ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000432

Complaint for Resolution:

Date of Adjudication Hearing: 12/02/2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The complainant attended the adjudication hearing, accompanied by two advocates from a local Citizens Information Centre. Patricia Heavey of Patrick F. O’Reilly & Co. Solicitors represented the respondent company and the office manager and HR manager attended on its behalf. The respondent operates a facility in Dublin which fits tyres to cars and carries out other forms of maintenance.

Complainant’s Submission and Presentation:

In the complaint form, the complainant outlines that his complaint is made pursuant to the Payment of Wages Act and relates to the payment of overtime for a period of 2 years and 9 months. He indicates that his employment with the respondent came to an end on the 11^th May 2015.

At the hearing, the complainant submitted his contract of employment, which provides for a 39-hour working week. He said that his basic pay was €369.72 per week. He acknowledged that he received bonuses and said that they did not impact on his entitlement to be paid for additional hours worked above his rostered hours. He said that the respondent had not remunerated him for hours he worked in addition to the 39 rostered hours, comparing his pay slips with print-outs of his clock-in hours at two workplaces operated by the respondent. The complainant provided a breakdown of hours he says he was owed wages for. His representatives referred to the contract of employment and submitted that it entitles to the complainant to time-and-a-half for overtime.

The complainant said that his employment had come to an end on the 11^th May 2015. He had raised a complaint under the Unfair Dismissal Acts, but this matter was not part of this complaint. Addressing the question of the timing of his complaint, the complainant said that he did not wish to cause himself difficulties while working for the respondent, so did not raise this issue while at work. He did not make a complaint immediately after the end of his employment with the respondent as this was a difficult period and certain significant life events occurred in this time.

The complainant outlined that this Payment of Wages complaint was subject to a complaint he lodged in early October 2015 and date-stamped by the Workplace Relations Commission on the 9^th October 2015. The Workplace Relations Commission returned the form to him and he learnt in a subsequent telephone call that he had used an old form that pre-dated the enactment of the Workplace Relations Act, 2015. The 9^th October 2015 complaint also raised the issue of the end of his employment with the respondent. He sought the assistance of the Citizens Information Centre, and the complaint of the 23^rd October 2015, was referred to the Workplace Relations Commission but only addressed the Payment of Wages issue.

Respondent’s Submission and Presentation:

The respondent submits that the complainant is not entitled to remuneration as the payment for any additional hours occurs through what it described as a complex series of bonuses and allowances. It submits a schedule of hours worked by the complainant and states that the average number of hours worked per day is less than eight hours. The respondent submits that the complainant is not permitted to recover wages that pre-date the period of six months from the referral of the complaint, relying on section 6 of the Payment of Wages Act. The representatives of the respondent said that there were days that the complainant had been clocked in, but not present in work.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

This adjudication arises out of a complaint dated the 23^rd October 2015 and made pursuant to the Workplace Relations Act and the Payment of Wages Act. I do not have jurisdiction to consider the circumstances around the end of the complainant’s employment, which it was agreed by the parties occurred on the 11^th May 2015.

The first issue to address is that of time. Section 41 of the Workplace Relations Act provides that an employee may present a complaint to the Director General of the Workplace Relations Commission in respect of a contravention of Schedule 5 to the Act. Included in the Schedule are contraventions under section 5 of the Payment of Wages Act. Section 41(6) provides that an adjudication officer shall not entertain a complaint after the expiration of six months beginning on the date of contravention to which the complaint relates. This is subject to section 41(8), which allows an adjudication officer consider complaints made out of time, but within 12 months of the contravention and where the complainant can show reasonable cause for the late presentation of the complaint.

Applying the decision of Hogan J. in Health Service Executive v. McDermott [2014] IEHC 331, the relevant time period for a claim pursuant to the Payment of Wages Act is the six month period preceding the date of the complaint.

The Labour Court has provided the following test in assessing whether a complainant has shown reasonable cause in the late presentation of a complaint, i.e. in the period of 6 to 12 months after the date of contravention. In Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, the Labour Court considered “reasonable cause” in thefollowing terms:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

Looking at the circumstances of this case, the complainant has not been able to show a reasonable cause that prevented him from referring the complaint in the period immediately after end of his employment in May 2015. I appreciate that the events around the end of the employment may have been difficult (of which I did not hear any facts) and that he encountered significant life events after May 2015. I do not, however, believe that these circumstances are of such significance as to have prevented him from referring a complaint in the months of May to September 2015.

I am satisfied, however, that the complainant has demonstrated reasonable cause in the delay in the presentation of the complaint between the 9^th and 23^rd October 2015. The complainant has a date-stamped complaint form of the 9^th October 2015, where he seeks to pursue this complaint. It appears that this was returned to him and not progressed. Prior to the hearing, the respondent was not aware of this event. In these circumstances, I conclude that the complainant has shown reasonable cause for delay after the 9^th October 2015, and the relevant period for this complaint is the 9^th April 2015 to the 9^th October 2015.

I am satisfied that the complainant is entitled to be remunerated for additional hours he worked. The contract states that the complaint is expected to be flexible and that the remuneration “reflects this”, without any further clarification offered. I note that the pay slips supplied by the respondent state that the week worked as being 39 hours, when, according to the respondent’s own schedule, the complainant worked additional hours. I do not see how the “complex system” of bonuses negate the complainant’s entitlement to remuneration. I do not find that the complainant is entitled to time-and-a-half as the reference to this in the contract of employment relates only to the Sunday premium.

Given that the complaint was lodged some months after the end of the employment in question and given the limitation period provided by the Act, it is inevitable that any redress made to the complainant will not be significant. Using the complainant’s figures of the additional hours he worked, he is entitled to redress of €53.30 for 5.64 additional hours worked.

Decision:

Pursuant to the Workplace Relations Act and the Payment of Wages Act, the respondent shall pay €53.30 to the complainant as redress for unpaid overtime.

Dated:   8^th April 2016