Complainant

Respondent

Anonymised Parties

A Complainant

A Pre school

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00018009-001

07/03/2018

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

CA-00018009-002

07/03/2018

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

CA-00018009-003

07/03/2018

The complainant was employed by the respondent in the respondent’s preschool from September 2014 to 30th of June 2017.

The complaints were submitted to the Workplace Relations Commission (WRC) on the 7th of March 2018. The cognisable period for the complaints dates from the 8th of September 2017 to 7th of March 2018.  The complaints were submitted under section 6 of the Payment of Wages Act, 1991 and section 27 of the Organisation of Working Time Act, 1997.   I proceeded to a hearing of these matters on the 11th of March 2019.

The complainant submits that

She was employed by the respondent for a number of years after which she was abruptly let go on the 30th of June 2017,

She did not receive her payslips,

She did not receive all of her wages,

She was not given any notice period,

She did not receive her entitlements in respect of bank holiday pay and holiday pay.

The respondent submits that

The complainant has been paid all money owed to her,

The respondent paid the complainant wages owed in two separate amounts paid to the complainant before she went on holidays,

The complainant was paid her bank holiday entitlements as well as her holiday pay.

Pursuant to Section 41(6) of the Workplace Relations Act 2015, jurisdiction to adjudicate on this complaint is limited to a six-month period beginning on the date of the contravention to which the complaint relates, extendable to 12 months for reasonable cause under Section 41(8).

The Labour Court in the case of Cementation Skanska v Carroll DWT0338; set out what might be described as the ‘explain and excuse’ test to ground an application for extending the period within which a complaint may be made beyond six months.

In that case the Court said;

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 she would have initiated the claim in time.

The complainant in response to a request for reasonable cause for the delay in submitting her complaint stated that the “reason for the delay was that up to the end of 2017 and even into 2018 (the respondent) was promising that she would sort out the problem”.

In my view, this comes nowhere near meeting either of the elements of the ‘explain and excuse’ test.   In particular I am not satisfied that there was any reason which prevented her from submitting the complaint between June and December 2017, the complainant has not adduced any evidence to the effect that she was waiting for any fact or piece of information from the respondent that was material to the making of the complaint, nor had anything new materialised to enable her to make the complaint when she actually did so.

The complainant could easily have submitted her complaint to the WRC and continued her engagement with the respondent with the option of withdrawing the complaint if she was so minded on the basis of whatever might have emerged or if the complaints were resolved. I am satisfied that her failure to submit the complaint on time was not due to some external factor over which she had no control, and which would both explain and excuse the delay.

Having considered the evidence adduced in relation to this matter I am satisfied that the complainant has failed to comply with the statutory time limits and accordingly, I do not have jurisdiction to inquire into the complaint. Consequently, her complaint fails.

Having carefully considered all of the evidence available to me I find that the Complainant has failed to submit her complaint within the required time limit. Accordingly, I do not have jurisdiction to inquire into the complaint and the complaint therefore fails.