ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002271

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

Date of Adjudication Hearing: 31/08/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) 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 did not receive payment in relation to the last two weeks of his employment. In addition no payment was received in relation to overtime and money was deducted in relation to a number of Public Holidays.

Respondent’s Submission and Presentation:

Employees were expected to work longer hours in the summer than winter and this was reflected in their pay. There was flexibility in working arrangements and the complainant had missed some days. Equipment that was in the respondent believed to be in the possession of the complainant went missing and a deduction had been made from his wages in this regard and the balance paid to the complainant in July 2015.

Decision:

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

Issues for Decision:

Preliminary Issue:

Is the complainant out of time as regards the time period set out in legislation for the lodging of complaints?

Substantive Issue:

Did the respondent withhold or deduct money due to the complainant and was this deduction in breach of the Payment of Wages Act, 1991?

Legislation involved and requirements of legislation:

The complainant was employed as a General Operative on a motorway extension project. He commenced with the respondent on 14 January 2015 and that employment terminated on 1 May 2015. His net pay was approx. €525.00 per week.

Preliminary Issue:

Section 41(6) of the Workplace Relations Act, 2015, states:

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.

Section 41(8) of the Act states:

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 was due to reasonable cause.

In this case the complainant’s solicitors submitted a complaint form to the Workplace Relations Commission on 3 September 2015. This form included a number of complaints under different legislation. There was a complaint under the Minimum Notice and Terms of Employment Act, 1973, which was addressed to the Employment Appeals Tribunal. There was a complaint under the Terms of Employment (Information) Act, 1994, which was addressed to the Rights Commissioners Service. Finally there was a complaint which had ticked a box in relation to not receiving paid holiday / annual leave entitlement and was followed by the Complaint Details box which read as follows : “I never received any holiday / annual leave entitlements and never received wages for the last two weeks of employment and I did not receive my week in hand, countless unpaid overtime hours and three Saturdays.” On the form there then appears a box entitled “Redress Options”. Two options are made available. The first option was to refer the complaint to the Rights Commissioners Service under the Organisation of Working Time Act, 1997. The second option was a complaint to the Employment Appeals Tribunal under Section 40 of the Organisation of Working Time Act, 1997. The second option was chosen in this case and the complaint went to the Employment Appeals Tribunal. In February / March 2016 there was correspondence between the EAT and the complainant’s representatives in which the EAT clarified its remit under the Organisation of Working Time Act, 1997. Following that the present complaint under the Payment of Wages Act was lodged with the WRC on 7 March 2016.

Having carefully considered the matter it would appear that the failure to present this complaint (which as noted relates to non-payment of wages and Public Holiday pay) within the six month limit arose from an error in completing the original complaint form. This does not constitute “reasonable cause” as provided for in the legislation. The Labour Court in DWT 38/2003 stated:

“The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon…and the claimant must satisfy the court that, had those circumstances not been present, he would have initiated the claim in time.”

I therefore am bound by the provisions of Section 41(6) of the Act.

Decision:

The complaint has not been referred within a period of 6 months of the date of contravention to which the complaint relates and accordingly the complaint fails.

Dated:   16^th November 2016