Complainant

Respondent

Anonymised Parties

A Hospitality Worker

A Bar and Restaurant

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008596-001

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008596-002

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00008596-003

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008596-004

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008596-005

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008596-006

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00008596-007

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00008596-008

05/12/2016

The complainant had been employed from January 2015 until May 2016 when her place of employment closed, initially as a result of power supply problems.

Some weeks later the complainant got a phone call from her employer saying that it was unlikely that the business would re-open and that she should look for another position.

Regarding her various complaints, CA-00008596-001 relates to the fact that in the period she was in employment she worked three out of four Sundays; approximately forty in all but did not receive any premium pay.

In respect of CA-00008596-002 she says that she got no annual leave for the entire period she was employed.  

CA-00008596-003 arises because she got no notice of the termination of her employment and CA-00008596-004 because she was denied access to public holidays; a total of seven in the period.

CA-00008596-005 arises because of the excess working hours which she says regularly exceeded the permitted limits. She exhibited evidence of a sequence of weeks when her working hours were 49. 52.5, 36, 58, 48, 50, 48.5, 34.5, 47, 41.4, 39.5, 41. 48.5, and 49.5.

CA-00008596-006 was withdrawn at the hearing and while the complainant was clearly made redundant she has less that the two years’ service required by the Redundancy Payments Acts.

Finally, in relation to CA-00008596-008 she says she is owed €2,800 in unpaid wages. She provided further detailed evidence in support of this complaint. This included details of monies outstanding for weeks 9 to 16 inclusive in 2016, a total of 246 hours at €10 per hour and of further amounts owing. Some payments were made to bring the amount down to €2,000 and a further €800 is due for her last two weeks of employment.

The respondent did not attend the hearing or provide any explanation for failure to do so. Notice of the hearing was sent to the registered business address.

By way of a preliminary issue the matter of whether the complaints are within the time limits arises.

A complaint must be made within six months of the incident complained of, although this may be extended by reasonable cause.

The complainant made her complaint on December 5^th 2016. This would require complaints to have occurred within the previous six months, i.e. no later than July 5^th. The complainant left her employment on May 12^th two months before this.

This was brought to her attention by the Commission in advance of the hearing and she made a submission in that regard.

The complainant submitted the following in support of her claim for an extension of time limits.

She had made a previous complaint to the WRC against her former employer but was required to re-submit it and then appears to have been advised that most of the other complaints were outside the statutory limit.

She said her failure to present the complaints within the statutory timelines was because she was trying to negotiate with the respondent, unsuccessfully as it turns out.

She also had to travel to Germany to attend to some personal matters.

In relation to the test applied in extension of time applications under the Acts, the most commonly cited dicta are those of the Labour Court in Department of Finance v IMPACT. [2005] E.L.R. 6.

In considering the criterion to be applied as to whether reasonable cause exists, the Labour Court said it was for the applicant to show that there were reasons which both explain the delay and which afford an excuse for it. This imports a clear objective standard into the test. The Court continued:

“The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. The standard is an objective one but it must be applied to the facts known to the applicants at the material time.

While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.”

Regrettably for the complainant the reasons advanced are insufficient to bring her complaint within the criteria grounding ‘reasonable cause’.

Complainants would be better advised to lodge a complaint well within the time limits which can easily be withdrawn if mediation or other negotiations bear fruit.

In respect of CA-00008596-001 for working Sundays the last Sunday the complainant could have worked would have been April 8^th, very clearly outside the limits.

And the same applies to the other complaints.

CA-00008596-006 was withdrawn at the hearing, although it too was outside the time limits.

While there are longer time limits under the Redundancy Payments Acts, and while the complainant was clearly made redundant, she has less than the two years’ service required by the Redundancy Payments Acts and therefore CA-00008596-007 is not eligible for consideration.

For the reasons stated above I do not uphold the complaints and I dismiss complaints CA-00008596-001, CA-00008596-002, CA-00008596-003, CA-00008596-004, CA-00008596-005, CA-00008596-006, and CA-00008596-007 and CA-00008596-008.

Time Limits, unpaid wages, annual leave, public holidays