Complainant

Respondent

Parties

Kerry  Mullaly

Cork LGBT + Pride Festival CLG, (in liquidation)

Complainant

Respondent

Anonymised Parties

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Representatives

Diarmuid Long SIPTU

Gerard Murphy & Co Chartered Certified Accountant's

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-00072396-001

13/06/2025

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

CA-00072396-002

13/06/2025

The Complainant was employed by the Respondent as a development manager from 1 January 2023 until the insolvency of the company which occurred after he had submitted the complaints. The Complainant had been suspended from his employment and the issues here regarding the non-payment of commission, unpaid wages at termination, and non-payment of statutory annual leave are connected to that period. The Complainant obtained injunctive relief from the High Court, and the decision will refer to this where relevant.

 For the purposes of this hearing, the appointed liquidator stood in the shoes of the employer. The liquidator confirmed that, due to the company’s insolvency, he could not give contrary evidence on the factual disputes raised by the Complainant.

CA-00072396-001 Payment of Wages Act 1991:

The Complainant submits that his employment contract had two dimensions. Part A was where he was paid as an hourly employee and Part B was where he was contractually entitled to commission earned over a defined period and that this commission had crystallised in accordance with the Respondent’s scheme. He claims that a sizeable portion of commission was withheld without contractual basis, representing an unlawful deduction under section 5 of the Payment of Wages Act 1991. Part A had been paid but Part B remained outstanding. This Commission was for the period commencing in September 2024 and payable in June 2025. The Gross figure claimed was €40,400.31; net €19,366. There was also a separate sum of hours not paid for this period which amounted to €315; net €151.

When injunctive relief was granted by the High Court to the Complainant in the matter of his suspension, the High Court directed amongst other things that:

“The Respondent will make payment to the Complainant in respect of both A and B Roles.” (exhibited)

CA-00072396-002 Organisation of Working Time Act 1997 – Annual Leave:

The Complainant submits that the Respondent failed to ensure that he received his statutory annual leave entitlement. He states that, at the end of his employment, he had accumulated statutory leave for two years which was neither granted nor paid, contrary to sections 19 and 23 of the Organisation of Working Time Act 1997.

No evidence contradicting the Complainant’s case was submitted.

CA-00072396-001 Payment of Wages Act 1991:

Section 5(1) of the Payment of Wages Act 1991 (“the 1991 Act”) in its relevant part provides:

“An employer shall not make a deduction from the wages of an employee… unless the deduction is required or authorised by law, by a term of the employee’s contract, or by the employee’s prior consent in writing.”

Section 1 defines “wages” as including commission and any sums payable to an employee in connection with their employment.

The Complainant gave straightforward evidence of the commission earned and wages unpaid. The Respondent gave no evidence to rebut the Complainant’s calculations or factual assertions. The liquidator, standing in the Respondent’s place, expressly confirmed that he was unable to contradict the Complainant’s evidence. On the balance of probabilities, I accept the Complainant’s evidence in full and find that his complaint was well founded.

Section 6(1) of the 1991 Act states:

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 tips or gratuities as the case may be] (after the making of any lawful deductions therefrom) that—

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.

It is clear from the legislation that the net amount of the claimed sum is payable. The sums the Complainant submitted were €40,400.31 gross: net €19,366. There was also a separate sum of hours not paid for this period which amounted to gross €315; net €151. The net amount awardable is therefore €19517.

CA-00072396-002 Organisation of Working Time Act 1997 – Annual Leave:

Section 19 of the Organisation of Working Time Act (“the 1997 Act deals with entitlement to annual leave: -

(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.

Section 27 of the Act provides:

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 the circumstances but not exceeding 2 years remuneration in respect of the employee's employment.The cognisable period for adjudication of claims is set out as follows under section 41 of the Workplace Relations Act 2015 (“the 2015 Act”) where it states in its relevant parts: -

(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 Complainant submits that he had two years of outstanding annual leave which he was unable to take due to a suspension that the High Court subsequently found to have been improperly implemented. I note, however, that this complaint was submitted before the Respondent entered liquidation. The complaint was lodged on 13 June 2025. Ordinarily, section 6 of the 1997 Act provides for a cognisable period of six months prior to 13 June 2025 (i.e., from 13 December 2024). However, because of what was deemed an unlawful period of suspension by the High Court  whereby the Complainant was suspended from all aspects of his employment, including the ability to establish his holiday entitlement,  I am satisfied that reasonable cause exists in this case, in line with section 8, to extend the cognisable period by a further six months to 14 June 2024.

I estimate that there were 20 days of annual leave recoverable by the Complainant. The per diem rate is €276. Accordingly, the value of the outstanding annual leave entitlement is €5,520.  

CA-00072396-001 Payment of Wages Act 1991: For the reasons outlined above, I find that the complaint was well founded. I direct the Respondent to pay the Complainant the net sum of €19,517.

CA-00072396-002 Organisation of Working Time Act – Annual Leave: For the reasons outlined above, I find that the complaint was well founded. I direct the Respondent to pay the Complainant the compensatory sum of €5,520, the equivalent of 20 days leave.

Payment of Wages Act 1991. Organisation of Working Time Act 1997.