended (the “MNTEA”), as follows:

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week”.

I note that the Complainant’s contract of employment states:

“Your contract of employment may be terminated at any time by either party giving the other one week’s written notice or such greater notice as is required by statute.”

The Complainant’s contract of employment also states that the Complainant is entitled to “salary in lieu of any period of notice”.

Findings and Conclusion:

The Complainant submitted that according to her contract of employment, she was entitled to one week’s notice, before she was dismissed and / or salary in lieu of any period of notice. She stated that she was dismissed without notice. She believes that she is due €200 / €300. The Respondent submitted that the Complainant had a probationary period. The Respondent further submitted that the Complainant was not dismissed and that she was just not allocated any shifts.

I note that the Complainant was not rostered from late May 2025. I also note that in the Respondent’s submissions dated 26 August 2025, the Respondent states: “The signed contract by Elisha stating her probation period of 6 months, I decided not to continue this after 12 weeks for various reasons”. In the circumstances, it appears to me that the Complainant was dismissed.

The Complainant’s contract of employment states that the Complainant is entitled to one week’s written notice or “salary in lieu of any period of notice”. The same contract does not stipulate a minimum service period.  

In the circumstances, I find this complaint well founded. I direct the Respondent to pay the Complainant one week’s pay by way of compensation. This amounts to €238.

CA-00072909-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997:

The Law:

Pursuant to section 19(1) of the Organisation of Working Time Act 1997, as amended, (the “OWTA”), an employee is entitled to the following paid annual leave:

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

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

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

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

Section 23 of the OWTA provides for the payment of compensation to the employee for loss of annual leave on cessar of employment.

Findings and Conclusion:

It was common case that the Complainant had accrued annual leave for which she had not been paid.  The Complainant calculated this as being approximately €244 gross. The Respondent stated that the Complainant was due €238.

In the circumstances, I find that the complaint is well founded. I note that the right to annual leave is derived from the Working Time Directive. In Von Colson & Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891, the Court of Justice of the European Union made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions. Pursuant to section 27(3) of the OWTA, I order the following:

·            The Respondent to pay the Complainant €238 gross for the financial loss which the Complainant suffered; and

·            The Respondent to pay the Complainant compensation in the amount of €238 (approximately one week’s pay) for the breach of the Complainant’s statutory rights.

This award is just and equitable having regard to all the circumstances.

CA-00072909-003 – Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977:

The Law:

Section 36 of the National Minimum Wage Act 2000 as amended, expressly prohibits an employer from taking any prejudicial action, including dismissal, against an employee because they exercised their rights under the National Minimum Wage Act. The same section outlines that a dismissal in those circumstances shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 1993, to be an unfair dismissal.

Findings and Conclusion:

In her Complaint Form dated 27 June 2025, the Complainant indicated that she was unfairly dismissed for exercising her rights under the National Minimum Wage. In the course of the Complainant’s evidence, she outlined that she was taking issue with 30 minutes’ pay which was not included in her payslip. The Complainant provided no evidence as to how she was unfairly dismissed for exercising her rights under the National Minimum Wage Act.

In the circumstances, I find that the Complainant was not unfairly dismissed.

CA-00072909-001 – Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973:

For the reasons set out above, I find this complaint well founded. I direct the Respondent to pay the Complainant one week’s pay by way of compensation. This amounts to €238.

CA-00072909-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997:

For the reasons set out above, I find this complaint well founded. I order the following:

·            The Respondent to pay the Complainant €238 gross for the financial loss which the Complainant suffered; and

·            The Respondent to pay the Complainant compensation in the amount of €238 (approximately one week’s pay) for the breach of the Complainant’s statutory rights.

CA-00072909-003 – Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977:

For the reasons set out above, I find that the Complainant was not unfairly dismissed.

Minimum Notice & Terms of Employment Act, 1973, Organisation of Working Time Act, 1997, Unfair Dismissals Act, 1977.