Complainant

Respondent

Parties

Maria  Wilkinson

Dining Experience Ltd Karen's Diner

Act

Complaint Reference No.

Date of Receipt

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

CA-00066814-001

19/10/2024

The complainant says that when she started to work with the respondent she was told that she and her colleagues would be paid the service charge received from the customers, to be divided between all employees.

However, at no stage did she ever receive any share of the service charge. At first, she understood it would be nearly €2000 each and then it changed to nearly €1000 so she is not sure how much exactly is owed.

In respect of the delay in submitting the complaint she says there is uncertainty about when her employment ended. Also, she had been party to a previous complaint (ADJ 52231) which went to mediation but then nothing further came of it.  

It was due to this that there was a delay in making the current complaint.

The respondent did not attend the hearing.

There was confusion on the complainant’s part about the date her employment terminated; the date stated on the WRC Complaint Form was April 19th, 2024, but she thought it may have been June 19th. 

She produced her final pay slip at the hearing, which was dated May 3rd, 2024, so I find April 19th to have been the actual date of termination after just over two months’ employment with the respondent.

The first issue faced by the complainant is whether, or to what extent her complaint is within jurisdiction, specifically time limits. (She has exceeded the one month’s service required to make a complaint.)

The complaint form was received on October 19th, 2024, which, if the date of the termination of the employment is considered, places it just one day outside the cognisable period.

Her explanation for the delay was unclear, but she said that she and a number of colleagues had been involved in an earlier referral to the WRC which resulted in mediation. She referred to a case reference number but had no further information and it is not clear exactly what part this played in the delay.

For example, the WRC does not issue single case reference numbers where several complainants are involved. Each complainant is a complainant under statute and a decision is required in respect of each complaint. The complainant in this case could not satisfactorily explain what exactly was going on in that process, nor could it be established from public WRC records. (There is no record of a Decision in the case referred to, for example).

That said, the date on which the complainant received her final salary, May 3rd is also relevant. It was the date on which a breach of the Act could be clearly discerned by the complainant.

Only then did it become clear that the payment in respect of tips etc was not included in her final salary.  She could not have known with certainty that she was not going to be paid in respect of her tips until that date, and on that basis I find that May 3rd is the date on which the breach of the Act occurred.

Accordingly, I find that her complaint is within jurisdiction in respect of that final payment.

As noted on the WRC website, tips, gratuities and service charges are commonly associated with the hospitality, tourism, hairdressing, taxi and delivery services, amongst others and the complainant was employed in a burger type restaurant.

From December 1st, 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 generated electronically amongst employees. (There is no provision for the regulation of cash tips). 

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 the respondent (who did not attend the hearing) Section 4B (2) of the Act makes it clear that an employer ‘may not retain any share of tips or gratuities received’ subject to a number of exceptions.

It is clear from the complainant’s evidence that significant tips were being generated as she was told that she might expect payments initially around €2000.00 and later around €1000.00.

Whatever became of the tips is not clear except to the extent that neither the complainant nor her co-workers received any of them. 

The complainant was paid €12.73 for a twenty hour week, or €254.60 per week. For the breach of her rights under the Act I award her four weeks wages in the amount of €1018.40

Complaint CA-000066814-001 is well founded and I award the complainant compensation in the amount of €1018.40, being four weeks’ wages.

Tips and gratuities