PWD1917

This is an appeal by Mr Joseph Tom Murray (‘the Complainant’) of an Adjudication Officer’s decision (ADJ-00003367, dated 15 February 2018) under the Payment of Wages Act 1991 (‘the Act’). The Adjudication Officer held the complaint was not well-founded. Notice of the Complainant’s appeal was received by the Court on 6 March 2018. The Court heard the appeal in Dublin on 3 July 2019 in conjunction with the Complainant’s appeal under the Unfair Dismissals Act 1977 (UD/19/33). The matter was previously before the Court on 11 April 2018 but was adjourned on that date to allow the Parties to make additional submissions.

The Complaint Filed with the Workplace Relations Commission

The Complainant framed his original complaint to the Workplace Relations Commission (WRC) - received by the WRC on 26 May 2016 - as follows:

• “The Applicant’s contract entitles him to payment for sick pay while out sick due to a work-related illness. The Applicant was out sick from work from the 10^thof November, 2015 through to the 30^thof March, 2016 as a result of work-related stress. The Respondent Employer has refused to pay the Applicant his wages for this period.”

Mr Treanor BL for Elsatrans Limited (‘the Respondent’) raised a preliminary issue at the outset of the hearing which he submits goes to jurisdiction. He submits that, having regard to the six-month limitation period in the Act, the relevant period covered by the complaint received by the WRC on 26 May 2016 is the period from 27 November 2015 to 26 May 2016. Notwithstanding this, the Complainant’s complaint purports to refer to the period 10 November 2015 to 30 March 2016 i.e. the complaint as framed alleges that the date of contravention, being the first date on which payment was allegedly withheld, was 10 November 2015. Mr Treanor BL further submits, having regard to the decision of the High Court inHSE v McDermott[2014] IEHC 331, that the foregoing renders the entire complaint statute-barred. Counsel drew the Court’s attention, in particular, to the following passage in Hogan J’s judgment:

• “15. 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.

  16. 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 complaint 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.”

Determination

This Court’s jurisdiction derives from their being a decision at first instance in relation to a precisely stated statutory complaint referred to and decided by an Adjudication Officer This Court has no jurisdiction to permit a Complainant to amend, at the appellate stage, his or her original complaint referred at first instance to the WRC.

Having regard to the paragraphs quoted above from Hogan J’s judgment inHSE v McDermott[2014] IEHC 331, the Court finds that the within claim as initiated is statute-barred in its entirety.

The Court, therefore, dismisses the appeal. The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
MK______________________
11 July 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.