Complainant

Respondent

Anonymised Parties

A Worker

A Bakery

Act

Complaint/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-00025055-001

16/01/2019

The Complainant was employed by the Respondent from in or around 12 December, 2015 to 16 June, 2018 when his employment was terminated. The Complainant has brought a number of claims in connection with his employment. These were received by the WRC on 16/01/2019. At the outset the Adjudication Officer advised the parties of the time limits for submitting claims to the WRC as provided for at Section 41(6) of the Workplace Relations Act 2015 which stipulates that:

“….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”

The Adjudication Officer also advised the parties that Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension of time may be granted up to a maximum of a further six months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay.

I advised the Complainant and the Respondent that I would afford each the opportunity to address the time limit matter in the course of the adjudication hearing.

The Complainant submitted that:

1.       He was due two weeks annual leave. The Complainant stated that he had not taken any annual leave between 1/1/18 and 16/6/18;

2.       He was due two weeks pay in lieu of notice of termination. The Complainant submitted that his employment was terminated without notice on 16 June, 2018. He stated that he did not have a written contract of employment and that he had been advised by the Respondent when the business closed on 16/6/18, that he would be paid everything he was entitled to;

3.       He was due a week’s pay for work in hand which week related to when he had commenced his employment with the Respondent in mid December, 2015;

4.       That he was at all times a loyal employee.

The Complainant confirmed that he received a redundancy payment in November, 2018. He has since taken up new employment.

In relation to the time limit matter, the Complainant stated that he was unaware of the time limit for initiating a complaint with the WRC and that after he was let go by the Respondent, it was a difficult time for him and he had to look after his family. The Complainant also stated that at some point he obtained advice from Citizens Information. Prior to the adjudication hearing, the Complainant had outlined the following in a letter to the WRC:

“Please find enclosed a letter of explanation the reasons why my complaint under section 6 of the payment of wages Act 1991 was presented to you after the expiration period of 6 months which I was totally unaware of.

After completing my job interview with [the Respondent] in December 2015 I started work on a 40 hours week permanent basis 5 nites   after 3 years in June 2018 I received a phone call to have a meeting June 16th where I was told that I was being made redundant So without (?) notice my employment had ended.

The months following after my work had finished with numerous phone calls to [the Respondent] asked for pay which was outstanding to me they were adamant they were not going to pay me.

The weeks and months were taken up with my claim for social welfare and now having to seek full time employment. The months following my redundancy have been very difficult with a family to support hence the reason for my delay in forwarding my complaint”.

The Respondent outlined that it was sad that matters had come to this. The Respondent stated that it had no choice but to close down the business on 16 June, 2018 due to debts/monies owed to Revenue as outlined in a letter the business received from Revenue on 12 June, 2018. The Respondent advised that as a result, the money in its bank account was frozen which left the Respondent with no alternative but to close the business on 16 June, 2018.

In relation to the Complainant’s claims the Respondent stated:

1.       That it disputed the Complainant was owed two weeks annual leave as the Complainant had taken a weeks holiday in April, 2018;

2.       That it accepted there had been no notice of termination but explained this was out of the Respondent’s control as Revenue had frozen its bank account;

3.       That it did not dispute the Complainant’s claim for a week’s pay for work in hand;

4.       That the Respondent had had discussions with the Complainant after the closure of the business and that the Complainant had indicated at the time, that he would accept redundancy to cover the outstanding money owed to him and draw a line under matters on that basis;

5.       That as a Sole Trader the Respondent could not afford to pay the Complainant’s demands and that it had no hidden agenda.

In relation to the matter of time limit, the Respondent stated that the Complainant was arguing that his being out of the six months time limit was because he was too busy looking after his family.

I have given careful consideration to all the submissions made including at the adjudication hearing.

In the first instance, I must decide if I have jurisdiction to hear these complaints which depends on whether I decide the complaints have been made within the prescribed time limit.

Section 41 (6) of the Workplace Relations Act 2015 provides that:

“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 Workplace Relations Act 2015 provides that:

“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.”

I note that the Complainant’s employment with the Respondent terminated on the 16th June, 2018. The documentation clearly shows that his complaint was received by the WRC on 16/01/2019 – approximately one month after the expiry of the six months time limit. As already outlined, Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay. In relation to the matter of reasonable cause, the Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In the case of HSE and Dr Abdul Rauf [Determination No. FTD0817], the Labour Court stated that “A Complainant…..must also demonstrate that there are reasons but for which the case would have been referred in time” (emphasis added in bold).

In the present case, the Complainant has relied on his lack of knowledge of the deadline, that his time was taken up with his claim for social welfare, seeking alternative employment and that this was a difficult time for him with a family to support. I note that during the six months time limit period, the Complainant was dealing with the statutory authorities in relation to his social welfare and redundancy. I also note the Complainant’s confirmation in his letter to the WRC, that from the outset, he was on notice that the Respondent was “adamant they were not going to pay…”.

Taking all matters into account, I am not satisfied that the reasons for the delay in submitting the complaints to the WRC, advanced by the Complainant, amount to the circumstances contemplated in Cementation Skanska v Carroll or that they satisfy the “but for” test cited in the Rauf case.

I find that the herein complaints have been lodged outside the time limit prescribed by Section 41(6) of the Workplace Relations Act 2015. Having carefully considered all evidence available to me, I also find that the Complainant has not shown reasonable cause to empower me to extend the deadline for submission of his claims, by a further six months.

Accordingly, I do not have jurisdiction to inquire into the complaints made by the Complainant.