ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00009129

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00011993-001 19/06/2017  

Date of Adjudication Hearing: 18/10/2017 Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, 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.  

Preliminary Matter:

Respondent's View At the outset of the hearing the Respondent submitted that the claim was out of time. The Respondent put forward the view that the complaint was marked as received by the WRC on 19th June 2017. The Complaint Form clearly indicates that the Complainant states that he should have received the payment claimed on 1 December 2015, more than eighteen months prior to the filing of his claim. The Respondent submitted that Section 41(6) of the Workplace Relations Act 2015 provides that the complaint should be presented within the six months beginning "….on the date of the contravention to which the complaint relates…". And where the complaint refers to a specific date that is not within that six-month period, then the claim must be ruled out of time. In the within complaint, the Complainant has not presented a complaint relating to a contravention of the Act alleged to have occurred on any specific date or dates within six months of the lodgement of his complaint; the complaint is therefore out of time and should be dismissed on that basis. Complaint's View The Complainant put forward that this was an on-going matter, related to his contract and an acting up allowance. Attempts had been made at local level to settle the matter but had been unsuccessful. There had also been an attempt to enter into conciliation under the auspices of the WRC but to no avail. According to the Complainant this is an ongoing breach of the Act and as such should be adjudicated upon.  

Findings and Conclusions:

The substance of such an argument was subject of a previous case which in which a decision of the Employment Appeals Tribunal was appealed to the High Court in relation to a claim under the Payment of Wages Act, in the Health Service Executive v McDermott [2014] IEHC 331. In giving his judgement in this case, Mr. Justice Hogan found; "For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.""It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the compliant were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time." In this case, the complaint was framed in such a way that it related to an alleged contravention that preceded the lodging of the complaint by 18 months and consequently the claim is time barred.      

Decision:

Section 41 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.   As the complaint, CA-00011993-001, specifies a date more than six months before the date of submission of the complaint to the WRC, I deem the claim to be out of time and not well founded.    

Dated:   18th December 2017 Workplace Relations Commission Adjudication Officer: Roger McGrath

Key Words: Out of time, framing of the complaint