FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : MEADOW COURT BAR & RESTAURANT LIMITED (REPRESENTED BY BEALE & COMPANY) - AND - SANDOR FULPESI DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision No(s) ADJ-00007902 and CA-00010537-002
BACKGROUND:
2. This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 1 October 2019.
The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr Sandor Fulpesi against Decisions of an Adjudication Officer ADJ-00007902 CA-00010537-001, 002, 0003, 004 and 005 dated 14thSeptember 2017 in complaint made against his former employer Meadow Court Bar & Restaurant Limited.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Sandor Fulpesi will be referred to as “the Complainant” and Meadow Court Bar & Restaurant Limited will be referred to as “the Respondent”.
The Complainant referred claims to the Workplace Relations Commission (“WRC”) that the Respondent was in breach of the Unfair Dismissals Acts 1977- 2015, the Equality Employment Act 1998, the Payment of Wages Acts 1991 – 2015, the Terms of Employment (Information) Acts 1994 – 2014 and the Organisation of Working Time Acts 1997 – 2015.
The Complainant’s representative attended before the Adjudication Officer, however, the Complainant failed to attend. The Respondent objected to an adjournment and argued that the claims were out of time. Following the hearing the Complainant’s legal representative informed the Adjudication Officer that they were coming off record. The Adjudication Officer held that the complaints failed for want of prosecution.
The Complainant submitted his claim under the Acts to the Workplace Relations Commission on 30thMarch 2017. He appealed the Adjudication Officer’s Decision to the Court on 17thOctober 2017. Difficulties arose in scheduling a Court hearing due to changes in the Complainant’s legal representatives and the Court’s efforts to obtain submissions from them.
Background
The Complainant was employed by the Respondent from 2006. In a letter dated 13thSeptember 2016 the Complainant’s legal representatives on his behalf submitted that his continuing employment was no longer tenable due to the conduct of the employer and accordingly maintained that he had been constructively dismissed from his employment. He also claimed that he was discriminated against, he was not paid for overtime hours, he did not receive his statutory entitlement to public holidays and was not paid a Sunday premium in breach of the various Acts he claimed under.
Preliminary Issue
Mr Ray Ryan, B.L., instructed by Beale & Co, Solicitors, on behalf of the Respondent, submitted that the complaints herein were not properly before the Court and were out of time. In support of this submission it was pointed out that the complaint was lodged with the Workplace Relations Commission on 30thMarch 2017 whereas the Complainant’s employment came to end when he resigned on 13thSeptember 2016. Thus, without prejudice to its submission on the substantive cases, it was submitted, the alleged breaches of the Acts occurred outside the cognisable time period covered by the Acts. On that basis the Respondent contended that the complaint was out of time. Furthermore, Mr Ryan stated that the Complainant had not applied for an extension of time, had shown no plausible basis to warrant such an extension and at all material times, he was being advised by solicitors.
The Complainant who was unrepresented at the hearing and was facilitated by an Interpreter provided by the Court, stated that the referral of the claims to the Workplace Relations Commission was a matter for his legal representatives.
Conclusions of the Court
The Complainant submitted his claim under the Acts to the Workplace Relations Commission on 30thMarch 2017. It is not in dispute that the last day the Complainant worked for the Respondent was 3rdSeptember 2016 and his resignation was submitted on 13thSeptember 2016. The cognisable period for the purpose of the Acts is 1stOctober 2016 to 30thMarch 2017. It is also not in doubt that no application was made to extend the time.
The Workplace Relations Act 2015 provides at Section 41(6) as follows:
- (6) 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.
- (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.
Determination
The Court dismisses the Complainant’s complaints as they are statue barred and cannot be entertained by the Court.
The decision of the Adjudication Officer is varied.
The Court so Determines
Signed on behalf of the Labour Court
Caroline Jenkinson
DC______________________
7 October 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.