Complainant

Respondent

Anonymised Parties

Customer Experience Associate

A specialist recruitment agency

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-00027123-001

17/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00027124-001

17/03/2019

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

CA-00027129-001

18/03/2019

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

CA-00027239-001

23/03/2019

The Complainant was placed on a customer site and commenced employment with the Respondent on 5^th June 2018, the employment ended on 2^nd November 2018l.

The file bearing the reference ADJ – 00020705 contains four complaints submitted to the Workplace Relations Commission on different dates:

CA – 00027123 – 001 – complaint submitted on 17^th March 2019 under section 27 of the Organisation of Working Time Act, 1997.

CA – 00027124 – 001 complaint submitted on 17^th March 2019 under section 7 of the Terms of Employment (Information) Act, 1994.

CA – 00027129 – 001 complaint submitted on 18^th March 2019 under section 6 of the Payment of Wages Act, 1991.

CA – 00027239 – 001 complaint submitted on 23^rd March 2019 under section 6 of the Payment of Wages Act, 1991.

CA – 00027123 – 001 – complaint submitted on 17^th March 2019 under section 27 of the Organisation of Working Time Act, 1997.

The Complainant alleges that due to the non-payment of wages she encountered serious financial difficulty in paying her rent and was forced to spend a weekend worrying about how she would pay her rent, who to ask and finally borrow daily allowances from.

CA – 00027124 – 001 complaint submitted on 17^th March 2019 under section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant contends that she had to spend a significant amount of time doing jobs not in her temporary assignment terms. By doing so her terms of employment had been changed. Examples were provided by the Complainant.

CA – 00027129 – 001 complaint submitted on 18^th March 2019 under section 6 of the Payment of Wages Act, 1991.

The Complainant contends that she was not paid her wages on 19^th October 2018 and that the Respondent failed to implement her correct taxation details.

CA – 00027239 – 001 complaint submitted on 23^rd March 2019 under section 6 of the Payment of Wages Act, 1991.

The Complainant contends that she was not paid her wages on 24^th August 2018 and has been wrongly accused of not submitting her timecard on time.

The Claimant commenced employment on 5^th June 2018 and was placed on a Client site as a Customer Experience Associate until her cessation on 2^nd November 2018.

PRELIMINARY ARGUMENT – TIME LIMITS

The instant claims were lodged on 17^th and 23^rd March 2019 respectively and therefore the cognisable period for these claims are as follows

1. 18^th September 2018 – 17^th March 2019

2. 24^th September 2018 – 23^rd March 2019

As the claims are relating to an issue between 17^th August 2018 and 2^nd September 2018, the Respondent contends that the claims have not been presented within the requisite timeframe.   It is the Respondent’s position that the Adjudicator does not have jurisdiction to hear these claims.

The provisions of Section 41 (6) of the Workplace Relations Act 2015 are clear and unambiguous as to the requirement for a Claimant to present a claim within six months beginning at the date of the contravention to which the complaint relates at Section 6 as follows:

“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”.

An extension may be granted by an Adjudication Officer up to a maximum of 12 months where, in the opinion of the Adjudication Officer, the Claimant has demonstrated reasonable cause for the delay.  This is set out clearly in Workplace Relations Act 2015, at Section 41 (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 instant claims refer to alleged breaches of the Act from 17^th August 2018 and 2^nd September 2018 and therefore manifestly outside of the 6-month time period.  It is noted that the WRC wrote to the Claimant on 12^th March 2019 and 29^th March 2019 to inform her that it appeared the complaints did not fall within the statutory timelines and an opportunity to put forward reasonable cause was given.  The Claimant did not respond to this opportunity.

It is the Respondent’s position that no grounds exist which could be considered “reasonable cause” with regards the Claimant’s failure to lodge her claims within the prescribed period.

The Adjudication Officer’s attention is drawn to the Labour Court’s decision in Cementation Skanska (Formerly Kvaerner Cementation v Carroll DWT0338 in which the Court stated:

“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”.

The length of the delay should be taken into account.  A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.  Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.  Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

It is submitted by the Respondent that the Claimant has failed to put forward any reasonable cause which might have caused a delay in lodging proceedings despite being provided with ample opportunity to do so by the WRC.

The Respondent respectfully requests that the Adjudicator deal with the preliminary matter first and foremost and reach a conclusion on same before deciding whether the substantive claims should be heard.

RESPONDENT’S SUBSTANTIVE ARGUMENTS

The Claimant has lodged claims as follows which will be addressed hereunder:

Organisation of Working Time Act

CA-00027123      Lodged 17^th March 2019

The Claimant has alleged she did not receive her weekly rest period.  Specifically, the Claimant has stated that, during the weekend of 1 and 2 September 2018 she was worrying about her finances due to alleged non-payment of wages on 17^th August 2018.

Terms of Employment (Information) Act

CA-00027124      Lodged 17^th March

Claimant has alleged that she was not notified in writing of changes to her terms and conditions.  Specifically the Claimant has alleged that she was working a different role to that as outlined in her Terms of Assignment.  The Claimant has referred to an issue dating back to 13^th August 2018.

Payment of Wages Act

CA-00027239      Lodged 23^rd March

CA-00027129      Lodged 23^rd March

The Claimant has alleged that her wages were not paid on 24^th August 2018 and 19^th October 2018.  The Claimant has further alleged discrepancies with regards her tax.

ORGANISATION OF WORKING TIME ACT

The Claimant has alleged that she spent the weekend worrying about her finances which constitutes a failure to be provided with rest breaks.  Notwithstanding the preliminary argument outlined about with regards time limits, the Respondent refutes this claim in its entirety.

The Act outlines the following with regards weekly rest periods:

12-(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours.

By the Claimant’s own admission, she received a weekly rest break on 1^st and 2^nd September 2018.  This rest break is in accordance with the provisions of the Act laid out above.  The Claimant was scheduled to work Monday to Friday and did not work weekends.  The time card demonstrates that the Claimant received a weekend rest break.

The Act only deals with the provision of rest breaks.  The Respondent contends that manner in which the Claimant wished to spend her weekend its extraneous to the Act and no breach has occurred in this regard.

TERMS OF EMPLOYMENT (INFORMATION) ACT

The Claimant has alleged she did not receive notification in writing of a change to her terms and conditions, specifically, the Claimant has alleged she was working a different role to that as outlined in her Terms of Assignment.  Notwithstanding the preliminary argument outlined above with regards time limits, the Respondent refutes this claim in its entirety.

Section 5 of the Act outlines the following in relation to notification of changes:

5 – (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but no later than

(a) 1 month after the change takes effect

The Claimant’s Terms of Assignment is unambiguous in outlining her role as Customer Experience Associate.  At no point was the Claimant required to perform any duties other than those of a Customer Experience Associate.

As evidence of this, the Claimant has stated she had to request information relating to the performance of her role such as log in details and induction details.  Section 5 of the Act only deals with changes to the statement of terms and conditions.  As outlined above, no changes occurred that would necessitate notification in writing.  The examples provided by the Claimant do not form part of a statement of terms and conditions.

PAYMENT OF WAGES ACT

The Claimant has alleged that she was not paid her wages on 24^th August 2018 and 19^th October 2018.  Notwithstanding the preliminary argument outlined above with regards time limits (payment on 24^th August 2018) the Respondent refutes this claim in its entirety.

In relation to the 19^th October 2018 payment, the Claimant submitted her timecard on 17^th October 2018 but subsequently retracted it on 24^th October 2018.  The same timecard was resubmitted on 23^rd October 2018 and approved on 24^th October 2018.  The payment was made on 2^nd November 2018.  No breach of the Act has therefore occurred.

The Claimant was paying emergency tax upon commencement.  Once the Claimant’s tax certificate was received from Revenue, the Claimant was readjusted to Week 1 Taxation as per Revenue direction.  At the end of Assignment there was a reimbursement and subsequent taxation was at the normal rate.  The Claimant is at liberty to claim a tax refund from Revenue if deemed entitled.

CONCLUSION

In Conclusion, it is the Respondent’s contention that the claims before the Adjudication Officer are manifestly out of time and no reasonable cause exists which would have prevented the Claimant from lodging claims within the prescribed time limits.  Without prejudice to the foregoing, the Respondent contends that no breaches of the Acts have occurred.  All wages have been paid in full and no unlawful deductions have occurred.  The Claimant by her own admission received her weekly rest breaks on 1^st and 2^nd September 2018.  The Claimant at all times worked as a Customer Experience Associated and no change to her terms and conditions occurred which would necessitate notification in writing.

Preliminary Arguments.

CA – 00027123 – 001. Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The complainant refers to the weekend of 25^th and 26^th August 2018 and how she did not receive a weekly rest period because she had to spend the weekend talking to friends about borrowing money to pay her rent, this being due to a problem with her wages.

The Respondent contends that this complaint was not submitted to the Workplace Relations Commission within the requisite time frame.

“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”.

An extension may be granted by an Adjudication Officer up to a maximum of 12 months where, in the opinion of the Adjudication Officer, the Claimant has demonstrated reasonable cause for the delay.  This is set out clearly in Workplace Relations Act 2015, at Section 41 (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”.

I do not believe that there is any reasonable cause to extend the time limit. The complaint was not made within the time limits and therefore fails.

CA – 00027124 – 001 complaint submitted on 17^th March 2019 under section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant has alleged that she was not notified in writing of changes to her terms and conditions.  Specifically, the Claimant has alleged that she was working a different role to that as outlined in her Terms of Assignment.  The Claimant has referred to an issue dating back to 13^th August 2018.

I do not believe that there is any reasonable cause to extend the time limit. The complaint was not made within the time limits and therefore fails.

CA – 00027129 – 001 complaint submitted on 18^th March 2019 under section 6 of the Payment of Wages Act, 1991.

The Complainant alleges that she was not paid her wages on 19^th October 2018.

In reply the Respondent states that in relation to the 19^th October 2018 payment, the Claimant submitted her timecard on 17^th October 2018 but subsequently retracted it on 24^th October 2018.  The same timecard was resubmitted on 23^rd October 2018 and approved on 24^th October 2018.  The payment was made on 2^nd November 2018.  A copy of the payslip for this period was attached to the Respondent submission.

Whilst I accept that payment may have been delayed due to time card issues it was made.

This complaint is not well founded and therefore fails.

CA – 00027239 – 001 complaint submitted on 23^rd March 2019 under section 6 of the Payment of Wages Act, 1991.

This complaint relates to a payment issue on 24^th August 2018.

This complaint was made outside the time limits.

“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”.

An extension may be granted by an Adjudication Officer up to a maximum of 12 months where, in the opinion of the Adjudication Officer, the Claimant has demonstrated reasonable cause for the delay.  This is set out clearly in Workplace Relations Act 2015, at Section 41 (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”.

This complaint has to fail due to being outside the requisite time limits and I do not believe there is any reasonable cause to extend those limits.

Three of the complaints submitted by the Complainant are out of time and therefore deemed to be not well founded, they fail.

In relation to the complaint relating to a failure to pay on 19^th October, subsequently paid on 2^nd November, I would ask the Respondent to accept that it is simply not acceptable to have any employee waiting weeks for wages. If the situation is that client approval is required regarding time sheets etc the Respondent should consider advancing wages to employees rather than imposing financial hardship on them.

As outlined above.