ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00054094

Parties:

	Complainant	Respondent
Parties	Vincent Kerins	After Dark Market Square Limited

Representatives

Represented himself

Did not attend the hearing

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00065978-001	13/09/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00065978-002	13/09/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00065978-003	13/09/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00065978-004	13/09/2024

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, Mr Vincent Kerins, represented himself at the hearing. He was a bar tender 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 and Mr Kerins is seeking his entitlement to redundancy pay, outstanding wages, holiday pay and notice. He was accompanied at the hearing by three former colleagues, the bar manager, Ms Nadia Clancy-Wadda, and bar tenders, Ms Caolinn Digan and Mr Jake Touhey, each of whom submitted complaints against the same employer.

No one attended the hearing for 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 his 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.

While the parties are named in this decision, for the remainder of this document, I will refer to Mr Kerins as “the complainant” and to After Dark Market Square Limited as “the respondent.”

Summary of the Complainant’s Case:

On November 25th 2019, the complainant commenced employment as a bar tender with Nightlife Exclusive Limited. On March 23rd 2024, his 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 his employment, his 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, his employment transferred from Nightlife Exclusive Limited to After Dark Market Square Limited and that, at the termination of his employment on April 8th 2024, his employer was After Dark Market Square Limited.

In his written submission, the complainant said that the bar closed during the Covid-19 pandemic and he was laid off from March 15th 2020 until July 26th 2021. He worked 40 hours per week and his weekly wages were €520, equivalent to €13 per hour. In his evidence at the hearing, he said that the owner of the bar phoned his manager around lunchtime on Monday, April 8th 2024 and told her that it was closing for good that day. He went into work and spent the day cleaning up. At the hearing, the complainant’s manager, Ms Clancy-Wadda, said that, on April 15th 2024, 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. Ms Clancy-Wadda said that the owner contacted her “less and less” after this, and, after consulting the Citizens Information Service, on September 13th 2024 he and his colleagues submitted complaints to the WRC.

Included in his submission, the complainant provided a copy of his Revenue record for April 21st 2024. This shows that he was paid €852.70 by the respondent on April 14th. He said however, that he didn’t receive this payment and it wasn’t transferred to his bank account. He got no response from his former employer when he sent him a message on WhatsApp on April 21st to ask him why this return was submitted to Revenue.

In addition to his entitlement to a redundancy payment, the complainant claims that he was not paid for nine hours that he worked on Sunday, April 7th 2024 and for seven hours the he worked the following day, his last day at work. He also claims that he is owed four weeks’ holiday pay and two weeks’ pay in lieu of notice.

Findings and Conclusions:

CA-00065978-001: 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 his employer in the event of the termination of his employment. As the complainant received no notice, he is entitled to be paid in lieu of notice.

CA-00065978-002: 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 he was employed, his job has become redundant. As he has completed more than two years of service, he is entitled to a redundancy payment.

CA-00065978-003: 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 for 16 hours of work when his employment ended is a breach of section 5(6) of the Payment of Wages Act 1991.

CA-00065978-004: Complaint under the Organisation of Working Time Act 1997

In his evidence, the complainant said that he took one week’s holidays in 2023. I am satisfied that, in accordance with s.20(1)(c)(ii) of the Organisation of Working Time Act 1997, when his employment ended on April 8th 2024, the complainant carried over three weeks’ holidays from 2023. Up to the date of the termination of his employment, in the leave year 2024, he was entitled to 5.4 days’ holidays ((20 days ÷ 52 weeks) x 14 weeks). I find therefore, that, at the termination of his employment, in breach of s.23 of the Organisation of Working Time Act, the respondent failed to pay the complainant compensation for the loss of 20.4 days’ leave.

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-00065978-001: 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 four months. In accordance with section 4 of the Minimum Notice and Terms of Employment Act 1973, he is entitled to two weeks’ notice. I therefore direct the respondent to pay the complainant compensation of €1,040. As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC.

CA-00065978-002: Complaint under the Redundancy Payments Act 1967

I decide that this complaint is well founded. Subject to his PRSI contribution status, the complainant is entitled to a statutory redundancy payment based on the current statutory ceiling on weekly pay of €600 and his service from November 25th 2019 until April 8th 2024.

CA-00065978-003: 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 €208 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 he had very little deductions for PAYE, PRSI and USC from his weekly wages. In respect of redress therefore, I direct the respondent to pay the complainant compensation of €200.

CA-00065978-004: Complaint under the Organisation of Working Time Act 1997

I have concluded that, on April 8th 2024, the complainant had an outstanding annual leave balance of 20.4 days. I decide therefore, that this complaint is well founded and I find that, based on his hourly rate of €13.00, the complainant was entitled to €2,122 for 20.4 days’ holidays. In his evidence, he said that, on April 15th 2024, the manager, Ms Clancy-Wadda, gave him €470 gross as part-payment for his outstanding holiday pay. I direct the respondent therefore, to pay the complainant compensation of €1,652. As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC.

Summary of Awards:

For the convenience of the parties, I have summarised below the awards made under each complaint heading.

CA-00065978-001: Section 12 of the Minimum Notice and Terms of Employment Act, €1,040.

CA-00065978-002: The complainant is entitled to a statutory redundancy payment, to be calculated as set out in the previous section.

CA-00065978-003: Section 4 of the Payment of Wages Act 1991, €200.

CA-00065978-004: Section 27 of the Organisation of Working Time Act 1997, €1,652.

Total award: €2,892, 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: 05th March 2025.

Workplace Relations Commission Adjudication Officer: Catherine Byrne

Key Words:

Redundancy, notice, pay in lieu of notice, holiday pay, closure of business