Complainant

Respondent

Parties

Jamie  McGee Gilmore

Aaron Coughlin trading as Finn McCool’s Bar, Ballyshannon.

Representatives

  In person

 In person

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-00066124-001

19/09/2024

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

CA-00066124-002

19/09/2024

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

CA-00066124-003

19/09/2024

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

CA-00066124-004

19/09/2024

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

CA-00066124-005

19/09/2024

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

CA-00066124-006

19/09/2024

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

CA-00066124-007

19/09/2024

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

CA-00066124-008

19/09/2024

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

CA-00066124-009

19/09/2024

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

CA-00066124-010

19/09/2024

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

CA-00066124-011

19/09/2024

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

CA-00066124-012

19/09/2024

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

CA-00066124-013

19/09/2024

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

CA-00066124-014

19/09/2024

Adjudication Process

The Complainant issued 14 complaints.

At the first Adjudication hearing on 9/12/2024 the hearing was adjourned to allow the parties to file written submissions within an agreed time frame (Complainant by close of business on 20 December 2024; the Respondent by close of business on 15 January.)

On 11/2/2025 the Complainant attended the second Adjudication hearing at 1030am as scheduled,  and the Respondent did not attend. The hearing proceeded. Mid way through the hearing at 1145am the Respondent arrived. He stated that he had not been made aware of the hearing. The Adjudicator advised him that no submissions had been filed by him despite him agreeing on the first hearing day to do so on or before 15 January. He said that WRC hearing notification had been sent to the bar premises by post which he no longer had access to. He said that the only reason that he knew about the hearing was because former staff members told him. He stated that postal service should not have been used given that he provided an email address to the WRC on the first adjudication day. He advised the AO that the only notification that he got from the WRC was a letter relating to the cancellation of a related hearing on 14 January.

The Respondent did accept that he received written submissions by email from the Complainant directly and he accepted that he knew that he had a deadline of 15 January to file his submission and that he did not file submissions or contact the WRC at this time. He stated that he attempted to contact the WRC and Letterkenny courthouse on the day before the second hearing day.  

He said that when he heard about the second Adjudication hearing he contacted the WRC, which transpired to be the Inspectorate Division as opposed to the Adjudicative Division of the WRC, even though the PRU or Adjudicative Division was recorded on the correspondence that he had received.

As the Respondent was not properly on notice of the second hearing date, when the Respondent arrived at the hearing on 11 February 2025 the Adjudicator restarted the hearing and gave a summary of the evidence that the Complainant had given before his arrival and invited him to respond. The AO asked if the Respondent if he wished to cross examine the Complainant, and he then gave his evidence under oath in response to each of the complaints.

Before the hearing was concluded when the AO summarized the award amounts that the Complainant was seeking, the Respondent advised the AO that he would not pay anything and that he was leaving the hearing. When the AO advised him that a decision would issue and that it was in his interests to remain and to participate particularly in respect of the related proceedings, because no evidence had been heard on that yet, he left the hearing. The hearing proceeded thereafter in his absence.

The Complainant gave the following evidence in respect of each complaint under oath:

The Complainant worked at the Respondent’s public house as a bar tender from 5 June 2022.

The Respondent owned the bar and employed the Complainant. The Complainant’s mother also worked there as the bar manager. The working arrangement with the Respondent was fine until June 2024 although throughout the employment the Respondent was an arm’s length employer. He ordered stock and took takings at the end of the week but his day-to-day practical involvement with the business was sparse and inconsistent. The Respondent did not own the bar premises. He rented it and he also ran other bars in Ballyshannon and Sligo although not at the same time. But the Respondent’ main job was working as a flooring specialist. He had a lot going on.

Following a disagreement between the Respondent and the Complainant’s father (they had been good friends until then) without warning and following a health inspection the Respondent closed the bar advising the Complainant in the days that followed that he would employ him to redecorate and refurbish the bar, which would open a few weeks later.

The bar was reopened quietly by the Respondent in July 2024 but there was a more public opening in August 2024, which was publicised over social media. The Complainant showed evidence of this at the Adjudication hearing. But after their conversation after 6 June 2024 the Respondent did not contact the Complainant and when he reopened the bar, he did not employ the Complainant. He employed different bar staff instead. Neither he nor his mother were employed. The Complainant assumed that they were blamed for the disagreement between the Complainant’s father and the Respondent.

The Complainant requested the Adjudicator to investigate complaints within a 6-month period prior to the issue of his complaint (that is between 19 March 2024 – 6 June 2024 when his employment ended – hereafter referred to as the reckonable period) that the following employment breaches occurred.)

CA-00066124  - 001 – National Minimum Wage (NMW)

The Complainant states was paid €10.00 per hour instead of the statutory national minimum wage of €12.70 per hour. During the reckonable period the shortfall in his wages was of €2.70 for each of the 338.5 hours that he worked. He seeks an award of €913.95

CA-00066124  - 002 – Sunday Premium, Organisation of Working Time Act (OWTA)

In the reckonable period the Complainant states that he worked 10 Sundays (610 hours) and he seeks a premium or uplift of one third of what he was paid. The Complainant is happy to accept an uplift applied to his €10 per hour pay rate even though this was below the minimum wage rate of pay. The Complainant seeks an award of €203.31 calculated on the basis that his hourly rate is increased by a one third for the ten Sundays that he worked.

CA-00066124  - 003 – Payment of Wages Act (PWA)

The Complainant states that while he received some cash for the last four days that he worked for the Respondent he did not receive full wages. He seeks an award of €60.00

CA-00066124  - 004 - PWA

The Complainant states that he was not given one weeks’ notice that his employment would be ending on 6.6.2024.  The Complainant seeks one-week wages in respect of Minimum Notice; €360.00

CA-00066124  - 005 - OWTA

The Complainant states that he was not granted daily rest breaks.

CA-00066124  - 006 – OWTA

The Complainant states that during the reckonable period there were 13 occasions when he did not received 11 hours of continuous rest between work shifts.

CA-00066124  - 007– OWTA

The Complainant states that during the reckonable period he worked for 7 days and did not receive a 24 hour rest period.

CA-00066124 - 008 – OWTA

The Complainant states that he did not receive paid annual leave for the duration of his employment. He seeks an award based on 6 weeks of Annual Leave Pay, reflecting his leave entitlement within the leave year and six months; €2160.00

CA-00066124 - 009 – OWTA

The Complainant states that he was not paid for the public holidays that he worked (4 breaches within the reckonable period). He seeks an award of €240.00

CA-00066124 - 010 – OWTA

The Complainant states that he did not receive an allowance reflecting that when his employment was terminated he had outstanding unpaid Annual Leave which he was not given an opportunity to take. He seeks an award of two weeks of pay to reflect the remaining balance of annual leave entitlement that was not paid to him when his employment was terminated, ie €720.

CA-00066124 - 011 – OWTA

 The Complainant states that he was never paid to work public holidays (16 days that fall outside the reckonable period) He seeks a payment to reflect that he should have been paid for these days. He seeks an award of €960

CA-00066124 – 012 – Unfair Dismissal         

The Complainant, like all staff, was advised by text by the Respondent that the bar would close because it needed to be repaired and redecorated to comply a health inspection. The Complainant was told that the Respondent would employ him to do construction work on the bar premises but then he did not contact him. The Respondent got another person to do the renovation work to the premises and opened the bar quietly in July 2014 with a public opening in August. The Complainant was not contacted and was not rostered to work. The Complainant believes that because the Respondent had a disagreement with the Complainant’s father (they were good friends until this disagreement) that the Respondent decided not to employ the Complainant from then on. There was no explanation given to him. There was no investigation into wrong-doing. There was no procedures applied. No reason for dismissal was provided.

The Complainant’s loss arising from his dismissal lasted for 12 weeks, following which the Complainant returned to full time college. Even though, had he continued to work for the Respondent, he would have kept working 2 shifts per week. Despite sustaining an ongoing loss the Complainant confines his claim to the period 6 June 2024 until the start of September 2024 when he started back to college. He seeks an award of €4320.00

CA-00066124 – 013  - The Complainant withdrew this complaint as it is a duplicate of another complaint

CA-00066124 – 014  - The Complainant withdrew this complaint as it is a duplicate of another complaint

Under oath the Respondent gave the following evidence

CA-00066124 – 001 - NMW - This complaint is conceded

CA-00066124 – 002   - OWT - Sunday Premium.  This complaint is conceded although the Complainants own records, which were not shown to the AO, show that he worked 5 not 10 Sundays during the reckonable period

CA-00066124 – 003 - PWA - This complaint is conceded

CA-00066124 – 004  - MN. This complaint is disputed. The Respondent contends that due to the poor state that the bar premises was left in by the Complainant and his mother, the bar manager, a health inspector attended and they failed to notify him. Following this the bar had to be shut down immediately. He was not able to give the staff any notice or pay them.

CA-00066124 – 005 – OWT (rest breaks) - This complaint is disputed. The arrangement was that the Complainant and his mother managed the bar. They chose the hours that they worked they organised the roster. They decided to take breaks or not. While the Respondent accepts that he was the employer and took the takings (not that there was much) that the Complainant and his mother ran the bar in every respect and they ran it into the ground and damaged his reputation in the town that they lived. The Respondent states that if the Complainant did not take rest breaks that was up to him to manage

CA-00066124 – 006  - OWT. This complaint is disputed for reasons stated above (CA-00066124 – 005) Daily rest was up to the Complainant to manage. It was not the Respondent who told him to work night shifts and do a morning shifts without 11 hours of break

CA-00066124 – 007 - OWT. This complaint is disputed for reasons stated above (CA-00066124 – 005 and 006) Weekly rest was up to the Complainant to manage. It was not the Respondent who told him to work 7 days a week without a rest day. The Complainant wanted all the hours that he could get.

CA-00066124 – 008 – OWT – Annual Leave. This complaint is conceded.

CA-00066124 – 009 – OWT – Public Holidays. This complaint is conceded.

CA-00066124 – 0010 – OWT – Annual Leave Allowance at end of employment. This complaint is conceded.

CA-00066124 – 0011 – OWT – Public Holidays outstanding at end of employment. This complaint is conceded.

CA-00066124 – 0012 – Unfair Dismissal (UD)

The Respondent disputes the Unfair Dismissal complaint. The Respondent was forced to close the bar premises in June 2024 because a health and safety inspection had taken place but neither the Complainant nor Complainant’s mother told the Respondent about the inspection. The Respondent found the health and safety inspection notice in the bar himself and remedial work needed to be done. When the Respondent was forced to close the bar in June, it was his intention to repair and redecorate the bar and then try to buy the premises to run it as a business however, then he heard that the Complainant had been spreading damaging stories about him around the town and was threatening to take him to the WRC. After that he decided that he would not employ the Complainant after that. But the Complainant never came back to him anyway after they had discussed the construction work that the Complainant might do for him. The Complainant and his mother created much trouble for the Respondent. They ran the bar very poorly. They failed to manage the place and breached the licence hours leading to the gardai having to be called. The real reason behind the disagreement was because the Complainant’s father was barred by the Respondent from the premises and the Complainant and his mother were angry about that. Whatever is ordered by the WRC, the Respondent will not pay it. He can’t afford to pay anything anyway.

The Respondent then left the hearing.  Before he left the hearing room the AO advised him that it was in his interests to remain and participate and to give evidence in the related case but the Complainant was adamant that he wished to leave. He then left.

CA-00066124 – 001  - NMW – As this complaint is conceded, I am satisfied that it is well founded and I award the Complainant €913.95

CA-00066124 – 002   - OWT -  Sunday Premium.  As this complaint is conceded (albeit for a lesser amount of days than is claimed) although no evidence was provided by the Respondent to show that the Sundays worked were 5 and not 10 days. I am satisfied that it is well-founded and I award the Complainant €203.31.

CA-00066124 – 003  - PWA - As this complaint is conceded  I am satisfied that it is well founded and I award the Complainant €60.00

CA-00066124 – 004  - MN. I am satisfied that the Complainant was dismissed from his employment on 6 June 2024 and that he received no notice or payment in lieu. The defence as raised by the Respondent is essentially misconduct but no evidence of misconduct was presented by the Respondent and an assertion of misconduct is not a good defence against a claim for minimum notice which all employees are entitled to.   I am satisfied that this complaint is well founded and I award the Complainant €360 which is one-week wages)

CA-00066124 – 005 – OWT (rest breaks) – I am satisfied that the Complainant was not afforded to take rest breaks during the day but I accept that the reason for this partly was because his employment rights were never made clear to the Complainant by his Employer and partly because the Complainant chose not to take rest breaks. On the basis of the Complainants own evidence, the Respondent was hardly ever present on the premises and the Complainant does not contend that the Respondent refused to allow him rest breaks. However the responsibility for this ultimately is one for the Employer. The obligation to record that rest breaks were taken was not undertaken by the Employer. This hands-off arrangement does not comply with the responsibilities that the Respondent had toward his employees.  If the employment was a normal one where the Complainant had a contract which set out his rights including rest periods, holidays etc. more clarity would have been provided. The Respondent did none of this. This was a most unusual working arrangement where the Respondent appeared to have been hands off role with respect to the business, but took whatever profit was made by the business (even if it was modest) and accepts that he was the Employer. As the Employer it fell to the Respondent to ensure that staff are advised of their right to rest breaks and to ensure that the premises was managed in a way that all employment rights, including rest breaks were availed of by staff. This was not done.  I find this complaint to be well founded. I award the Complainant €200.00

CA-00066124 – 006  - OWT. The responsibility falls upon the Employer to advise staff and to manage the roster in a way that ensured that the Complainant received 11 consecutive hours of rest within each 24 hour period. This did not occur. I am satisfied that this complaint is well founded and I award the Complainant €200.00

CA-00066124 – 007 - OWT. The responsibility falls upon the Employer to advise staff and to manage the roster in a way that ensured that the Complainant received one rest day within each week.  This did not occur. I am satisfied that this complaint is well founded and I award the Complainant €200.00

CA-00066124 – 008 – OWT – Annual Leave. As this complaint is conceded, I find it to be well founded and I award the Complainant €2160.00

CA-00066124 – 009 – OWT – Public Holidays. AS this complaint is conceded. I find it to be well founded and I award the Complainant €240.00

CA-00066124 – 0010 – OWT – Annual Leave Allowance at end of employment. As this complaint is conceded, I find it to be well founded and I award the Complainant the outstanding annual leave that he did not receive during the course of his employment which has not already been awarded to him under CA-00066124 – 008. I award an allowance to reflect the loss of 2 weeks of annual leave €720.00

CA-00066124 – 0011 – OWT – Public Holidays outstanding at end of employment. As this complaint is conceded and the Respondent accepts that over the course of his employment the Complainant worked all of the public holidays  and did not receive renumeration in lieu of such days, I find this complaint is well founded and I award the Complainant an allowance to reflect 16 unpaid public holidays, €960.00  (these reflect the unpaid public holidays which were not already encompassed in the decision in CA-00066124 – 009 above).

CA-00066124 – 0012 – Unfair Dismissal (UD)

I do not accept the defence to the UD complaint is satisfactory. The onus of proof is on the Respondent to show that the dismissal was fair. This has not been discharged. The difficulty with the Respondent’s position is that he accepted the role of employer but not the responsibilities that travelled with that. Employing staff at arm’s length is likely to end in difficulty. It appears that the Respondent rented bar premises, engaged others to manage the business but not as partners, rather as employees. They received a salary, not a share of the profits or loss. The Respondent’s argument was that he was in a business partnership with the Complainant’s mother but while there was evidence that she was the bar manager, there was no evidence that she took profits from the business or could decide to close the business as occurred in June 2024. The Respondent accepts that he was the employer of the Complainant. As an employer, one cannot delegate the supervision and management of the business without incurring serious risk because if something adverse happens to the business and the Employer is not paying attention, then the liability for that adverse event lies with the Employer. The employment breaches that took place during this employment were multiple. Employers now have no excuse given the freely available information that is available on the obligations that employers owe to employees. The evidence in this case shows egregious default of Employer responsibility.

In terms of the complaint of unfair dismissal, the Respondent told the Complainant that he would keep him employed while the premises was being repairs. He did not do this. When the business opened in July 2024 and more formally in August 2024 (there is social media images that evidence this) he did not employ the Complainant. The fact that he later decided to close the business is not relevant to the complaint of unfair dismissal. At some stage after 6 June 2024, the Respondent decided that he would no longer employ the Complainant but he did not tell him this. It is not legally permissible for an Employer to dismiss an employee because he hears rumours that the Complainant is bad mouthing him behind his back without any fair procedures being applied. This approach is again evidences that the Respondent treated the Complainant as a person that he knew rather than as a person who he employed and to whom he owed obligations. The onus of proof to prove that the dismissal was fair has not been discharged by the Respondent. I am satisfied that the Complainant was unfairly dismissed and I award the Complainant the loss amount claimed, however I reduce this amount to 8 weeks because I am not satisfied that sufficient evidence of effort to mitigate loss has been provided. This dismissal occurred during an economically robust time for the region and at a time when tourism related  jobs are available for people with the skills that the Complainant possesses. I award the Complainant €2880.00

CA-00066124 – 001: This complaint is well founded. I award the Complainant €913.95

CA-00066124 – 002:  This complaint is well founded. I award the Complainant €203.31

CA-00066124 – 003: This complaint is well founded. I award the Complainant €60.00

CA-00066124 – 004: This complaint is well founded. I award the Complainant €360

CA-00066124 – 005: This complaint to be well founded. I award the Complainant €200.00

CA-00066124 – 006: This complaint is well founded. I award the Complainant €200.00

CA-00066124 – 007: This complaint is well founded. I award the Complainant €200.00

CA-00066124 – 008: This complaint is well founded. I award the Complainant €2160.00

CA-00066124 – 009: This complaint is conceded. I award the Complainant €240.00

CA-00066124 – 0010: This complaint is well founded. I award the Complainant €720.00

CA-00066124 – 0011: This complaint is well founded. I award the Complainant €960.00

CA-00066124 – 0012: This complaint is well founded. I award the Complainant €2880.00

CA-00066124 – 013: This complaint is withdrawn

CA-00066124 – 0014: This complaint is withdrawn