ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000489

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00000688-001	07/11/2015

Date of Adjudication Hearing: 04/03/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998 following the referral of the complaint to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant commenced work with the respondent in 2006. Then she was on a fixed term contract. She was made permanent in 2012. Prior to 2012 she worked with three men, all of whom were Irish. They are being paid for 44 hours. Every hour worked after 39 hours received 1.5 hours remuneration. Her fixed term contract stated she would be paid for 44 hours. However when she was made permanent she was not paid 44 hours but 42 hours. The three men she works with are also permanent members of staff. They, like her, worked a long week followed by a short week. The long week was five 12 hour night shifts. The short week was two 12 hour night shifts. X is the only one who does the same work, shifts and hours as the complainant. The other two work on reception. They too do the same hours and shifts but different work. One week there was a mistake in her wages and she went to wages department to sort it out. That is when they told her she was only being paid for 42 hours. As in her previous fixed term contract her new contract stated that any hours worked after 39 hours has an over time rate of 1.5 hours per hour worked. She did not know what her colleagues were being paid until the first bank holiday weekend after she was made permanent, which was May 2012. There was a mix up with bank holiday pay. When she discussed the issue with her work colleagues she discovered that they were being paid 44 hours despite the fact that they did the same hours as her. She e-mailed management in May, 2012 asking them to clarify the matter. Her manager replied and said she is paid for the work she has done. She didn’t lodge her claim because she thought they would deal with it. She was also out on maternity leave from February, 2014 to August, 2014. She didn’t do anything about it until she realized they were not going to move on the matter. That is when she lodged her claim. She doesn’t know why they are doing it. Possibly, because she is a woman. Possibly, because she is not Irish or it could just be a mistake.

Respondent’s Submission and Presentation:

Issues for Decision:

Whether the claimant’s case is statute barred.
Section 7 Employment Equality Act, 1998.

Legislation involved and requirements of legislation:

Section 41 Workplace Relations Act, 2015

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8)An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The date of the contravention to which the complaint related was sometime in early 2012. The complainant believes it was when she received her first pay cheque which was in February, 2012 but couldn’t be more precise. On that basis the complainant had 6 months to file her claim from February, 2012. She failed to do so until November, 2015. She also failed to show reasonable cause.

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.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have investigated the above complaint and make the following decision:

The complainant’s claim is statute barred.

Dated: 1^st July 2016