ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00054385
Parties:
| Complainant | Respondent |
Parties | Jake Touhey | 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 27 of the Organisation of Working Time Act, 1997 | CA-00065952-001 | 12/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00065952-002 | 12/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00065952-003 | 12/09/2024 |
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 Jake Touhey, 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 Touhey is seeking his entitlement to redundancy pay, 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 Vincent Kerins, 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 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 Touhey as “the complainant” and to After Dark Market Square Limited as “the respondent.”
Summary of the Complainant’s Case:
On November 29th 2021, 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. On the form he submitted to the WRC and, in his evidence at the hearing, the complainant said that he worked 29.5 hours per week for €13 per hour, equivalent to €383.50 per week. In a submission he provided in advance of the hearing, he said that he was at work on April 8th 2024 when the owner of the bar phoned his manager and told her that it was closing for good that night. This was corroborated by the manager, Ms Clancy-Wadda, at the hearing. She said that she kept in touch with the owner to try to arrange the termination payments for her and her colleagues. She 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, and the complainant received the wages due to him. He is claiming his entitlement to holiday pay, notice and redundancy. Ms Clancy-Wadda said that the owner contacted her “less and less” after April 15th and, after consulting the Citizens Information Service, on September 12th 2024, he and his colleagues submitted complaints to the WRC. In his submission, the complainant provided a copy of his Revenue record for April 14th 2024. This shows that he was paid €246.46 by the respondent on that day. When he contacted his employer about this, he was informed that this was his outstanding holiday pay, however, he didn’t receive this payment and it wasn’t transferred to his bank account. In addition to his entitlement to a redundancy payment and holiday pay, the complainant claims that he is entitled to two weeks’ pay in lieu of notice. |
Findings and Conclusions:
CA-00065952-001: Complaint under the Organisation of Working Time Act 1997 In the documents he submitted at the hearing, the complainant included a copy of a WhatsApp exchange between him and the owner of the bar on April 22nd, 2024. In the message, he sent the owner a screen shot of the April 14th return to Revenue showing that €246.46 had been paid to him in holiday pay, although the money wasn’t paid to him. The owner confirmed that this was the amount owed. Based on this evidence, I am satisfied 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 of €246.46 for outstanding holidays at the termination of his employment on April 8th 2024. CA-00065952-002: 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-00065952-003: 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. |
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-00065952-001: Complaint under the Organisation of Working Time Act 1997 I have concluded that, on April 8th 2024, the complainant was entitled to €246.46 as compensation for outstanding annual leave. I decide therefore, that this complaint is well founded and I direct the respondent to pay the complainant compensation of €246.46. As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC. CA-00065952-002: 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 two 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 €767. As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC. CA-00065952-003: 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 29th 2021 until April 8th 2024. |
Summary of Awards:
For the convenience of the parties, I have summarised below the awards made under each complaint heading.
CA-00065952-001: Section 27 of the Organisation of Working Time Act 1997, €246.46. CA-00065952-002: Section 12 of the Minimum Notice and Terms of Employment Act, €767. CA-00065952-003: The complainant is entitled to a statutory redundancy payment, to be calculated as set out in the previous section.Total award: €1,013.46, 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 |