Complainant

Respondent

Anonymised Parties

Financial Officer

Credit Union

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-00025991-001

04/02/2019

The Respondent submits that the claim is time barred.

The Respondent submits that the Complainant’s complaint referral form alleges that any contravention began on 24th April 2015, almost four years before the Complainant submitted his complaint form.  

The Respondent relies on the High Court decision in HSE v Mc Dermott [2014] IEHC 331 where the High Court found that “…the key question is the “date of the contravention to which the complaint relates””.

The Respondent submits that time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates”.

The Respondent submits, therefore, for the purposes of this limitation period everything turns 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.

In his complaint referral form the Complainant states that he should have received payment on 31st December 2018. However in the body of his complaint it is clear that his complaint relates to the period from April 2015 to November 2018 and that he is seeking full retrospection for that period. It is submitted, therefore, that the entirety of the Complainant’s claim is in fact time barred.

The Complainant submits that he did not receive payment which was due to him in December 2018 in respect of additional hours worked between 24th April 2015 and November 2018.

In response to the Respondent’s submission that his complaint is time barred, the Complainant submits that he is a lay person who could not possibly be expected to know the provisions of the relevant legislation.

The Complainant submits that legal advice relating to the issue should have been sought when he brought the issue to the attention of the Board of the Credit Union and that he should have been made aware of his rights. The Complainant submits that instead the issue was ignored and he was placed at a disadvantage.

The Complainant contends that the breach occurred when the issue was not attended to by the Board of the Credit Union in December 2018 at the time of his retirement. Up to that point the issue was, as it were, “in a pending state" or limbo – not denied but also not accepted. The Complainant submits that he fully expected the matter would be dealt with.

The first matter I must decide is if I have jurisdiction to hear this complaint.

In making my decision, I must take account of both the relevant legislation and the legal precedents in this area.

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.”

In HSE v Mc Dermott [2014] IEHC 331 the High Court considered in detail the wording of the time limits in payment of wages case and at paragraphs 14 and 15 stated:

“…the key question is the “date of the contravention to which the complaint relates.” In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

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.”

In its judgment the High Court provided an example of the difference that the framing of a complaint can make to whether the claim is outside of the time limit or not.

“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.”

In light of the findings of Hogan J in HSE v Mc Dermott, I have considered how the complaint was framed in this case. In Mc Dermott, the Complainant was permitted to succeed in his claim for a deduction in pay due to his complaint being lodged on 16th June 2011 with a reference period of January 2011- June 2011. The facts of that case are distinguished from the herein case.

In the complaint referral form received by the WRC on 4th February 2019, the Complainant states that he should have received payment in December 2018. However, it is clear from the narrative in the complaint referral form, and his submissions at the hearing, that this complaint relates to the period from 24th April 2015 to November 2018 and that the Complainant is seeking full retrospection for that period. This places the complaint well outside the acceptable limits of 6 months of contravention or of 12 months by extension through reasonable cause. I find, therefore, that the complaint is not framed in a manner which allows me jurisdiction in the case.

I fully accept that the Complainant was not aware of the findings of the Hight Court in HSE v Mc Dermott and its implications for his claim.

In this regard, however, I am guided by the Labour Court’s findings in the case of Patrick Hoare & Sons Limited and Liam Donnelly where the Court stated that it must follow the dictum of Laffoy J in Minister for Finance and CPSU and Others 2007 18ELR36 to the effect that ignorance of one’s legal rights cannot in law constitute a reasonable cause for not observing a statutory time limit.

Taking all of the above into account, I find that the herein complaint has been lodged outside the time limits prescribed by Section 41(6) of the Workplace Relations Act 2015 and I find that I do not have jurisdiction to hear it.

I find that I do not have the jurisdiction to hear this case.

Payment of wages – date of contravention – HSE v McDermott