Complainant

Respondent

Anonymised Parties

A Labourer

A Construction Business

Representatives

John Battles & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00028952-001

11/06/2019

The Complainant is a former employee of the Respondent, a builder/maintenance contractor.

The Complainant claims that he did not receive the minimum rate of pay as set out in the Sectoral Employment Order (‘SEO’).

The Complainant submits that the application in this matter was filed on 11th June 2019 with the Workplace Relations Commission. The Complainant’s legal representative argued that shortly after the Complainant left his employment with the Respondent, the Complainant came upon the scene of his Aunt’s passing by suicide on 25th July 2018. Since then the Complainant suffered with severe anxiety which required counselling.

The Complainant exhibited a copy of a letter from Dr AB, General Practitioner. The letter dated 12th June 2019 states that the Complainant has suffered major stress, low mood and persistent anxiety since the death of his aunt. He has been suffering from post-traumatic stress type disorder with persistent thoughts, mood disturbance with fear and anxiety. He has also been suffering with insomnia with nightmares and continues to have flashbacks.

The Complainant gave direct evidence at the hearing in relation to the application to extend the time limit.

He confirmed that he left the employment with the Respondent on 20th July 2018. He said that his aunt died by suicide on 25th July 2018. As a result, the Complainant claims that he visited his GP on a regular basis. He confirmed that he did not require counselling, hospital treatment or medication.

The Complainant confirmed that he went to the Department of Employment Affairs and Social Protection in or around 27th July 2018 and has been in receipt of the job seeker’s benefit since. He also confirmed that a few weeks, possibly a month after the events of 25th July 2018 he started looking for new employment, possibly an apprenticeship. Some weeks ago he also started looking at the process of application for carer’s allowance.

The Complainant said that he was not aware of the rates of pay applicable in the industry and some 7-8 months after he had left the employment, he met a friend who worked in another construction business and was paid the correct rates. The Complainant noted that it was only then that he became aware that he might have been underpaid.   He confirmed that up to that time he had not submitted his complaint because he did not know he could have been underpaid. The Complainant confirmed that he contacted a solicitor on 4th June 2019.

The Respondent argues that the complaint was referred to the WRC outside the time limits. The Respondent also questioned the Complainant’s evidence in respects of the events of 25th July 2018. The Respondent argued that it was the Complainant’s father (who has the same first name) and not the Complainant who came upon his deceased sister.

Evidence of Mr XX, an employee of the Respondent

Mr XX said that the Complainant’s father told him that he found his sister dead and, as a result he was “in bits”.

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 precedent 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.”

I note that the Complainant’s employment with the Respondent terminated on 20th July 2018. Therefore, under Section 41(6) of the Workplace Relations Act 2015, the initiating complaint referral form must be submitted within 6 months of that date. Accordingly, the initiating complaint referral form must have been submitted by 19th January 2019. The complaint was referred to the WRC on 11th June 2019. I find that the herein complaint has been lodged outside the time limit prescribed by Section 41(6) of the Workplace Relations Act 2015.

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.”

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 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.”

Therefore, 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.

I appreciate the stress suffered by the Complainant following the death of his aunt.

However, I note that the Complainant, in his direct evidence confirmed that he was well enough and able, some two days after his aunt passing, to look after his social welfare benefits and he successfully dealt with the job seeker’s benefit application. He also confirmed that some two weeks to a month later he commenced search for a new employment.

The Complainant confirmed to this Adjudication Officer that initially he did not submit his claim to the WRC because he was not aware of his entitlements under the SEO. It was only some 7-8 months after he had resigned from his position that he became aware of the provision of the SEO. However, it took him some four more months to contact his solicitor in that regard.

I recognise that the Complainant was not aware of the provisions of the Sectoral Employment Order or the Workplace Relations Act, 2015. However, as the Labour Court found in Globe Technical Services Limited and Kristin Miller (UD/17/177), ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complainant referral form:

“It is settled law 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.”

Having carefully considered all evidence available to me, I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for submission of his claims for redress under Act.

Taking all of the foregoing into consideration, I find that I have no jurisdiction to investigate these complaints.

Having carefully considered all evidence available to me I find that the Complainant has failed to submit his complaints within the required time limit. Accordingly, I do not have jurisdiction to inquire into the complaints.  

SEO- rates of pay- preliminary issue- time limit