Complainant

Respondent

Anonymised Parties

A childcare assistant

A childcare facility

Representatives

Edel Powell Powell & Co Solicitors

Michael O'Sullivan’ Arra HRD.

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-00026535-001

14/02/2019

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

CA-00026535-002

14/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00026535-003

14/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00026535-004

14/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00026535-005

14/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 4 of the Protection of Persons Reporting Child Abuse Act, 1998

CA-00026535-006

14/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00026535-007

14/02/2019

The complainant was employed by the Respondent as a childcare assistant from 28th August 2017 until 20th July 2018.

This complaint was received by the Workplace Relations Commission on 7th August 2018.

The file contains seven separate complaints, these are as follows:

CA-00021029-001: Unlawful deduction under the Payment of Wages Act

CA-00021029-002: Paid less than what she claims she should have been paid under the Payment of Wages Act

CA-00021029-003: Unfair dismissal claim under the Industrial Relations Acts

CA-00021029-004: Bullying/Harassment claim under the Industrial Relations Acts

CA-00021029-005: Penalisation claim under the Protected Disclosures Act, 2014

CA-00021029-006: Penalisation claim under the Protection of Persons Reporting Child Abuse Act, 1998

CA-00021029-007: Claim for Minimum Notice under the Minimum Notice & Terms of Employment Act, 1993

This complaint was received by the Workplace Relations Commission on 7th August 2018. On 14th February 2019 the legal representative for the Complainant wrote to the Workplace Relations Commission informing the WRC that a second named respondent should be added to proceedings. The original file was given the reference ADJ – 00016397 and the second named respondent was given a file reference of ADJ – 00020032. The representative for the Respondent made a preliminary argument and this argument is summarised below.

By letter dated 14 February 2019, Solicitors on behalf of the Complainant sought to amend the employer name to (the original name) Limited. Subsequently on the same date Solicitors sought to amend the claim forms to name two employers, namely;

·       XXXXX XXXXX XXXXX

·       XXXXX XXXXXX XXXXX Limited

The complainant in seeking to include a further employer name through legal correspondence on 14 February 2019, over 6 months after the end of employment to which the claims relate, failed to submit any points of reasonable cause to extend the time limits provided. Further it is for a complainant to submit an updated form.

In any event the established test for deciding if an extension should be granted for reasonable cause shown is that formulated by the Labour Court in DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. In that case the Court set out the test in the following terms:

“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 Adjudicator’s attention is further drawn to a letter from WRC to the complainant dated 8 August 2018, where it stated that “the complaint cannot be further processed until these issues have been addressed/clarified.” One of the issues raised by the Commission was;

·       Please state the name of the Respondent/Employer ‘s Full Legal Details (see enclosed form)

In her response dated 16/08/2018 to the WRC, the complainant stated that “she had to seek advice concerning “adjudication and inspection”. It should be further noted that she names a Solicitor firm in the representation section of the complaint form.

In circumstances where no submission on reasonable cause has been provided and no amended claim form has been presented with the 2 employer names included, as well as in consideration of the test as set out above, the Adjudicator is asked to rule that the claims can only be dealt with in relation to those against the first named Respondent i.e. XXXXX XXXXX XXXXX.

The Complainant was dismissed from employment on 20th July 2018

Section 41(6) of the Workplace Relations Act, 2015 reads as follows:

41 (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.

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 no 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.

In this instant case no reasonable cause has been presented.

Complaints:

CA-00021029-001: Unlawful deduction under the Payment of Wages Act

CA-00021029-002: Paid less than what she claims she should have been paid under the Payment of Wages Act

CA-00021029-005: Penalisation claim under the Protected Disclosures Act, 2014

CA-00021029-006: Penalisation claim under the Protection of Persons Reporting Child Abuse Act, 1998

CA-00021029-007: Claim for Minimum Notice under the Minimum Notice & Terms of Employment Act, 1993

These complaints were not made within the 6 month time limit against this named respondent and I therefore have no jurisdiction to hear these complaints.

In relation to the complaints referred under the Industrial Relations Acts:

CA-00021029-003: Unfair dismissal claim under the Industrial Relations Acts

CA-00021029-004: Bullying/Harassment claim under the Industrial Relations Acts

I am satisfied that the correct respondent is the one named in ADJ – 00016397.

All pay slips produced at hearing name the employer as the first named respondent and the inspection of the premises conducted by a State agency on 7th November 2018 name the first named respondent as the Name of Service.

Please refer to Decision / Recommendation ADJ – 00016397.

Please refer to Decision / Recommendation ADJ – 00016397.