Complainant

Respondent

Anonymised Parties

A Consultant

A Health Service Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00021004-001

03/08/2018

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

CA-00021004-002

03/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015.

CA-00021004-003

03/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015.

CA-00021004-004

03/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00021004-005

03/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00021004-006

03/08/2018

The Complainant was employed by the Respondent in various capacities from January 2006. Most recently, he worked as a Temporary Consultant until his retirement on 12th January 2018. The Complainant was paid a yearly salary of €101,320.05. Following his retirement, the Complainant was employed on a temporary basis and his contract will expire in July 2019.

It was noted by the Adjudication Officer at the hearing that the surname of the Complainant on the WRC Complaint Form does not correspond with the surname in the Respondent’s submission and the documentation exhibited at the hearing. The Complainant confirmed that his full name contains of three parts ABC. He would normally be referred to as Mr / Dr C. However, in the Complaint Form he included AB parts only. The parties agreed that the form can be amended accordingly.

The Complainant referred a number of claims to the WRC on 3rd August 2018.

The Complainant submitted in his WRC Complaint Form that he did not receive the minimum rate of pay set out in an Employment Regulation Order (Security Industry).

At the hearing the Complainant confirmed that he has never been employed by the Respondent in the security industry.

The Respondent submits that the Complainant is not employed in the security industry by the Respondent.

The Complainant has not been employed in the security industry.

I declare the complaint is not well founded.

The Respondent raised the preliminary matter of the time limits. The Respondent submits that the Complainant applied to retire from the Respondent by completing the relevant Retirement Form on 29th November 2017. The Respondent submits that the Complainant received his lump sum and pension with effect from 12th January 2018. Therefore, his complaint was referred to the WRC outside the time limit set out in the Workplace Relations Act, 2015.

The Complainant submitted his WRC Complaint Form on 3rd August 2018. He claims that he was unfairly dismissed by the Respondent on 31st May 2018 and he took up new employment with the Respondent on 15th January 2018.

In his direct evidence, the Complainant confirmed that he had applied for retirement and his employment ceased by way of retirement on 12th January 2018.

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act, 2015 which 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.”

The Complainant’s employment ceased on 12th January 2018. The six-month time limit within which the initiating complaint should have been referred to the Workplace Relations Commission expired on 11th July 2018. The Complainant referred his claim to the WRC on 3rd August 2018. The Complainant, therefore, lodged his complaint out of time.

Section 41(8) of the Act of 2015 provides, in effect, that the time for presenting a claim may be extended for reasonable cause shown for a further period of six-month but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim.

“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.”

The jurisprudence in respect of the concept of ‘reasonable cause’ is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour Court stated:

·         “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

Ø  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 that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello Costello J. (as he then was) stated as follows:

Ø  The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The Complainant was invited by the Adjudication Officer to advance the grounds in support of his application for an extension of time. The Complainant stated that he is not a solicitor and was not aware of the time limits.

The Labour Court in its determination DWT1244 Avery Weigh-Tronix v Kindsley 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 failure to bring a claim in time.”

Laffoy J. in Minister for Finance –v- CPSU and Others 2007 18ELR36 stated to the effect that ignorance of one’s legal rights cannot in law constitute a reasonable cause for not observing a statutory time limit.

On the basis of the foregoing, I find that the Complainant has not established that there was reasonable cause justifying the delay in referring his complaint.

Having carefully considered all evidence available to me, I find that the Complainant has failed to submit his complaint within the required time limit and no reasonable cause has been established to enable me to extend the time limit. Therefore, I do not have jurisdiction to hear the case.

The Complainant submitted in his WRC Complaint Form that he did not receive the minimum rate of pay set out in the Sectoral Employment Orders (Construction).

At the hearing the Complainant confirmed that he has never been employed by the Respondent in the construction sector.

The Respondent submits that the Complainant is not employed in the construction industry.

The Complainant is not employed in the construction industry.

I declare the complaint is not well founded.

The Complainant submits that that he did not receive the minimum rate of pay set out in the Sectoral Employment Order (Construction).

At the hearing the Complainant confirmed that this complaint is duplication of CA-00021004-003.

The Complainant confirmed that he has never been employed by the Respondent in the construction sector.

The Respondent submits that the Complainant is not employed in the construction industry.

The Complainant is not employed in the construction industry.

I declare the complaint is not well founded.

The Complainant claims that he does not receive the National Minimum Wage. He submits that the latest pay date on which he alleges he received a payment that is less than that to which he is entitled under the National Minimum Wage Act, 2000 is 31st May 2018.

At the hearing the Complainant confirmed that he is paid a yearly salary of €101,320.05 and works 39 hours a week.

The Respondent submits that the Complainant was employed as an Associate Specialist in Emergency Medicine at the date indicated. His gross salary for this position is €101,320.05.

The Respondent exhibited pay details for 31st May 2018, which demonstrate that the Complainant is paid above the national minimum rate of pay.

Section 23 of the National Minimum Wage Act, 2000 provides:

“(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12 month period immediately preceding the request.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of [Schedule 1],

(b) the working hours of the employee calculated in accordance with section 8,

(c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and

(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.”

Section 24 of the Act - Disputes about entitlement to minimum hourly rate of pay stipulates:

(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.

(2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information, and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,…”

I note that in his Complaint Form the Complainant stated that he had requested a statement of average hourly rate of pay from his employer. However, at hearing the Complainant submitted that, in fact no such request was made.

For the reasons set out above, I declare that I do not have jurisdiction to hear this complaint.

The Complainant claims that he did not receive the minimum rate of pay set out in an Employment Regulation Order (Security Industry).

At the hearing the Complainant confirmed that he has never been employed by the Respondent in the security sector.

The Respondent submits that the Complainant is not employed in the security industry by the Respondent.

The Complainant is not employed in the security industry by the Respondent.

I declare the complaint is not well founded.

Unfair dismissal-retirement-time limit-no jurisdiction