Complainant

Respondent

Anonymised Parties

Supervisor

An Employer

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019263-001

18/05/2018

The complainant detailed he was owed annual leave and outstanding pay. Parties submitted correspondence following the hearing and parties were given an opportunity to respond to same.

The complainant commenced work on 29 March 2015 and ceased employment on 11th December 2017.   He advised that he was paid on 14th December but was owed monies for one days work and was also owed for 9 days annual leave which included 6.5 days carried over from the previous year.   He did not receive a contract of employment.

He advised that in the past there had been a facility to carry over days and had not been advised that this had changed. The complainant submitted that other employees were treated differently.

In response to the preliminary issues raised, the complainant advised that the respondent was well aware of his two complaints from his submitted complaint form.

The respondent advised that the complainant works under a particular Government scheme referred to as Scheme X.

Preliminary Issue

The respondent advised that the complainant had not submitted a specific complaint regarding alleged unpaid wages under the relevant legislation and that there was just one complaint regarding alleged unpaid annual leave

Substantive

It was advised that following a thorough examination of their records, they were satisfied that all holidays and monies owed had been paid in full as per the terms of the scheme.

Preliminary Issue:

The complainant did not submit two separate complaint. However, I note that on his complaint form, under the “complainant specifics details or statement” he has specified “I am still owed for one day of work and 9 days holiday pay…”.

I am satisfied that the respondent is not prejudiced by the addition of this payment of wages complaint and were on notice of same . Furthermore, I am satisfied that this matter was brought to the Respondent’s attention at an early juncture in these proceedings and as a result the Respondent’s defence of the claim has not been prejudiced as it was fully aware of the nature of the two complaints well in advance of the hearing.

Substantive Issue:

The complaints details that he was not paid all monies for all the days that he worked. I have examined the detailed submissions made by both sides in relation to what he was paid for and I am satisfied that complainant was paid all outstanding monies in relation to pay. I find this part of his complaint unfounded.

The complaint details he is owed money in relation to outstanding annual leave.

Section 19 of the Act details that an employee should be entitled to annual leave equal to

a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks

By application of the time limit provided for at Section 27(4) of the Act the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 19th November 2017 until 18th May 2018. The complaint ceased employment on 11th December 2017.

Under S (8) 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 established test for deciding if an extension of time should be granted, as requested by the complainant, is set out in the Labour Court case of Cementation Skanska (formerly Kvaerner Cementation) v Carroll, DWT0338.   In this case, the test for reasonable cause for extending the time limit to 12 months, was set out as follows:

“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.”

For an explanation of “reasonable cause” to succeed therefore, the complainant must

Explain the delay and afford an excuse for the delay;

The explanation must be reasonable;

There must be an objective standard, applied to the circumstances of the case;

There must be a causal link between the circumstances and the delay;

The complainant must show that, if the circumstances were not present, he would have submitted the claim. No reasonable cause was put forward to extend the six-month period.

I note that the hours worked were in dispute and parties had different records of what they claimed to be the actual hours worked. Having examined the records I calculate the hours worked to be approximately 123 hours, I am satisfied that the complainant is owed for 9.84 hours annual leave during the cognisable period. I find this part of the complaint well founded and require the respondent the pay the complainant €190.90 gross.

I find that the part of the complaint in relation to unpaid work is not well founded.  

I find that the part of the complaint in relation to annual leave is well founded and require the respondent to pay the complainant €190.90 gross.

Annual leave, pay