Complainant

Respondent

Anonymised Parties

Butcher

Supermarket

Representatives

Solicitors

Solicitors

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-00020563-001

12/07/2018

The complainant was employed as a butcher by the respondent commencing employment in September 2001. The employment was on a full-time basis and gross pay was €463.71 per week. The complainant’s employment was terminated by reason of dismissal on 10 November 2017. The complaint is in relation to the non-payment of notice money due to the complainant.

The complainant was dismissed for gross misconduct and lodged a complaint under the Unfair Dismissals Act, 1977 with the WRC.

In filling in the form an error was made and a request was made for an inspection in respect of the complaint under the Payment of Wages Act, 1991, rather than a request for adjudication.

This issue was raised at the adjudication hearing on 29 June 2018 but it was ruled that the complaint under the Payment of Wages Act could not be dealt with at that hearing.   The decision of that hearing was that the complainant was unfairly dismissed.

The complainant had initiated the original internal appeal process and received that decision on 5 January 2018. He was due 8 weeks’ notice and therefore his correct date of termination was 2 March 2018. This complaint was lodged within 6 months of that date.

Alternatively, the complainant is seeking extension of the period for lodging the complaint to 12 months due to reasonable cause.

The complaint is out of date for referral to the WRC.

The complainant is asking that the request for inspection should be substituted by the request for adjudication. The respondent can confirm that the inspection has already taken place.

The complainant was at all times in receipt of legal advice.

The complainant was dismissed for gross misconduct and was therefore not entitled to a notice payment.

The respondent gives notice of their intention to appeal the adjudication decision.

The complainant was dismissed and his employment terminated 10 November 2017. The fact that there followed an appeal process which issued a decision on 5 January 2018 does not alter that date. I accept that the matter of notice money was always an issue in dispute between the parties. I note also that the complainant appears to have been in receipt of legal advice throughout the process.

The complainant initiated complaints under the Unfair Dismissal Act and the Payment of Wages Act to the WRC and these were received on 9 January 2018. The form provides two options in respect of the latter complaint, one seeking adjudication and the other seeking an investigation by a WRC inspector. The box ticked was for inspection. Thus when the adjudication hearing took place there was no complaint in respect of the Payment of Wages Act before the adjudication officer. Following that hearing there was contact between the complainant’s representatives and the WRC and on 13 July 2018 they wrote a letter to the WRC withdrawing the request for an inspection and submitting a new complaint seeking adjudication. The decision of the adjudication officer subsequently was that the complainant had been unfairly dismissed.

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.

Subsection (8) 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 a complaint or refer the dispute within that period was due to reasonable cause.

This complaint, as noted, was presented on 13 July 2018 and as such is outside the period specified in Section 41(6) of the Act. I therefore have to consider whether the failure to present the complaint is due to reasonable cause as provided for in Section 41(8) of the Act.

The position of the complainant is that in completing the complaint form the box in relation to a request for an inspection under the Payment of Wages Act, 1991 was chosen by mistake rather than the box requesting that the complaint be dealt with by way of adjudication. The complainant’s representative further argued that it was clear from the start that there was a complaint regarding money owed in lieu of notice and it was due to an ambiguity in the form that the error occurred.

The respondent in their submission state that they should not be held accountable for what was an obvious error in submitting the complaints. It was further pointed out that an inspection had taken place as a result of the complaint and that the respondents had co-operated with this inspection. Finally, in the submission the respondent references the remarks of the Labour Court in relation to reasonable cause in Cementation Skanska v Carroll; DWT0388.

When considering the issue of reasonable cause consideration must be given to the findings of the Court in the Skanska case. In that case the Court said:

“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 excuse 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 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 on time.

The Court referred to that case when considering reasonable cause in Iarnrod Eireann v Stephen Lynch; UDD1825 andwent on to state:

“The Court is well aware from its own knowledge that a prudent representative – legally qualified or otherwise – would not proceed to refer a statutory complaint on behalf of a client without first getting the client’s express instructions to do so and the client’s express approval of the completed draft referral document / form.

I also note the quote from Redmond on Dismissal Law (3rd Edition, 2018, Para.25.1):

“The case law consistently reveals that inadvertence on the part of a firm of solicitors will not be accepted as excusing a delay.”

Therefore, in line with the Court’s reasoning in the above case, I find that the complainant’s explanation for not referring his complaint within the six-month time period does not satisfy the test of reasonable cause as interpreted and applied by the Labour Court and does not excuse that delay beyond the six-month limit.

Complaint No. CA-00020563-001:

This is a complaint under the Payment of Wages Act, 1991. I find that the complaint was not presented within the six-month time period provided by Section 41(6) of the Workplace Relations Act, 2015. I further find that the complainant, for the reasons specified above, has not satisfied the test of reasonable cause to allow for an extension of that time period as provided by Section 41(8) of the Act. The complaint is accordingly not well founded.