Complainant

Respondent

Anonymised Parties

An Employee

Richale Developments Limited

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00074910-001

28/08/2025

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

CA-00074910-002

28/08/2025

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

CA-00074910-003

28/08/2025

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

CA-00074910-004

28/08/2025

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

CA-00074910-005

28/08/2025

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

CA-00074910-006

28/08/2025

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

CA-00074910-007

28/08/2025

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

CA-00074910-008

28/08/2025

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

CA-00074910-009

28/08/2025

The Complainant attended at the hearing and gave her evidence. She referred a number of complaints which have been detailed below.

There was no appearance by or on behalf of the Respondent despite prehearing engagement.

Anonymised Complaint

The Complainant made an application to anonymise her name where she had been treated by John McHale of the Respondent and another person on his behalf which has resulted in a complaint to an Ombudsman. Having heard the Complainant’s evidence, I have decided to anonymise her name where there is a serious concern for her personal safety which amounts to an exceptional circumstance. Anonymisation has not been extended to the Respondent in the absence of any submission at the hearing.

The Complainant gave evidence that she loved her work. She commenced employment with the Respondent on 10 September 2018 as a Catering Assistant/Bar Catering Assistant. She worked in a variety of locations operated by the Respondent, including school catering contracts and McHale's Function Room in Co Kerry. She stated that her rate of pay was €10 per hour throughout the entirety of her employment and that this rate never increased from the date of commencement until her employment ended on 13 April 2025.

The Complainant submitted that her hours varied from week to week but generally involved work from Monday to Friday in school catering operations, together with weekend work when engaged in the function room and bar operations. She stated that she regularly worked Sundays from approximately 2020 onwards following the reopening of hospitality businesses after Covid-19 restrictions.

She was not afforded any premium payment for Sunday work despite it being a normal day of work.

The Complainant further stated that she did not receive a contract of employment, employee handbooks, grievance procedures, bullying and harassment policies, or other written workplace procedures. She said that payslips were only provided when specifically requested.

The Complainant gave evidence that she was paid €10 per hour throughout her employment notwithstanding increases in the statutory minimum wage over that period. She maintained that she was therefore paid less than the minimum wage to which she was entitled. She also stated that there were numerous occasions when wages were not paid in full or on time and that she had to repeatedly seek payment of monies she believed were due.

The Complainant stated that she did not receive paid annual leave. If she took time off, she did not receive any payment from the Respondent. When she requested annual leave payment, John McHale told her she did not need it.

She further gave evidence that she worked public holidays and, in circumstances where she did not work on a public holiday during her school catering duties, she did not receive payment in respect of that public holiday.

In relation to the termination of her employment, the Complainant stated that, in the months preceding her resignation, the Respondent ceased communicating with her and would pass her without speaking. She said that this situation persisted for approximately four months and that she was subjected to hostile behaviour, foul language and comments towards her from John McHale which she found extremely upsetting.

Following discussions with members of her family, she sent a text message to the Respondent in April 2025 indicating that she could no longer continue working in those circumstances and resigned her employment.

The Complainant further stated that she remained out of work until January 2026, during which period she sought alternative employment that would accommodate her family responsibilities. She subsequently secured employment with another employer, who she described as “lovely” and was paid at a higher hourly rate than she had received from the Respondent.

The Respondent was notified on 30 September 2025 of the complaints.

A signed and dated statement from John McHale of the Respondent was submitted on 15 October 2025.

The parties were notified of the hearing date on 7 August 2026 with the links to the remote hearing information were sent on the same day by registered post.

Mr John McHale spoke to the WRC on 31 August 2026 who advised he had a representative coming on record and acknowledged the time change to the hearing.

No details of a representative were furnished by the Respondent.

On the day of the hearing Mr McHale stated he was unavailable to attend the hearing due to work commitments and neither was his representative.

Preliminary Matter

The Complainant was employed since September 2018 up to and including 13 April 2025 with the Workplace Relations Commission receiving her complaint form on 28 August 2025.

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 (6) and (8) of the Workplace Relations Act 2015: -

“(6) 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.”

“(8) 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 Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows;

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.

In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The test draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Herein Costello J. stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

The Complainant made an application for an extension of time. It was her evidence that she was frequently subjected to verbal abuse from Mr McHale. In the period of four months prior to her termination. Mr McHale would use a third party to give her directions in the workplace rather than speak to her directly. It was her evidence that Mr McHale would refer to her as “that fucking cunt” to her colleagues and customer.

After she left her employment, she was subjected to threats from the Respondent and form a third party which she has now referred the matter to an Ombudsman.

The delay in filing her complaint was due to fear for her safety based on the Respondent threating and intimating behaviour towards her as sufficient to meet the test of “reasonable cause”. Consequently, the cognisable period for the purpose of this decision is from 27 August 2024 – 28 August 2025. It is further noted that her employment terminated on 13 April 2025 and therefore she worked from 27 August 2024 - 13 April 2025 within the cognisable period.

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00074910-001

Section 23 of the National Minimum Wage Act, 2000 requires a statement of the employee’s average hourly rate of pay to be sought.

“23.—(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee’s average hourly rate of pay for any pay reference period (other than the employee’s current pay reference period) falling within the 12-month period immediately preceding the request.”

Section 24 (2) explicitly requires that an employee request a statement of the average hourly rate of pay before the matter can be referred to an Adjudication Officer:-

“(2) A dispute cannot be referred to or dealt with by a rights commissioner—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

or

(b) where, in respect of the same alleged under-payment, the employer is or has been—

(i) the subject of investigation by an inspector under section 33 or 34 , or

(ii) prosecuted for an offence under section 35 .”

The Complainant accepted she did not seek a statement of her average hourly rate of pay.

Therefore, in the absence taking that step, I do not have jurisdiction to investigate the complaint.

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

CA-00074910-002

Section 14 of the Organisation of Working Time Act 1997:-

“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 undisputed evidence of the Complainant is accepted that despite Sunday being a normal working day, she did not receive a Sunday Premium. Having regard to the evidence presented, I find the complaint is well founded.

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

CA-00074910-003

Section 5 of the Act provides:

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.”

It is accepted that the Respondent failed to pay the Complainant’s wages which were properly payable on a weekly basis in the total sum of €2,170. I find the complaint is well founded.

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

CA-00074910-004

Section 1 of the Act defines wages as:-

"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”

Having regard to the Complainant’s evidence and her complaint under the Unfair Dismissals Act 1977 where she accepted that she terminated her employment (constructive dismissal) she is not entitled to payment in lieu of notice pursuant to the definition of wages in Section 1 of the Act.

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

CA-00074910-005

Section 19 of the Act provides for the entitlement for annual leave:-

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

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

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

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

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

I find the complaint is well founded based on the undisputed evidence of the Complainant that she never received her annual leave entitlement.

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

CA-00074910-006

Section 21 of the Act provides:

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.”

The Complainant’s evidence regarding her entitlement to public holidays was very clear and is accepted.

I find the complaint is well founded.

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

CA-00074910-007

This complaint was a duplicate of the CA-00074910-005. Where it has been addressed above, I find this complaint not well founded.

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

CA-00074910-008

This complaint was a duplicate of the CA-00074910-006. Where it has been addressed above, I find this complaint not well founded.

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

CA-00074910-009

The test for constructive dismissal is set out in Section 1 of the Unfair Dismissals Act 1969, with the burden of proof resting on the employee to establish that either, because of the conduct of the employer, the employee was entitled to terminate their contract, or that it was reasonable to do so.

In complaints of constructive dismissal, the burden of proof lies with the Complainant, who must satisfy two key tests: the contract test (whether the employer breached a fundamental term of the contract) and the test of reasonableness (whether the employer’s conduct was so unreasonable that resignation was the only option).

In this case, the Complainant made no allegation of a contractual breach. Therefore, the issues for consideration are:

1.      Whether the employer’s conduct was so unreasonable that the Complainant was justified in resigning; and

2.      Whether the Complainant acted reasonably by attempting to address her concerns directly with the Director of the Respondent, Mr John McHale.

The reasonableness test, which can be relied upon either as an alternative or in combination with the contract test, is where the Respondent conducts its affairs in relation to the Complainant so unreasonably that the Complainant cannot be expected to put up with it any longer. Described as the reasonableness test in Western Excavating (ECC) v Sharp [1978] IRLR 332.

The Labour Court in Cedarglade Limited v Hilban UD/17/145 applying the reasonableness test held; “constructive dismissal cases, the Court must examine the conduct of the parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must alert the employer to their situation in order to allow the employer an opportunity to rectify the problem before resigning. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA 474/1981.”

Delving into the reasonableness test further it has been well established that in order for a Complainant to succeed in a constructive dismissal claim, he must first exhaust all internal grievance procedures; Conway v Ulster Bank Limited UDA 474/1981 and Zabiello v Ashbrook Facility Management Ltd. UD1106/2008.

Applying the law to the facts of this case, it is necessary to examine the circumstances surrounding the Complainant's resignation. The Complainant submits that she was subjected to repeated verbal abuse and disrespectful treatment by Mr McHale. During the four months preceding the termination of her employment, he allegedly refused to communicate with her directly and instead used a third party to convey workplace instructions. The Complainant further alleges that Mr McHale referred to her in highly offensive and derogatory terms in the presence of colleagues and customers, including by describing her as "that fucking cunt".

On 13 April 2025, the Complainant considered that she could no longer tolerate the manner in which Mr McHale spoke about her or the working environment which, she submits, he had created. She terminated her employment by text message. No response was received from the Respondent to that communication.

The Complainant did not receive a written contract of employment, an employee handbook, dignity and respect policy, grievance procedure, or any training relating to bullying and harassment in the workplace.

Mr McHale was the Complainant's sole line manager and a director of the Respondent. The Complainant gave evidence that he was difficult to approach and that she was fearful of raising a grievance with him.

A reasonable employer would be expected to conduct itself objectively and to address workplace concerns in accordance with the procedures contemplated by S.I. No. 146/2000, the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000.

The Respondent did not attend the hearing to give evidence or challenge the Complainant's account. In those circumstances, I accept the Complainant's evidence regarding Mr McHale's intimidating, hostile and abusive conduct towards her. Having regard to that evidence, I find that the Respondent's conduct, particularly during the period from January to April 2025, created an unacceptable and hostile working environment for the Complainant.

Taking the evidence as a whole, I find that the Respondent engaged in conduct which was unreasonable, and which constituted a significant breach of the trust and confidence that an employee is entitled to expect in the employment relationship. The Respondent's conduct was such that the Complainant could not reasonably have been expected to remain in her employment.

Accordingly, I find that the Complainant was constructively dismissed and that her dismissal was unfair within the meaning of the Unfair Dismissals Acts 1977 to 2015.

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00074910-001

For the reasons outlined above, I find the complaint is not well founded.

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

CA-00074910-002

Section 27 (3) of the Organisation of Working Time Act 1997 provides for redress: -

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

I find the complaint is well founded.

I find compensation is the most appropriate form of redress where the Complainant is no longer employed by the Respondent.

Having regard to the complete failure to compensate the Complainant for Sunday working throughout the cognisable period and the absence of any evidence that Sunday working was otherwise taken into account in her remuneration, I consider compensation of €3,500 to be just and equitable.

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

CA-00074910-003

Redress is provided for under Section 6 of the Payment of Wages Act 1991:-

“6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

I find the complaint is well founded.

I direct the Respondent to pay compensation to the Complainant in the net amount of €2,170, being the amount of wages unlawfully withheld from her as being reasonable in the circumstances.

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

CA-00074910-004

I find the complaint is not well founded.

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

CA-00074910-005

Section 27 (3) of the Organisation of Working Time Act 1997 applies to this complaint also.

I find the complaint is well founded.

I find compensation is the most appropriate form of redress where the Complainant is no longer employed by the Respondent.

Having regard to the Respondent's complete failure to provide the Complainant with her statutory annual leave entitlement throughout the relevant period, and the absence of any evidence that annual leave was granted, it is clear there was a significant breach, I consider compensation of €3,500 to be just and equitable.

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

CA-00074910-006

Section 27 (3) of the Organisation of Working Time Act 1997 also applies in this instance.

I find the complaint is well founded.

The evidence before me was that the Complainant did not receive any benefit in respect of public holidays during the cognisable period. Having regard to the Respondent's failure to provide the Complainant with her statutory public holiday entitlements, and in circumstances where no evidence was produced to demonstrate compliance with the provisions of Act, I find that compensation in the amount of €2,000 is just and equitable.

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

CA-00074910-007

I find this complaint not well founded.

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

CA-00074910-008

I find this complaint not well founded.

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

CA-00074910-009

Section 7 (1) of the Unfair Dismissal Acts 1977 sets out the provision on redress:

“7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and

(d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

I find the Complainant was unfairly dismissed by the Respondent.

In assessing the level of compensation, the Complainant's evidence was that she was paid €10 per hour while employed by the Respondent is noted. As this rate was below the applicable national minimum wage, I do not consider it appropriate to calculate compensation by reference to an unlawful rate of pay. Accordingly, I have assessed the Complainant's financial loss by reference to the national minimum wage of €13.50 per hour applicable at the date of dismissal.

Based on a working week of 20 hours, the Complainant's weekly earnings are calculated at €270. Having regard to the period during which the Complainant was unemployed, the efforts made by her to mitigate her loss given her very particular family commitments which have not be set out in detail due to the decision to anonymise her name, and the evidence before me concerning her subsequent employment, I find her financial loss arising from the unfair dismissal at €10,530.

Accordingly, pursuant to section 7 of the Unfair Dismissals Act 1977, I direct the Respondent to pay the Complainant compensation in the sum of €10,530 as being just and equitable having regard to all the circumstances.