Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00022774-001

19/10/2018

The Complainant commenced his employment with the Respondent on 1st September 2008 in casual capacity.

On 19th October 2018, the Complainant referred his complaint to the WRC claiming that the Respondent has amended his terms and conditions of employment without an appropriate notice or agreement and has not implemented a previous decision of the WRC Adjudication Service.

The Respondent submits that the Complainant has been employed as a casual staff member since 21st September 2008.The Complainant last worked for the Respondent on 14th November 2015. The client for whom the Complainant was working asked for the Complainant to be removed from their site and not returned. The Respondent submits that attempts have been made since that time to find the Complainant work but these have been consistently refused by the Complainant.

The Respondent submits that the Complainant brought a case to the WRC in relation to the matter of his terms and conditions of employment under Section 7 of the Terms of Employment (Information) Act, 1994. The Adjudication Officer made a decision on the case on 10th July 2017 that a new contract should be issued with the terms and conditions discussed addressed, and that the Complainant should be compensated to the value of four weeks’ pay. The payment was made to the Complainant in July 2017. A revised Contract of Employment was issued to the Complainant on 13th October 2017.

The Respondent submits that the complaint form was received by the WRC on 19th October 2018 and related to the non-implementation of the Adjudication Officer’s decision dated 10th of July 2017. It is the Respondent’s position therefore that the claim should have been filed at the latest on 10th January 2018 (six months). The Respondent argues that, as per Section 41(6) of the Workplace Relations Act, the claim is statute barred.

The Complainant submits that the Respondent has amended his terms and conditions of employment without an appropriate notice or agreement. The Complainant claims that the Respondent has not implemented a previous decision of the WRC Adjudication Service.

The Complainant submits that his complaint relates to two matters. The Complainant had previously brought a claim in respect of his terms and conditions of employment to the WRC. A decision in that regard was issued on 10th July 2017. The Complainant confirms that the monetary compensation was paid. However, he argues that on 13th October 2017, as per the Adjudication Officer’s decision, the Respondent issued him with his terms and conditions of employment. The Compliant submits that the original terms were amended without his agreement. He claims that the place of work was different to what had originally been advertised. Therefore, he claims that the Respondent did not implement the decision of the Adjudication Officer and that the Respondent amended his terms of employment.

The Complainant confirmed at the adjudication hearing that he did not make an application to the District Court for implementation of the Adjudication Officer’s decision. Neither did he make an application to the WRC to do so on his behalf. However, he submitted that the matter of the changes to his terms and conditions of employment is a separate matter.

The Complainant, at the hearing applied for an extension of the time limit. The Complainant submitted that, following the receipt of the new contract he wrote to the Respondent on 19th October 2017. He received a reply on 24th October 2017. He stated that he was in telephone communication with the Respondent until March 2018 and he thought that the matter would be resolved. The Complainant submitted that he “got fed up waiting” and was subsequently advised by SIPTU to submit his claim to the WRC.

The Complainant confirmed that he was in telephone contact with the WRC in November 2017 and March 2018 and was advised to proceed with an application for implementation of the WRC decision to the District Court or to make an application to the WRC to do so on his behalf.

The Complainant’s claim relates to two matters. Firstly, the Complainant argued that the decision of the Adjudication Officer issued on 10th July 2017 was not fully implemented. The Complainant confirmed at the adjudication hearing that he did not make an application to the District Court for an order directing the Respondent to carry out the decision. He did not make a request the WRC to make the application on his behalf. The Complainant confirmed at the hearing that he was in telephone contact with the WRC and obtained advice in that regard. I find that this aspect of the Complainant’s claim is outside my jurisdiction.

Secondly, he argued that the Respondent amended his terms and conditions of employment when his new contract was issued on 13th October 2017.

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.”

Therefore, under Section 41(6) of the Workplace Relations Act 2015, the initiating complaint referral form must be submitted on 12th April 2018, at the latest. The WRC Complaint Form was received on 19th October 2018 and therefore outside the time limits prescribed by Section 41(6) of the Act.

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 by an Adjudication Officer 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 accordance with the provisions:

“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.”

In summary, the general principle is that in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay and afford an excuse for the delay.

However, in order for the Complainant to avail of the extension of time from six months to twelve months in accordance with the provision of the Act, it must be established that the claim for redress was initiated within such period not exceeding twelve months from the date of the contravention. In circumstances where the date of contravention is 13th October 2017, I am satisfied that the twelve months period commencing on that date ends on 12th October 2018. Therefore, as the instant complaint was referred to the Director General of the WRC on 19th October 2018, it is also clearly outside of the extended period of twelve months provided for in Section 41(8) of the Act.

I find that the complaint has not been referred to the Director General of the WRC within the time limits provided for in the Workplace Relations Act. Accordingly, I do not have jurisdiction to inquire into the complaint.

Time limits