Complainant

Respondent

Parties

Anne  Mullen

Mark O’Neill

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00069518-001

24/02/2025

The Complainant stated that she was employed with the Respondent from 1 June 2021 until 16 February 2025 when her employment was terminated by the Respondent.  The Complainant contended that the reason given for her dismissal was that the Respondent claimed he was unhappy with her work and wages.  She contended that she was not given any warnings and was unfairly dismissed from her position.

The Respondent refuted the claim in its entirety and contended instead that the Complainant was unwilling to make changes requested by him to support the viability of the business.  He further contended that he had issued both verbal and written warnings and that he had sent messages and emails to advise of wrongdoing but received no response.

In her complaint form, the Complainant stated that during her employment she never received a payslip. She submitted that after approximately three months, she asked for these, that it took a few days but when she received them, they didn’t look right.

She submitted that she received those payslips on 8 February 2024 and the next day, she was handed an envelope entitled “payslips” but that on opening that envelope a few days later, she discovered that it was notice of termination of her employment.

On that particular week, the Complainant submitted, she did not receive her wages, that she tried to contact the Respondent but that he ignored her texts and calls. She then emailed him and received an email back saying that she owed him money which she submitted was impossible.  She submitted that she later learned that he did not register her as an employee with revenue until early Jan 2025 and that therefore he wasn’t paying over her tax, usc etc. She further submitted that when her tax free allowance went up in Jan 2025, her wages didn’t change.

The Complainant submitted that when she finished up on 16 February 2025 her wages went into her account on 18 February but that she received no payslip and the wages received did not equate to what she was due.  The Complainant advised that she was never given any verbal or written warnings, nor did the Respondent ever discuss any disapproval of her work.

Representations on behalf of the Complainant

Mr. Hughes advised that Mr. O’Neill took over the business in late November and that staff were told that the business was taken over as a going concern.  He stated that the staff moved directly from one employer to another with no break in service and that no new contracts of employment were issued. He stated that soon after the Complainant was asked to provide suggested new menus and that she sent them immediately but received no response. He advised that a lot of communication took place via WhatsApp and that she did receive a message saying, “looks good talk Thursday”.

Mr. Hughes stated that in January 2025 the Respondent employed a new porter and terminated the employment of 3 other part-time staff.

Witness evidence – The Complainant:

The Complainant gave evidence that in early 2025 she began to look for her payslips.  She stated that she had not received pay for 2 weeks and that she had not received any payslips since the Respondent took over the business.  She advised that in the cours of 11 weeks working for the Respondent she only received 4 payslips and she confirmed her view that the reason for her dismissal was because she was “pushing” for payslips.

The Complainant advised that on 9 February 2025 the Respondent left an envelope marked “payslips” with another member of staff and that when she opened it a few days later she found that the envelope contained a letter dismissing her from employment.

She further advised that the Respondent had stated that the menus were costing money but that as of 20 March those same menus were still operating.

The Complainant stated that in order for a dismissal to be fair there needed to be proper cause for the dismissal and there needed to be a fair process based on natural justice.  She stated that if the Respondent had issued her with a verbal warning there should be some documentary evidence to support that position.  She gave evidence that she never received a letter of invitation to a disciplinary meeting, no disciplinary meeting ever took place, there was never an outcome of a disciplinary meeting, and there was no verbal or written warning issued to her.  Instead, she stated, she received a letter of dismissal without any recourse to any process, and she was given no right of appeal of that decision.

The Complainant confirmed that the restaurant opened on Sundays at 12.30 pm and that there was always a roast available on Sundays.  She stated that she did not accept Mr. O’Neill’s numbers in terms of attendances, that there was always a lot of “walk-ins” and that there could be up to 250 customers on a Saturday and Sunday.  She stated that while the dining room held 80, there was a constant flow of customers coming and going.

Cross examination of the Complainant

Mr. O’Neill enquire of the Complainant if the numbers were as good as she suggested and was reflected in turnover in the till why would he want to make changes.  The Complainat responded that the number she was describing were the numbers that were reflective of the time of the previous owner.  Mr. O’Neill asked the Complainant to clarify if she was suggesting that the nunbers dropped when he took over.  The Complainant replied that yes, he had let go staff and that the locals had stayed away as a result.

In response to queries from the Adjudication Officer the Complainant confirmed that she had been made redundant by the previous employer on 21 November 2024 and that she had received the redundancy payment and accepted same.  She also confirmed that the previous owner and the new owner had met with staff and confirmed that the Respondent was the new leaseholder of the business.

Concluding Remarks

Mr. Hughes reminded the hearing that there was no break in service for the Complainant between both employers and that the Respondent had not issued any new contract of employment.

Post Hearing Submission

At the request of the Adjudication Officer the Complainant provided the following documents to the WRC in September 2025:

·       4 Payslips from Smugglers Rest (only 4 received by the Complainant)

·       Payslips from another employer where she gained short term temporary employment following her dismissal between 10 April 2025 and 1 June 2025

·       Screenshot of correspondence between the Complainant and the Respondent where he asked her for details of her salary.

As part of her post hearing submission the Complainant responded to the matter of the transfer of the business.  She submitted that when the Respondent took over the business, all staff were advised that there would be no changes to their terms and conditions, and that it would be "business as usual". She submitted that this would explain why staff continued working without interruption. She advised that none of the staff were interviewed by the Respondent and that he did not issue new statements of terms of employment or new contracts. She submitted that it was assumed that her old contract continued on. The Complainant drew attention to the correspondence between her and the Respondent where he asked for details of her salary and submitted that this further indicated that there was a transfer of undertakings when the Respondent took over the running of the business.

The Respondent did not provide any written submission, but Mr. O Neill outlined the Respondent position at hearing.

Witness evidence – Mr. O’Neill

Mr. O’ Neill gave evidence that the Complainant had only been in his employment for a short span of time of approximately 11 weeks.  He stated that initially he met all staff that were employed by the previous owner on an individual and on a collective basis and clarified with them that he was taking over the business.

He stated that he commenced ownership of the business on 22 November 2024 and that one week into running the business he began looking at the menus as he believed the menu needed to be cutback in order to make the business viable.  He outlined that he spoke to the Complainant and asked her to introduce new items to the menu.  He advised that he invested in new equipment to make her work easier.  He advised that when he asked her to introduce new meat choices she responded that those items wouldn’t work in Clogherhead.  Mr. O’Neill acknowledged that the Complainant had a lot of experience but that he wanted to try out new options.

Mr. O’Neill gave evidence that he also discussed staffing levels with the Complainant.  He stated that there was one full time member of staff shelling prawns and that he considered this to be a very expensive way of providing prawns as a menu’s choice.  He stated that he asked the Complainant to purchase shelled prawns but that she refused to do that as she was of the belief that it would compromise the quality of the food.

Mr. O’Neill advised that he had noted that there was a part-time chef working with the Respondent and that on a Thursday night there was no more than 30 meals being sold and that sometimes this was reduced to 15 meals.  He stated that he had discussed this with the Complainant and that he had expressed the view that there should only be one chef working Wednesday – Friday night.  In addition, he had discussed that there was a staff member earing €14.50 per hour who’s only job it was to cook chips and that he had advised the Complainant that these staffing arrangements were not viable.

Mr. O’ Neill stated that he also discussed with the Complainant the amount of waste he had observed and the financial implications in terms of the waste of food and the cost of waste disposal.  He gave evidence that he gave the Complainant both oral and written warnings, that he had sent her messages to say what she had done wrong.  He also stated that he had sent her emails but that he had received no response. 

Mr. O’ Neill advised “that’s how we came to an end” and he confirmed that he had paid her everything due to her.

In response to queries from the Adjudication Officer Mr. O’Neill gave evidence that the owner for the business from 2021, sold the pub to another individual on 21 November 2024 and that he leased the premises from that individual with effect from 22. November 2024.  He stated that he was advised by the previous owner that all staff were paid redundancy prior to the sale of the business. In that context, he stated that he understood that he was entering into new contracts of employment with the individual staff and therefore, the Complainant did not have sufficient time in his employment to pursue a complaint of unfair dismissal.

Cross examination of Mr. O’Neill

Mr. Hughes put it to Mr. O Neill that the pubs reputation was built on being a seafood restaurant with fresh fish bought locally.  Mr. O’Neill accepted that position but advised that there was not much red meat on the menus and expressed a view that it might be advantageous to enhance the menu by this addition.

Mr. Hughes also put it to Mr. O’Neill that there were a lot of “walk-ins” for dinner that he hadn’t factored into his numbers.  Mr. O’Neill accepted that there were walk-ins but that he had included them in his numbers.  He stated that the numbers were based on his first weeks’ experience and that was why he was suggesting adding items to the menu.

In response to Mr. Hughes questions regarding the letter of termination and the manner of its’ delivery Mr. O’Neill confirmed that he had received complaints in relation to the food and that he he understood they were passed on to the Complainant by the Manageress.  He confirmed that it was the Manageress who gave the letter of termination to the Complainant and that “payslips” was written of the envelope for discretion.  He confirmed that he had also advised all staff that everybody “has to go on the books” and that there would be no more cash payments.

Mr. O’Neill confirmed that he did receive suggested new menus from the Complainant and that while they “looked good” they did not include his requested changes in relation to meat dishes.  He stated that the Complainant was not willing to move in the direction he wanted.  He stated that having made the changes he had tried at that time to implement, the business was now able to produce more meals and much lower cost, without impacting quality or attendances.

Concluding Remarks

In conclusion, Mr. O’Neill confirmed that it was clear from the Complainant’s evidence that she had been made redundant by the previous employer.  He stated that he did not take over the entirety of the business, that the premises was bought by another individual and that he leased the premises in order to run a pub and restaurant.  He stated that there was documentary evidence between solicitors that would clarify the ownership arrangements and he agreed to seek clarification from the relevant solicitor and provide same to the WRC within 10 days of hearing.

Finally, Mr. O’Neill confirmed that the Smuggler’s Rest was no longer a trading entity.  He confirmed that the sign was still “over the door” because the name was recognised locally but he confirmed that he was operating and registered under his own name.  he confirmed that he was agreeable to the name being changed in relation to the decision which would ultimately be issued.

Post Hearing submission

Subsequent to the hearing the Respondent submitted correspondence from JCK Solicitors, Ardee, Co. Louth who confirmed that they act for the current owner of the property known as the Smugglers Rest.  JCK solicitors also confirmed that their client purchased the premises as a vacant premises, and did not acquire any employees as part of that transaction.  Their client subsequently leased the premises to the Respondent.

I have given careful consideration to the submissions/documents provided by the parties.  I have also taken account of the witness evidence given under oath/affirmation and have made my own enquiries in order to fulfil my obligation to fully investigate the matters before me.

Preliminary Issue

In the course of the hearing the Respondent raised the issue of the Complainant’s standing to pursue a case of unfair dismissal.  It was the Respondent view that the Complainant was only employed by him for a period of 11 weeks and therefore did not have the requisite service to pursue such a case.  It was the Complainant position that she had been in the same employment since 1 June 2021 and that her service was unbroken at the time of her dismissal on 16 February 2025.  In such circumstances she contended that she did have the requisite service to pursue her complaint of unfair dismissal.

Section 2 of the Act states that

“2 – (1) This Act shall not apply in relation to any of the following persons:

(a)   An employee (other than a person referred to in section 4 of this Act) who is dismissed, who at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him ….”

It is common case that the previous employer of the Complainant (the Smuggler’s Rest) made its staff redundant and it is clear from her own evidence that the Complainant accepted that redundancy when she accepted the redundancy payment.  It is also clear from the solicitor’s correspondence provided by the Respondent post hearing that the Smuggler’s rest premises was sold to another party as a vacant premises and this is consistent with the staff having been made redundant.  In circumstances where the Respondent then leased the premises from the new owner and where the Complainant had been paid and accepted redundancy, I accept that no transfer of undertakings applied in the instant case.

In light of the above, I find that the Complainant did not have continuous service and that her service with the Respondent (Mark O’Neill) was of approximately 11 weeks duration.  In these circumstances I find this complaint is not well founded.

I found that this complaint was not well founded and I decide accordingly.