Complainant

Respondent

Anonymised Parties

A Special Needs Assistant

A School

Act

Complaint/ Reference No.

Date of Receipt

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

CA-00025206-001

23/01/2019

The complainant had been on a period of sick leave from February 2018.

On April 25th, 2018 he was then certified as fit to return to work but only for a limited range of duties and specifically with a recommendation that he should not lift or handle weights in excess of 15kg.

His complaint arises as a result of a shortfall during a period when payments made to him during the period of sick leave expired on April 26th, 2018.

The complainant was employed by the school but paid direct by the Department of Education and Skills (DES). He has a DES contract as a Special Needs Assistant and also a separate contract as a ‘Bus Escort’.

He has a substantial sick leave record and by April 26th, 2018 had exhausted his entitlement to paid sick leave. He did become entitled to another payment; ‘Temporary Rehabilitation Remuneration’ (TRR), equivalent to 40% of his salary.

He was certified as fit to work within the limits set out above.

The respondent said that it was not in a position to allow the complainant to return to work on the basis of the restriction recommended by the occupational health review as it operates a special needs facility and the lightest wheelchair it has is at least 15kg. No child in the school is under that weight either.

Therefore, the Board of the respondent decided that he could not be permitted to return to work and he remained in receipt of the TRR.

The respondent also raises two preliminary points; the first about whether the complaint is within the time limits specified in the legislation, and secondly about whether it is correctly named as the respondent.

The complaint was made to the WRC on January 23rd, 2019 and states that the alleged breach of the Act took place on April 11th, 2018.

This means that only a matter arising after July 24th would fall within the time limits.

There are a number of dates which might be considered breaches but none of them occur after June 29th. The others are April 11th, the date asserted by the complainant, March 23rd the date on which he ceased receiving sick pay under his bus escort contract, or July 2nd, the last day on which he was paid TRR.

He was in receipt of sick pay until April 26th, and TRR pay from then until August 27th (at the rate of 40% of his pay). So, he was on full pay from July 2nd until he returned at the end of August. This would place the latest date of contravention of the Act at July 2nd.

The complainant had union advice since at least April 30th and threatened to refer the matter to the WRC on July 12th but did not do so. Thus, there can be no reasonable grounds for extending the time limits.

The respondent also says that the correct respondent is the DES as it sets the complainant’s terms and conditions of employment and pays him direct. The current respondent has no control over any aspect of the complainant’s earnings and can only guess at what they are from material that is in the public domain.

In any event the respondent says that a reduction in pay which is attributable to a lower rate of pay arising from absence on sick leave is not a deduction under the Payment of Wages Act.

On this point it relied on the decision of the Labour Court in HSE Mid-West v Michael Power (PWD/169, April 29th 2016.

In that case the Court held that where an employee has complied with the terms of the employer’s sick leave scheme payment of sick pay, even where it is less than the ordinary working wages would not amount to a deduction for the purposes of the Payment of Wages Act.

In any event the lower rate of remuneration was provided for in his contract of employment

I must first decide on the preliminary issues.

The respondent raised two; one concerning the time limits and the other on whether it is the correct respondent.

The facts are well set out in the respondent’s submission.

The complaint was received by the WRC on January 23rd, 2019.

The complainant identified a date in April (11th) which is the earliest date to feature, and therefore the furthest from the submission date by just under ten months. The others, March 23rd the date on which he ceased receiving sick pay under his bus escort contract, or July 2nd, the last day on which he was paid TRR still fall outside the six-month period specified within which to make a complaint.

There is a twin test to determine whether the permitted extension permitted under ‘reasonable cause’ may apply; which may be summarised as the ‘explain and excuse’ test.

Failure to understand or be aware of the requirements of the legislation have never provided a basis for extension of time limits and it is noted that the claimant has advanced no reason why the time limits should be extended.

The Labour Court has held that ‘ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint cannot provide a justifiable excuse for a failure to bring a claim in time’ Rezmerita Ltd v Uciechowska DWT 1019)

It has further held that;

‘in considering if reasonable cause exists it is for the complainant to show there are reasons which both explain the delay and afford an excuse for the delay’…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 Complainant at the material time’

(Cementation Skanska v Carroll WTC0338 quoted in Craigfort Taverns v Hubacek, DWT1049 April 2010).

The complainant had been actively engaged in the pursuit of his case since a time well within the time limits and indeed threatened a referral to the WRC on July 12th in a letter to the respondent.

Had he acted on this threat his complaint would have been within jurisdiction on time limits at least.

However, he could neither explain nor offer any excuse as to why he failed to do so.

On this basis alone, his case fails. It is unnecessary to consider the other ground on juridiction.

For the reason set out above I do not uphold complaint CA-00025201-001 and it is dismissed.

Time limits.