Complainant

Respondent

Parties

Padraig  McNamee

Lynch McNamee Limited trading as Sally Rodgers Bar

Complainant

Respondent

Anonymised Parties

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Representatives

  Nicola Dowling Solicitor

Shane Lynch, Company Director. (submissions having being filed by Williams Solicitors)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054910-001

07/02/2023

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

CA-00054910-002

07/02/2023

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

CA-00054910-003

07/02/2023

The following complaints have been brought on behalf of the Complainant:

CA-00054910-001 – In respect of no written contract

CA-00054910-002 – In respect of no Minimum Notice being paid to him prior to dismissal

CA-00054910-003 – In respect of Holiday Pay – both Annual Leave and Bank Holidays

This Adjudication was convened over three days 16/8/2023; 30/1/2024 and 27/11/2024.

On day 1 and day 2, the parties attended the hearing and the complaints and defence thereto were outlined. On the second hearing date, the Respondent expressed a willingness to concede part or some of the complaints.  The hearing was adjourned to allow discussions between the parties and should the matter proceed to a second day, for updated submissions to be filed.

On day 3 neither party attended the Adjudication.  A number of days prior to the day 3 hearing,  the Complainant emailed the WRC to advise that he would not be attending the hearing and he requested the WRC to issue a decision based on the evidence that was heard on days 1 and 2, despite that no sworn evidence having been tendered by either party.

The Complainant outlined on day 1 and 2 the background of the complaints which was that he commenced work for the Respondent as a bar manager on 28. 8. 2022 and he was dismissed on 12 January 2023.

CA-00054910-001 – In respect of no written contract, he seeks 4 weeks pay based on a gross weekly wage of €700.

CA-00054910-002 – In respect of minimum notice, which he alleges was not paid to him prior to dismissal on 12 January 2023, he seeks 1 week of pay based on a gross weekly wage of €700.

CA-00054910-003 – In respect of Holiday Pay – Annual Leave and Bank Holidays.

Bank Holiday Claim: He seeks payment in respect of 4 bank holidays; 31 October 2022; 25 December 2022; 26 December 2022 and 1 January 2023 based on a gross weekly wage of €700.

Annual Leave: He seeks 4 weeks pay based on having worked in excess of 1365 hours between his commencement date on 28 August 2022 and his dismissal on 12 January 2023, based on a gross weekly wage of €700.

On the behalf of the Respondent the following submissions were made:

CA-00054910-001 - In respect of no written contract, this complaint is conceded.

CA-00054910-002 – In respect of minimum notice, this complaint is denied on the basis that the Complainant was dismissed for gross misconduct

CA-00054910-003

-         In respect of bank holidays the Respondent concedes that pay in respect of 2 bank holidays are due and owing to the Complainant (in respect of 31 October and 26 December 2022.) The Respondent submits that the Complainant was paid for Christmas Day 2022 and submits that he did not work on 1 January 2023 because he was suspended at the start of that day for gross misconduct.

-         In respect of Annual Leave the Respondent denies that the Complainant worked 1365 hours over the six months that he worked for the Respondent. He also submits that the Complainant was paid for 2 weeks of annual leave. He was willing to concede 2 weeks holiday pay in respect of the claim of 4 weeks.

On day 1 and day 2 of this Adjudication the Complainant’s complaints and the parties positions in respect of the complaints were discussed but no sworn evidence was taken. This was because prior to commencing the Adjudicator was required to establish from the parties what was in contention and what was not. Prior to the commencement of the Adjudication the parties were in high dispute. At the conclusion of day 2 while the parties remained in dispute, the issues between them had been narrowed to the positions as outlined above.

In all complaints the onus is upon a Complainant to prove his or her complaints. It is necessary for this to be done by way of sworn evidence, which may then be cross examined. This did not occur in this Adjudication and would have been done if the parties had attended the hearing on 27 November 2024. As the Complainant chose not to attend that hearing date with no explanation being provided and no adjournment being sought, this Adjudicator is now confined to issue a decision based on what was agreed between the parties at the conclusion of the second hearing date

I therefore find as follows:

CA-00054910-001 - In respect of no written contract, as this complaint is conceded by the Respondent, I find this complaint to be well founded and I award the Complaint 4 weeks based on a gross weekly wage of €700.00 i.e. €2800

CA-00054910-002 – In respect of minimum notice, this complaint is denied on the basis that the Complainant was dismissed for gross misconduct. As this complaint has not been proven by way of sworn evidence, I am confined to find this complaint to be not well founded.

CA-00054910-003 – In respect of bank holidays the Respondent concedes that pay in respect of 2 bank holidays are due and owing to the Complainant (31 October and 26 December.) As the complaints in respect of the other 2 bank holidays has not been proven by way of sworn evidence.  I find this complaint to be well founded in respect of unpaid bank holidays of 31 October and 26 December 2022. I award the Complainant €200 based on an assumed daily pay rate of €100.

In respect of Annual leave, on the basis the Respondent conceded 2 of the 4 week claim, I find that this complaint is well founded and I award the Complainant 2 weeks based on a gross weekly wage of €700.00 i.e.  €1400.

CA-00054910-001. This complaint is well founded, I award the Complainant €2800

CA-00054910-002. This complaint is not well founded.

CA-00054910-003 This complaint is well founded, I award the Complainant €1400