Complainant

Respondent

Parties

Joanne  Connolly

Durkins Durkins Bar And Restaurant

Representatives

Richard Regan South Connaught Citizens Information Service CLG

Andrew Durkin

Act

Complaint/Dispute 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-00042852-001

04/03/2021

The claimant submitted the respondent was in breach of the Act for failing to pay her her outstanding leave entitlement on termination of her employment on the 9th.Sep. 2020.

The claimant was employed as a waitress with the respondent from the 16.Oct.2017 to the 9th.Sept. 2020.Initally the claimant worked 15 hours per week – increasing to 18.5 hours in January 2020.The claimant was paid €10.55 per hour .The business temporarily ceased trading owing to the Covid Pandemic on the 16th.March 2020 and the claimant submitted that she was not paid any annual leave payments that had accrued to her.The claimant was advised by the respondent in April 2020 that he was in negotiations with the bank about the future operation of the business.She submitted that as there was no further contact after April , she wrote to the respondent seeking clarity on her employment status and the future of the business in August 2020..On the 8th.September , the respondent replied advising that the business was in the process of being sold and he was not in a position to pay her any  accrued annual leave which he estimated to be €645.75.The claimant took the letter to constitute a letter of dismissal. The claimant’s application for redundancy was processed and received on the 13th.Nov. 2020.The respondent clarified to the claimant on the 22nd.Sept. that he had revised her annual leave calculations and the accrued leave owed amounted to €1,508.65.The claimant asked that she be awarded the outstanding leave accrued amounting to €1,508.65.The claimant submitted copies of documentation exchanged between her and the respondent on the outstanding annual leave.The claimant confirmed agreement with the respondent’s calculations of her annual leave – 66 hours carried forward from 2018 ; 61 hours due for 2019 and 16 hours due for 2020.

The respondent did not dispute the claimant’s submissions and confirmed that there was agreement between the parties on the annual leave owing to the claimant. He set out a detailed chronology of  his exchanges with the Bank over the funding of the business and explained that while the pub ceased trading temporarily owing to COVID , there had been a very poor period of trading since September 2019. The bank advised him that they would not continue to support the business after the lockdown leaving them with no option but to sell the business. He said this was an extremely distressing time for himself and his brother as well as all of the staff. The respondent set out the reasons which precluded him from serving redundancy notice – the bank had refused a refinancing of the business and they were instructed to put the business on the market. The respondent submitted that the business had no means to pay redundancy and they had numerous other liabilities. The respondent stated that he was unable to disclose their difficulties with the bank to the staff while still in negotiation with the bank. He submitted the outcome for the staff would have been far worse had a receiver been appointed. He submitted “the bank took the full proceeds of the sale with the exception of some ongoing maintenance and utility bill costs……………I am not in a position to divulge confidential information regarding the sale but can confirm , that the transfer of trade as a going concern was absolutely not applicable”. The respondent stated that he and his brother were grossly insolvent and had no income or personal means to pay redundancy or outstanding holidays. The respondent advanced that he accepted his duty of care to his workforce but was bound by contractual confidentiality arrangements with the bank and potential purchasers and this accounted  for refraining from informing the staff of the detail of the negotiation on the future of the business . The respondent advised that he informed the employees that they would endeavour to facilitate the payment of outstanding annual leave through the Social Fund. The respondent said that  he could not state enough how regretful he and his brother were over finding themselves in the position of being grossly insolvent and in no position to pay the workers outstanding holiday entitlements. The respondent in concluding emphasised how regretful he was at not being able to keep the staff better informed and stated “ at no point were we trying to make financial gain , there was simply none to be made”.The respondent stated  that he and his brother remain in negotiations with the bank on their ever mounting debts. The business was sold to a local business man – whose identity was not in the public domain- who subsequently leased the business  to some former staff members .He stated the business was still called Durkins and  was registered with the CRO as Bar on the Square.

I have reviewed the evidence and submissions of both parties and note that there is no dispute in relation to the fact that the claimant was not paid her outstanding leave entitlement on termination of her employment in September 2020 – I further note there is no dispute between the parties in relation to the amount of leave accrued by the claimant.Given the chronology outlined by both parties of the protracted period of uncertainty about the future of the business , I am satisfied there is reasonable cause for the delay in making the complaint. While I accept that the cognizable period for calculation of leave can extend to 18 months from the date of receipt of the complaint , I am precluded from  extending  the time frame to include leave in  2018 – this is consistent with the finding of the High Court in Royal Liver Assurance Ltd. V Macken & Ors [2002] 4 IR 427.

In all of the circumstances I am upholding the complaint with respect to accrued annual leave during the years 2019-2020.

I require the respondent to pay the claimant €812.35 in respect of the non payment of annual leave on termination of her employment.