Complainant

Respondent

Parties

Derek  Byrne

Clonmannon House Retirement Village Limited  (In Liquidation)

Representatives

  Self-Represented

 Declan de Lacy, Liquidator, Azets Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057870-001

24/07/2023

On the 24th July 2023 the Complainant referred a complaint to the Workplace Relations Commission (hereinafter referred to as “the WRC”) wherein he claimed that the Respondent unlawfully deducted monies from his wages in breach of the Payment of Wages Act 1991 for the period from the 31st August 2021 to date.

The Complainant commenced employment with Castle Rook Limited on the 14th May 2018. In or around August 2022 the Complainant was verbally informed by Candace Lafleur that his employment was transferring to the Respondent.

From the 31st August 2021 there were irregularities in payment of the Complainant’s salary. Since the 31st December 2022 he has not received any wages even though his tax and PRSI were paid up to April 2023. The Complainant submitted a spreadsheet to the WRC in advance of the hearing setting out the date of payment, the net pay due, the net pay received, the shortfall for the relevant pay period and the cumulative shortfall for the years 2021, 2022 and 2023. 

On the 20th October 2023 Candace Lafleur wrote to the Complainant on Castle Rook Limited headed notepaper advising him that his position was redundant. The letter confirmed that he started with the company in 2018 and that his redundancy payment would be paid along with his outstanding wages at the end of October 2023 and the middle of November 2023.

In response to questions from the Adjudication Officer the Complainant confirmed that Candace Lafleur was the sole director of Castle Rook Limited and that to date his redundancy pay, notice pay and outstanding wages have not been paid to him.

By way of preliminary issue the Liquidator submitted that the Complainant named the incorrect employer on the WRC Complaint Form.

The Liquidator confirmed that he was appointed liquidator of the Respondent on the 15th April 2024. He was put on notice of the within complaint by the Complainant and they engaged in correspondence on the 26th April 2023 and the 1st May 2024 and had a meeting on the 21st May 2024.

The Liquidator noted that the Complainant commenced employment with Castle Rook Limited on the 14th May 2018 and entered into a contract of employment with the said company on that date. The Liquidator was informed by the Complainant that he was verbally advised by Candace Lafleur sometime in August 2022 that his employment transferred from Castle Rook Limited to the Respondent however according to the Liquidator there is no documentation in support of the contention that a transfer by operation of the TUPE Regulations took place.  

The Liquidator noted that the letter from Castle Rook Limited dated the 20th October 2023, wherein the Complainant was given notice of being made redundant, was on Castle Rook Limited headed notepaper and referenced the fact that the Complainant’s employment commenced in 2018. According to the Liquidator, in circumstances where the said letter confirmed that the Complainant was employed by Castle Rook Limited since 2018 and that his employment with Castle Rook Limited was ceasing by reason of redundancy the within complaint ought to have been made against Castle Rook Limited and not the Respondent.

In response to questions raised by the Adjudication Officer the Liquidator confirmed that upon his appointment as liquidator he started looking for documentation from the Respondent company. The documentation furnished to him to date suggests that the Respondent never traded and that its sole activity was to borrow money to buy land. The Respondent had contracted to buy a piece of land but up until the date of the Liquidator’s appointment the sale had not completed. The Liquidator has not been able to identify any other activities and following his investigations to date there are no employees of the Respondent.

The first matter for me to address is the preliminary issue which has arisen in the course of my investigation – whether the Complainant has named the correct Respondent. If my consideration of the preliminary issue leads me to conclude that I have no jurisdiction to hear the complaint I will not proceed to consider the substantive issues.

Preliminary Issue: Has the Complainant named the correct Respondent?

Payment of Wages Act 1991

Section 1 of the Payment of Wages Act 1991 defines “employee” and “employer” as follows:

"employee" means a person who has entered into or works under (or, where the  employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as  references to an employee employed by that employer;…”

"employer", in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;”

The Liquidator submitted that the Respondent was not the Complainant’s employer and that the Complainant entered into and worked under a contract of employment dated the 14th May 2018 with Castle Rook Limited having a registered office at Clonmannon House, Clonmannon, Ashford, Co. Wicklow.

As appears from the documentation submitted by the Complainant to the WRC, he commenced employment with Castle Rook Limited on the 14th May 2018 and entered into a contract of employment with the said company on that date. While I note that the Complainant understood following a verbal conversation with Candance Lafleur that his employment with Castle Rook Limited transferred to the Respondent in August 2022, the Liquidator submitted that the Complainant’s employment never transferred by operation of the TUPE Regulations from Castle Rook Limited to the Respondent. According to the Liquidator, from an investigation of the Respondent’s files furnished to date, there is no documentation in support of the contention that a transfer took place.

From a consideration of the papers furnished to the WRC in advance of the hearing the only reference to a transfer or to “TUPE” is in a WeChat text message dated the 21st March 2019 from Candace Lafleur to the Complainant wherein Candace Lafleur states that [h]i Derek, for accounting purposes we are going to move you to GWR/Clonmannon company payroll. There is no change to amounts, taxes, etc. Is that okay with you? It’s a straight TUPE arrangement.”  Despite the content of the said text message, it was common case that the Complainant did not move to GWR/Clonmannon company payroll in 2019.

According to the parties Candace Lafleur is the sole director of Castle Rook Limited. At all material times the Complainant engaged with Candace Lafleur in relation to his wages claim and redundancy and she communicated with the Complainant using a Castle Rook Limited email address. The letter from Candace Lafleur dated the 20th October 2023, wherein the Complainant was given notice of his redundancy, was on Castle Rook Limited headed notepaper and referenced the fact that the Complainant’s employment with the company commenced in 2018, the year the Complainant commenced employment with Castle Rook Limited.

Taking into consideration the oral submissions made by the Complainant and the Liquidator and the documentation submitted by the parties in advance of the hearing and referred to at the hearing, I find that at all material times the Complainant entered into and worked under a contract of employment with Castle Rook Limited and that Castle Rook Limited was the Complainant’s employer. Accordingly, the Complainant has not named the correct Respondent on his complaint form and I therefore find that his complaint is not well founded.

For the reasons set out above I decide that this complaint is not well founded.