ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00022111

Parties:

Complaint:

Date of Adjudication Hearing:  22/08/2019

Workplace Relations Commission Adjudication Officer:  Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

Preliminary Points

Respondent

1.1 The Respondent is part of a multinational company with locations in

Australia, Brazil, Canada, Guinea, Hungary, Iceland, The Netherlands, Norway, Saudi

Arabia, Spain, Suriname and the United States.

1.2 The Respondent and the S A M C formed a joint venture in

2009 that has created the world’s largest, lowest cost fully-integrated aluminum

facility. The project includes a bauxite mine situated in central Saudi Arabia, which

connects by rail to an integrated facility consisting of an alumina refinery, smelter,

casthouse and rolling mill on the Arabian Gulf coast. The Respondent’s developed Natural

Engineered Waste Water Treatment System established is a first of its

kind in Saudi Arabia and will ultimately reduce water demand by nearly 7.5 million

litres a day.

1.3 The Complainant commenced employment with the Respondent circa March 2016

and signed a legally binding and fully enforceable Letter of Understanding with the

Respondent on 21 October 2015. The said Letter of Understanding,  hereto expressly confirms that the Complainant was to work in the Kingdom of Saudi Arabia as the Process Control Engineer. The said Letter of Understanding makes absolutely no reference whatsoever to the Complainant working in Ireland or having any rights or entitlements as a matter of Irish employment law. The said Letter of Understanding further clarifies that the Complainant was to be responsible for paying

tax in Saudi Arabia, as applicable.

Overview of the Respondent’s Position

1.4 There are three significant issues that the Respondent respectfully submits must be

addressed by the Workplace Relations Commission (the “WRC”) in dealing with this

matter. The three issues are:

(i) That the complaint herein is frivolous and vexatious in that the Complainant

does not have standing to bring his complaint before the WRC arising from

statutory entitlements under Irish employment law when he never worked in

Ireland and has at all times worked in Saudi Arabia;

(ii) That the Complainant’s claims have been brought out of time and accordingly

are statute-barred, as established in settled case law of the Superior Courts

on the correct interpretation of the Payment of Wages Act 1991 (the “1991

Act”).

(iii) That, without prejudice to the foregoing, the dispute over the alleged non-payment

of the type of incentive payment scheme at issue here is not

something which the WRC can determine, having regard to a number of

Labour Court authorities in similar cases.

PRELIMINARY ARGUMENTS

2 The complaint herein is frivolous and vexatious

2.1 The Complainant has, since the commencement of his employment with the

Respondent circa March 2016, worked in Saudi Arabia and he has never worked in

Ireland. The Respondent has no operations or presence in Ireland. On that basis,

the Complainant does not have jurisdiction to bring the complaint in Ireland and there

is no basis for the matter to proceed before the WRC. Accordingly, the Respondent

requests that this matter is struck out on the basis that the WRC does not have

jurisdiction to hear this matter and that the complaint in this matter is frivolous and

vexatious, as provided for in section 42(1) of the Workplace Relations Act 2015 (the

“2015 Act”) which provides that an adjudicator “may, at any time,

dismiss a complaint or dispute referred to him or her under section 41 if he or she is

of the opinion that it is frivolous or vexatious.” It is respectfully submitted that the

present case is precisely the sort of case to which this jurisdiction should be applied.

2.2 Furthermore, and in circumstances where the Complainant is based in Saudi Arabia

and has never worked in Ireland, the Respondent considers it an abuse of process for

this matter to proceed before the WRC particularly in light of the potentially

substantial costs that could be incurred by the Respondent in that regard.

2.3 The material exhibited or referred to by the Complainant in his WRC Complaint Form

(the “Complaint Form”) and subsequent documents does not illustrate any link

whatsoever between the Complainant’s work and statutory Irish employment rights

protection. There is no mention whatsoever of the applicability of any Irish legislation

to his employment, which took place exclusively in Saudi Arabia.

3 The Complainant’s complaints are statute-barred

3.1 Further or in the alternative and without prejudice to the foregoing, the Complainant’s

complaints herein are manifestly statute-barred. The Complaint Form herein was

issued on 10 June 2019. It is essential to examine the manner in which the

Complainant has framed his complaint in his Complaint Form. Under the heading

‘Employment Details’, the Complainant identifies as his date of commencement 10

March 2016. Under the heading ‘Specific Complaint CA-00028944-001’ the

Complainant states that he should have received the payment on 10 June 2019 – the

very same date as the date of his Complaint Form. In framing his complaint in detail

under the heading ‘Complaint Specific Details or Statement’, however, the

Complainant commences this portion of his Complaint Form by stating:

“Note that the issue of non-payment of my incentive compensation has been an

issue from commencement of my employment and continues to this day as I am

still employed by the same company…”

3.2 In subsequent e-mail correspondence to the WRC dated 10 June 2019 (see Appendix

3), the Complainant submitted supporting documentation in regard to his complaint.

At points 3 and 4 thereof, the Complainant includes:

“My 2017 annual compensation letter from the Respondent showing that they paid me zero

incentive compensation despite receiving a HIGH rating for my yearly evaluation.

My 2018 annual compensation letter from the Respondent  showing that they paid me zero

incentive compensation despite receiving a HIGH POSITIVE rating for my yearly

evaluation.”

3.3 The Complainant goes on to say that since these two performance ratings the

Respondent has “failed to evaluate my yearly performance or provide a compensation

letter”. It is thus clear that the manner in which the Complainant has framed his

complaint herein means that he is unequivocally statute-barred.

3.4 In this regard, the Respondent contends that the instant complaints are statutebarred,

not having been brought within six months from the date of the alleged

contravention. Accordingly, the WRC does not have jurisdiction to hear the complaint.

3.5 Reliance is placed on the decision of the High Court in HSE v McDermott[2014]

IEHC 331 (which is exhibited at Appendix 4 hereto), in which Hogan J emphasised

that, in construing the relevant language in section 6(4) of the 1991 Act, namely,

 “within the period of 6 months beginning on the date of the contravention to which the

complaint relates”, the first thing to note is that no special meaning has been ascribed

to the word “contravention” by the 1991 Act, so that it must be given its ordinary,

natural meaning. Hogan J continued:

“13. We may next observe that the actual language of the sub-section is clear,

because it is the words “contravention to which the complaint relates” which are

critical. It may be accepted that every distinct and separate breach of the 1991 Act

amounts to a “contravention” of that Act. If, for example, an employee is paid

monthly and the employer makes unlawful deduction X in respect of salary for

every month in a two year period it might be said in the abstract that there have

been 24 separate “contraventions” of the 1991 Act during that period.

14. Yet the relevant statutory language takes us somewhat further, because 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.

15. 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.

16. 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.

17. It may be that when enacting s. 6(4) the Oireachtas did not fully appreciate that

everything might turn for the purposes of time on the actual manner in which the

particular complaint was actually framed by the employee, but the language of the

sub-section really admits of no other conclusion. Nor can it be said that such a

conclusion is absurd in any way.”

3.6 Reliance is placed on the decision of the Labour Court in Tom Joseph Murray v

Elstatrans Limited (Labour Court, PWD 1917, 17 July 2019) (which is exhibited at

Appendix 5 hereto) which applied the approach in McDermott on the statute bar

issue. Accordingly, the Respondent submits that the Complainant’s case herein is

statute-barred.

4 The Complainant’s complaint in any event not stateable

4.1 Without prejudice to the foregoing, the Complainant’s complaint about the non-payment

to him of incentive compensation is not a matter which the WRC can fairly

adjudicate upon in this complaint and is accordingly unstateable.

4.2 Reliance is placed on the decision of the Labour Court in this regard in HR Foods

Limited v Noel O’Loughlin (Labour Court, PWD 1815, 21 March 2018) (which is

exhibited at Appendix 6 hereto), where the Court held:

“Neither the bonus scheme as outlined in the Complainant’s contract of

employment nor the document outlining his KPIs for 2017 sets out any metric for

determining what level of bonus was payable to the Complainant having regard to

his performance in any particular quarter. It is not for the Court to superimpose a

metric on such a bonus scheme nor it is (sic) the Court’s role, in an appeal under

the 1991 Act, to attempt to retrospectively assess the Complainant’s actual

performance vis-a-vis his agreed KPIs. In the circumstances, therefore, the

Complainant has not made out a stateable case to the Court in respect of this

aspect of his claim.”

4.3 Similarly, in its recent determination in Boston Scientific v Trevor Cotter(PWD

1919, Labour Court, 22 July 2019) (which is exhibited at Appendix 7 hereto) the

Labour Court held that it was not prepared to make a finding that an employer had

acted unreasonably or capriciously in relation to the alleged underpayment of a

discretionary bonus payment absent compelling evidence.

4.4 Accordingly, the Complainant has not demonstrated a stateable case herein.

Conclusion

5.1 In conclusion, it is respectfully submitted that the WRC should not proceed to hear or

adjudicate upon this matter upon the basis of the exceptionally serious and

compelling preliminary objections outlined above.

5.2 Without prejudice to the foregoing, the within complaint should be rejected as not

disclosing any stateable complaint.

5.3 The Respondent reserves the right to adduce any further evidence as may be

appropriate or as necessary in any further submission or hearing of the matter.

Complainant

The Complainant stated that his employer is an Irish registered company. He accepted that he worked in Saudi Arabia and never worked in Ireland. He accepted that he is not paid in Ireland and his mandatory statutory deductions are not with the Irish State.  His employer is not registered in Saudi Arabia, but in Ireland. He believes that he is employed by an Irish based company and so he may take a claim in this country.

He accepts that he has claimed for non-payment of an incentive compensation package dating back to the commencement of his employment and becoming payable in 2017 at least. He stated that he was unaware of the High Court decision on how claims are framed and its implication for the statutory time limits applying to the Payment of Wages Act. He believes as his employer is an Irish registered company, he has the right to prosecute his case in this country.

Findings on the Preliminary Points:

before the Workplace Relations Commission arising from statutory entitlements under Irish employment law when he never worked in Ireland and has at all times worked in Saudi Arabia.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons, I have decided that the Complainant does not have standing to bring a case before the Workplace Relations Commission.

I have decided that this claim fails, as it is misconceived.

I have decided that as I do not have jurisdiction to hear this case the other preliminary points need not be addressed.

Dated:   19^th September 2019

Workplace Relations Commission Adjudication Officer:  Eugene Hanly

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