Complainant

Respondent

Anonymised Parties

Pastry chef

Restaurant

Representatives

Self

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-00031884-001

29/10/2019

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

CA-00031885-001

29/10/2019

The complainant was employed as a pastry chef by the respondent commencing employment in November 2018. The position was full-time. The employment terminated on 5 April 2019 and the complaint is in relation to a claim by the complainant that he is owed two weeks’ pay by the respondent.   The complainant’s gross pay was €500.00 per week.

The complainant was experiencing difficulties regarding delays in receiving his wages.

The complainant resigned and sought alternative employment.

At the time of his resignation the complainant was owed two weeks’ wages.

Despite promises from the respondent no payment was received.

There was no appearance by the respondent.

Complaint No. CA-00031885-001 is a duplicate of Complaint No. CA-00031884-001 which arose from the complainant inadvertently re-submitting the complaint form.

Having examined the file and consulted with the secretariat I am satisfied that the respondent was notified of the arrangements for the hearing and that no excuse has been furnished in respect of his non-attendance.

Preliminary Issue:

The complainant resigned from his position and his last day of employment was 5 April 2019.   The complaints contained in this file were received by the WRC on 29 October 2019. Section 41(6) of the Workplace Relations Act, 2015, states:

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.

As noted above the complainant’s employment terminated on 5 April 2019 and therefore the complaint has been presented outside the time provided for in the above subsection of the Act. The complainant in response stated that he had been in contact with the respondent after his departure from the employment and that the respondent had asked for more time to make the payment as he was experiencing financial difficulties. These exchanges had occurred over several months and the complainant had hoped to resolve the issue between the parties. When he realised that the respondent was not going to pay him he referred the complaint to the WRC.

Section 41(8) of the Act states:

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 complainant requested that the extension of the time limit provided for under this subsection should be applied in the present case. The issue of “reasonable cause” has been examined by the courts. The High Court in the case of Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation, (1991) ILRM 30 stated:

“The phrase “good reason”is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings.”   (Costello J.)

The Labour Court in PJ Personnel Ltd. v Clint Maguire, (AWD201) referenced Mr. Justice Costello’s findings and further stated:

“It is the actual delay that must be explained and justified.   Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay.”

I have examined the evidence provided by the complainant which includes copies of text messages between the complainant and the owner. These show the many attempts by the complainant to contact the owner and the occasional response asking for more time. I note, however, the last message from the owner on 7 July 2019 in which he stated that he could not pay anything at that time and concluded as follows: “So I’ll have to leave it with you to do whatever you wish to do – hang in with or go WRC.” It is clear from that text that there was little hope at that stage of the issue being settled and the lack of further communications confirms that view. There was still plenty of time then to file the complaint but, unfortunately, the complainant failed to do so. In these circumstances and in accordance with the precedents outlined above I am not satisfied that the complainant has established reasonable cause for the extension of the time limit as set out in Section 41(8) of the Act.

Complaint No. CA-00031884-001:

I find that this complaint under the Payment of Wages Act, 1991, has been submitted outside of the time limit provided for in legislation and that the complainant has failed to establish the existence of a reasonable cause to allow the extension of that time limit. I therefore do not have jurisdiction to hear this complaint.

Complaint No. CA-00031885-001:

As outlined above this is a duplicate of the previous complaint submitted in error.