ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00053926
Parties:
| Complainant | Respondent |
Parties | Nadia Clancy-Wadda | After Dark Market Square Limited |
Representatives | Self-represented | Did not attend the hearing |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00065926-001 | 11/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00065926-002 | 11/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00065926-004 | 11/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991 | CA-00065926-005 | 22/10/2024 |
Date of Adjudication Hearing: 28/02/2025
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015 and section 39 of the Redundancy Payments Acts 1967 - 2014, these complaints were assigned to me by the Director General. I conducted a remote hearing on February 28th 2025, at which I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaints. The complainant, Ms Nadia Clancy-Wadda, represented herself at the hearing. She was a manager with After Dark Market Square Limited, trading as “The Palace Bar” in Birr County Offaly. The bar closed down on April 8th 2024, with the result that all the employees lost their jobs. Ms Clancy-Wadda is seeking her entitlement to redundancy pay, outstanding wages, holiday pay and notice. She was accompanied at the hearing by three former colleagues who worked as bar tenders, Mr Vincent Kerins, Ms Caolinn Digan and Mr Jake Touhey, each of whom submitted complaints against the same employer.
No one attended the hearing for After Dark Market Square Limited and they were not represented. I examined the case file and I am satisfied that, on January 14th 2025, a company director who is known to the complainant as her former employer was notified in writing that the remote hearing was taking place on February 28th 2025 at 9.30am. On February 25th, details of the link to join the remote meeting were sent to him in writing. In the absence of any submission from the respondent, I have decided on these complaints based on the uncontested evidence of the complainant.
On September 11th 2024, Ms Clancy-Wadda submitted complaints to the WRC under the Redundancy Payments Act 1967, the Organisation of Working Time Act 1997 and the Minimum Notice and Terms of Employment Act 1973. On October 22nd 2024, she wrote to the WRC and included a complaint concerning the non-payment of her final wages. In the complaints for consideration at the hearing, I have included a complaint under s.6 of the Payment of Wages Act 1991 (complaint reference number CA-00065926-005 above).
While the parties are named in this decision, for the remainder of this document, I will refer to Ms Clancy-Wadda as “the complainant” and to After Dark Market Square Limited as “the respondent.”
Summary of the Complainant’s Case:
In July 2019, the complainant commenced employment as a bar manager with Nightlife Exclusive Limited. On March 23rd 2024, her employer changed to After Dark Market Square Limited. Both entities traded as “The Palace Bar” in Birr, County Offaly. The complainant’s final payslip indicates that, at the date of the termination of her employment, her employer was After Dark Market Square Limited. Based on this payslip and on the evidence of the complainant, I am satisfied that, in March 2024, her employment transferred from Nightlife Exclusive Limited to After Dark Market Square Limited and that, at the termination of her employment on April 8th 2024, her employer was After Dark Market Square Limited. At the hearing, the complainant said that the bar closed during the Covid-19 pandemic and she was laid off from March 15th 2020 until July 26th 2021. Her weekly wages were €784.49 for working 40 hours. In her evidence at the hearing, she said that the owner of the bar phoned her around lunchtime on Monday, April 8th 2024 and told her that it was closing for good that day. The complainant said that she kept in touch with the owner over the next few weeks, and she asked him to pay her and her colleagues what they were due in wages, holiday pay, notice and redundancy pay. On April 15th 2024, she said that the owner permitted her to use €1,385 from a creditor to pay some of the wages due to her and her three colleagues. She divided this between them, leaving an outstanding balance due in wages, plus their entitlements to holiday pay, notice and redundancy. She said that the owner contacted her “less and less” after the end of April 2024, and, after consulting the Citizens Information Service, on September 11th 2024, she and her colleagues submitted complaints to the WRC. In addition to her entitlement to a redundancy payment, the complainant claims that she was not paid €401 in wages. She also claims that she is owed one week’s holiday pay and two weeks’ pay in lieu of notice. |
Findings and Conclusions:
CA-00065926-001: Complaint under the Redundancy Payments Act 1967 Section 7(2) of the Redundancy Payments Act 1967 sets out five specific circumstances in which an employee may be entitled to a redundancy payment, the first of which is: “(a) the fact his employer has ceased or intends to cease to carry on the business for the purpose of which the employee was employed by him, or has ceased or intends to cease to carry on that business in the place where the employee was so employed[.]” As the complainant’s employer ceased operations in the place where she was employed, her job has become redundant. As she has completed more than two years of service, she is entitled to a redundancy payment. CA-00065926-002: Complaint under the Organisation of Working Time Act 1997 In her evidence, the complainant said that she took three weeks’ holidays in 2023 and before the business closed on April 8th 2024, she took one week’s holidays. I am satisfied that, in accordance with s.20(1)(c)(ii) of the Organisation of Working Time Act 1997, by April 8th 2024, the complainant had used her entitlement to four weeks’ holidays in 2023. In the leave year 2024, up to the date of the termination of her employment, she was entitled to 5.4 days’ holidays ((20 days ÷ 52 weeks) x 14 weeks). I find that, in breach of s.23 of the same Act, the respondent failed to pay her compensation for the loss of that leave at the termination of her employment. CA-00065926-004: Complaint under Minimum Notice and Terms of Employment Act 1973 Section 4 of the Minimum Notice and Terms of Employment Act 1973, provides that an employee, such as the complainant, with more than two years and less than five years of service, is entitled to two weeks’ notice from her employer in the event of the termination of her employment. As the complainant received no notice, she is entitled to be paid in lieu of notice. CA-00065926-005: Complaint under the Payment of Wages Act 1991 Section 5(6) of the Payment of Wages Act 1991 addresses the circumstances in which wages which are properly payable are not paid: (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. It is apparent from this section that, where wages are properly payable, the failure of an employer to pay such wages is an illegal deduction. I am satisfied that the failure of the respondent to pay the complainant all the wages she was due for the last week of her employment is a breach of section 5(6) of the Payment of Wages Act 1991. |
Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00065926-001: Complaint under the Redundancy Payments Act 1967 I decide that this complaint is well founded. Subject to her PRSI contribution status, the complainant is entitled to a statutory redundancy payment based on the current statutory ceiling on weekly pay of €600 and her service from July 2019 until April 8th 2024. CA-00065926-002: Complaint under the Organisation of Working Time Act 1997 I have concluded that, on April 8th 2024, the complainant had an outstanding annual leave entitlement of 5.4 days. I decide therefore, that this complaint is well founded and I direct the respondent to pay the complainant compensation of €850, equivalent to gross pay for 5.4 days. As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC. CA-00065926-004: Complaint under Minimum Notice and Terms of Employment Act 1973 I decide that this complaint is well founded. The complainant was employed by the respondent for four years and eight months. In accordance with section 4 of the Minimum Notice and Terms of Employment Act 1973, she is entitled to two weeks’ notice. I therefore direct the respondent to pay the complainant compensation of €1,570. As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC. CA-00065926-005: Complaint under the Payment of Wages Act 1991 I decide that this complaint is well founded. I direct the respondent to pay the complainant compensation of €401 gross. In accordance with s.6 of the Payment of Wages Act (as amended), I am required to direct the respondent to pay compensation as a net amount. I note from the complainant’s payslips that her deductions for PAYE, PRSI and USC from her weekly wages of €784.49 were €134.50. In respect of redress therefore, I direct the respondent to pay the complainant compensation of €341 (€401 - €60). |
Summary of Awards:
For the convenience of the parties, I have summarised below the awards made under each complaint heading.
CA-00065926-001: The complainant is entitled to a statutory redundancy payment, to be calculated as set out in the previous section.CA-00065926-002: Section 27 of the Organisation of Working Time Act 1997, €850. CA-00065926-004: Section 12 of the Minimum Notice and Terms of Employment Act, €1,570. CA-00065926-005: Section 4 of the Payment of Wages Act 1991, €341. Total award: €2,761, plus the complainant’s entitlement to a statutory redundancy payment. This total award is not subject to any deductions for PAYE, PRSI or USC. |
Dated: 10th March 2025
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Redundancy, notice, pay in lieu of notice, holiday pay, closure of business |