FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : STARWOOD RESERVATIONS CORPORATION (REPRESENTED BY O' FLYNN EXHAMS SOLICITORS) - AND - VASCO LECHNER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer's Decision.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 7(1) of the Payment of Wages Act, 1991. A Labour Court hearing took place on 19th October, 2016. The following is the Determination of the Court:
DETERMINATION:
This is an appeal byMr Vasco Lechnerof the Decision of an Adjudication Officer given under the Payment of Wages Act 1991 (the Act). Mr Lechner claimed that his employer, Starwood Reservations Corporation, had breached the Act when he was not paid the appropriate remuneration for his role. The Adjudication Officer did not find in favour of his complaint.
In this Determination the parties are referred to as they were at first instance. Hence Mr Vasco Lechneris referred to as “the Complainant” and Starwood Reservations Corporation is referred to as “the Respondent”.
Background
The Complainant commenced employment as a full-time Reservations Sales Associate in the Cork Customer Contact Centre from 5thFebruary 2007 and became a Special Services Sales Assistant with effect from 16thJuly 2007. On 7thDecember 2009 he was promoted to the Ambassador Team. He was demoted to his former role with effect from 22ndJuly 2010. This decision was not appealed by him at the time. He did however invoke the grievance procedure in October 2014 when he raised numerous complaints.
On 12thAugust 2013 the Complainant applied for a 22 ½ hours working arrangement. On 11thSeptember 2013 he was offered a part-time position working 22 ½ hours as a Sales & Service Associate.
In October 2013 he went on sick leave and did not return to work. His employment terminated in July 2016. He was paid sick pay until December 2013.
The Complainant submitted a claim under the Act to the Workplace Relations Commission on 20thOctober 2015.
The Adjudication Officer considered the question of whether or not the complaint was referred within the statutory time limit stipulated by Section 6 (4) of the Act and decided it was out of time.
The Dispute
This Complainant alleged that the Respondent failed to pay him his appropriate remuneration from the moment he joined the Ambassador Team on 7thDecember 2009 and failed to pay him incentive payments associated with that role since 22ndJuly 2010.
The Respondent denied the allegations and in any event submitted that the claim was out of time.
The Law
Section 5 of the Act renders unlawful any deduction from an employee’s wages unless that deduction is authorised by the Section.
Section 6(4) of the Act provides, in effect, that a complaint may not be entertained by an Adjudication Officer (or the Court on appeal) unless it is presented within a period of 6 months beginning on the date of the contravention to which the complaint relates. This period may be extended by a further 6 months. The practical effect of this provision is that the Court has no jurisdiction to entertain a complaint that was presented outside these time limits.
Conclusions of the Court
The complaint was referred on 20thOctober 2015 and relates to alleged contraventions of the Act dating back to December 2009. The Court notes that, as the Complainant was out sick from October 2013 and had exhausted the sick pay entitlements by December 2013, he was not paid from that date forward as he was not available for work. Accordingly, it is not possible for a claim of unlawful deductions to be sustained after December 2013.
Determination
The time limit prescribed by section 6(4) runs from the date of contravention of the Act to which the complaint relates. The complaint was presented by the Complainant almost two years later. It was clearly presented outside the statutory time limit and could not be saved by the application of the extended limitation period provided for in Section 6(4).
Accordingly, neither the Adjudication Officer nor the Court has jurisdiction to entertain this claim. The Decision of Adjudication Officer is affirmed and the appeal is disallowed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd November 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.