Complainant

Respondent

Parties

Emilia  Moreno Coco

Leeson Catering Limited

Representatives

  Self-Represented

No Appearance

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-00071234-001

01/05/2025

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

CA-00071234-002

01/05/2025

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

CA-00071234-003

01/05/2025

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

CA-00071234-004

01/05/2025

The Complainant referred her complaints to the WRC on the 1st May 2025. She claimed to be owed outstanding wages, compensation for working on Sundays, bank holiday entitlements and outstanding tips.

The Complainant commenced employment with the Respondent on the 8th April 2024. She was employed as Front of House/Waitress and she earned €13.00 per hour.

The Complainant confirmed that she was owed her wages and holiday pay as set out on her pay slips for pay periods 9 and 16 of 2025.

The Complainant stated that she did not receive compensation when she worked on a Sunday.

The Complainant stated that she did not receive her bank holiday entitlement.

The Complainant stated that when she started working for the Respondent she was told that she and her colleagues would be paid tips received from customers to be divided between all of the staff. This happened up until December 2024 but then the Complainant and her colleagues stopped being paid the tips. For the period from the 1st February 2025 until the 5th April 2025 she estimated that she was owed €200 in tips.

The Respondent did not attend the scheduled hearing of this complaint. Having carefully reviewed the file I am satisfied that the Respondent was on notice of the claim against it and the hearing date, time and venue. I waited a reasonable time before proceeding with the hearing in the absence of the Respondent.

In making these findings, I have considered the documentation submitted by the parties and the oral evidence adduced and the submissions made at the hearings summarised above.

CA-00071234-001: Organisation of Working Time Act 1997

The complaint referred to the WRC is that the Complainant  did not receive compensation when she worked on a Sunday. Taking into consideration the Complainant’s evidence I am satisfied that this claim is a duplication of the claim advanced in ADJ-00056737 / CA-00068952-002 and that the Complainant’s complaint in relation to compensation for working on a Sunday has been addressed in that Determination.

CA-00071234-002: Payment of Wages Act 1991

The complaint referred to the WRC is that the Complainant was not paid tips and gratuities collected by the Respondent. The complaint was referred to the WRC on the 1st May 2025. The Complainant confined this complaint to the period from the 1st February 2025 to the 5th April 2025.

From the 1st December 2022 the Payment of Wages (Amendment)(Tips and Gratuities) Act 2022 introduced new rules as to how employers have to share tips, gratuities and service charges.

I am satisfied that there was an agreement between the Respondent and the Complainant and her colleagues that tips would be distributed and this was clearly not honoured. While it is not clear what became of any tips collected by the Respondent section 4B(2) of the Payment of Wages Act 1991 (hereinafter referred to as “the 1991 Act”) makes it clear that “an employer shall not retain any share of tips or gratuities received by the employer by an electronic mode of payment”.

The Complainant presented as a credible witness, providing additional detail as required by the Adjudication Officer and supporting her contentions with documentation where possible. She gave honest evidence of what she believed she was owed for tips. I accept that the Complainant has no way of calculating exactly what was owed to her but she estimated that for the period from the 1st February 2025 to the 5th April 2025 she was owed €200.

Taking into consideration the evidence of the Complainant and the documentation submitted to the WRC I am satisfied that the Complainant has established her claim under the 1991 Act. I find that this complaint is well-founded and that the Complainant is entitled to compensation of €200 which I find is reasonable having regard to all the circumstances.

CA-00071234-003: Payment of Wages Act 1991

The complaint referred to the WRC is that the Respondent unlawfully deducted wages due to the Complainant set out on her payslip for pay period 9 (pay date: 27th March 2025) and pay period 16 (pay date: 17th April 2025).

Relevant Law:

The Payment of Wages Act 1991 (hereinafter referred to as “the 1991 Act”) provides the following definition of “wages” at section 1:

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

The definition of wages include pay and holiday pay.

Sections 5(1) and 5(6) of the 1991 Act provides:

5(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.

5(6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The non-payment of wages that are properly payable to an employee is therefore an unlawful deduction by the employer. The question to be decided is whether the wages claimed were properly payable.

The Complainant gave evidence that she commenced employment with the Respondent on the 8th  April 2024 and that she earned €13.00 per hour. The Complainant was issued with a pay slip for pay period 9 however, despite having worked the hours as set out on the pay slip, she was not paid her wages of €204.75 gross. The Complainant was issued with a pay slip for pay period 16 however she was not paid her holiday pay of €153.56 gross.

The Complainant was a credible witness, providing additional detail as required by the Adjudication Officer and supporting her contentions with documentation where possible. I am satisfied that the Complainant was not paid the wages that were properly payable to her. The Complainant was not paid the wages set out on her pay slips for pay period 9 and pay period 16. I am satisfied that the Complainant has established her claim to the total gross wages of €358.31 under the 1991 Act. I find that the Respondent deducted this amount unlawfully and that the Complainant is entitled to payment of compensation of €358.31 gross which I find is reasonable having regard to all the circumstances.

CA-00071234-004: Organisation of Working Time Act 1997

The Complainant claimed that she did not receive her public holiday entitlements.

The Relevant Law

An employee’s entitlement to public holidays is provided for in section 21 of the Organisation of Working Time Act 1997 (hereinafter referred to as “the 1997 Act”) as follows:

21(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely— (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day’s pay: Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

Entitlement to public holidays is separate to the entitlement to annual leave. It was held by the High Court in Royal Liver Assurance v. Macken [2002] 4 IR 427 that where the employer fails to comply with the provisions of section 21 of the 1997 Act the date of contravention is the date of the public holiday itself.

The Complainant stated that her last day of work was the 5th April 2025 and she referred her complaint to the WRC on the 1st May 2025. I note that during the cognisable period there were five public holidays, namely the 25th December 2024, 26th December 2024, 1st January 2025, 3rd February 2025 and the 17th March 2025.

The Complainant presented as a credible witness, providing additional detail as required by the Adjudication Officer and supporting her contentions with documentation where possible. Taking into consideration the evidence of the Complainant and the documentation submitted to the WRC I am satisfied that the Complainant has established her claim in respect of unpaid public holidays under the 1997 Act. I find that this complaint is well-founded and I order the Respondent to pay the Complainant compensation in the amount of €520.00 for the breach of the Complainant’s statutory rights. This award is just and equitable having regard to all the circumstances.

CA-00071234-001: Organisation of Working Time Act 1997

I decide that this claim is a duplication of the claim advanced in ADJ-00056737 / CA-00068952-002 and that Complainant’s complaint in relation to compensation for working on a Sunday has been addressed in that Determination.

CA-00071234-002: Payment of Wages Act 1991

For the reasons set out above, I find the complaint is well-founded. I order the Respondent to pay the Complainant compensation in the amount of €200.00 less any lawful deductions. This award is reasonable having regard to all the circumstances.

CA-00071234-003: Payment of Wages Act 1991

For the reasons set out above, I find the complaint is well-founded. I order the Respondent to pay the Complainant compensation in the amount of €358.31 less any lawful deductions.  This award is reasonable having regard to all the circumstances.

CA-00071234-04: Organisation of Working Time Act 1997

For the reasons set out above, I find that the complaint is well-founded. I order the Respondent to pay the Complainant compensation in the amount of €520.00 for the breach of the Complainant’s statutory rights. This award is just and equitable having regard to all the circumstances.