Complainant

Respondent

Anonymised Parties

Social Media & Digital Lead

Service Station Provider

Representatives

Self 

Sherwin O'Riordan Solicitors

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-00034780-001

21/02/2020

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

CA-00034780-002

21/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00034780-003

21/02/2020

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

CA-00034780-004

21/02/2020

The complainant was employed as a Social Media and Digital Lead for the respondent on a fixed-term contract from 19 March to 19 September 20219 at a salary of €35,000. She claims she was not paid for overtime she worked, she did not get a daily rest break and her conditions were not the same a permanent employee. She also raised a dispute regarding bullying and harassment procedures.

CA-00034780-001 – Payment of Wages Act 1991

The complainant says she often worked late in the evenings, at home in the evenings and at weekends. This work was in excess of her contract hours and she did not paid overtime for this extra work. She estimates she worked, on average, an extra 12 hours per week and is claiming a total of €5,616.

She also says that at an off-site meeting on 6 June 2020 her line manager offered her a one month extension to her contract but this did not materialise and she is claiming €2,917 for non-payment of this month’s salary.

CA-00034780-002 – Organisation of Working Time Act (OWTA), 1997

The complainant says she was repeatedly contacted on her personal Linkedin page by her manager in the evenings, between 9pm and 10pm and at weekends with queries she had to reply to. This meant she did not get a daily rest period in accordance with the OWTA. She has not kept records of the days when this occurred.

CA-00034780-003 – Protection of Employees (Fixed-Term Work) Act, 2003

The complainant says she was paid less than the person she was covering for, she did not receive training given to permanent members of staff, she was excluded from important internal meetings, she was reprimanded when she contacted the person she was covering for and she was given insufficient time and information to properly consider the possibility of remaining with the respondent at the end of her contract.

CA-00034780-004 – Industrial Relations Act 1969

The worker says she was subjected to bullying treatment by her manager and gave evidence of a number of incidents. Towards the end of her contract she took her one and only day off sick and when she returned she was unable to logon to her computer. She brought these issues to the attention of the employer but no action was taken.

CA-00034780-001 – Payment of Wages Act 1991

The respondent submits that the complaints relate to the period March to September 2019 and the complaint was submitted to the WRC on 21 February 2020. They quote section 6 (4) of the Payment of Wages Act which states: “A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.” They cited WRC decision ADJ-00007212 in submitting the claim is well outside the 6 months time frame within which the complainant is required to bring her claim.

Without prejudice to their contention the claim is out of time, they say that the complainant has failed to establish any breach of the legislation as having occurred, as the overtime payment the complainant alleges is owing to her does not fall within the statutory definition of wages. There is no contractual basis for the payment of the overtime claimed. It is also denied the complainant worked the additional hours claimed. Whilst there were some discussions around the possibility of the complainant remaining in employment with the respondent, there was no contract between the parties.

CA-00034780-002 – Organisation of Working Time Act (OWTA), 1997

The respondent says this claim is statute-barred as section 27 (4) of the OWTA states: “a rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. They refer to the same case as quoted above for CA-00034780-001 to support their contention the claim is out of time.

Without prejudice to this contention, it is denied there was any breach of the OWTA and the complainant has failed to produce proper documentary evidence to support her claim.

CA-00034780-003 – Protection of Employees (Fixed-Term Work) Act, 2003

The respondent says the complainant has failed to identify a comparable permanent employee for the purpose of this complaint. Without prejudice to this contention they say this claim is statute-barred as it is out of time in the same way as the two previous claims.

The respondent says there was a difference in pay between the complainant and the person whose role she was covering but this was because of differences in the roles undertaken.

CA-00034780-004 – Industrial Relations Act 1969

The employer chose not to give any evidence in respect of this claim as they say internal procedures were available to the complainant but not used.

Preliminary Issue – time limits

The respondent submits that claims CA-00034780- 001, 002 and 003 are all out of time. The respondent cited 2 High Court cases to support this contention; [2014] IEHC 154, Alan Moran and The Employment Appeals Tribunal and The Health Services Executive, and [2014] IEHC 331, Health Services Executive and John McDermott. The second judgement was delivered shortly after the first and paragraph 26 states: “It is accordingly clear that, just as in the present case, the decision in Moran turned entirely on the manner in which the complaint had been formulated in that case. The claim was accordingly held to be time-barred precisely because the complaint “related” to a time period well beyond the six months statutory period. Indeed in the final paragraph which I have just quoted, Keane J. clearly hinted that he would have arrived at a different conclusion had the complaint been formulated differently, so that it “related” to a different time period which was not statute-barred.”

In both High Court cases quoted above the claims related to decisions taken more than two years before the claims were submitted and related to the ongoing effects of those decisions. In the three claims before me the complainant was employed by the respondent from 19 March to 19 September 20219 and claims relate to incidents throughout the period. She submitted her claims to the WRC on 21 February 2020. This is 5 months and 2 days after the end of her employment. As such the claims are within the overall time limits of the three pieces of legislation. Therefore, I conclude the claims are “formulated differently” and I am not bound by the cited cases. I will deal with the specifics of each claim below.

CA-00034780-001 – Payment of Wages Act 1991

Section 6 (4) of the Payment of Wages Act states: “A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.” The claim in relation to overtime relates to a number of events over the course of the complainant’s employment. I can only look at the alleged contraventions that occurred within six months of the date the claim was referred: 21 February 2020. Therefore, I will look at events between 22 August 2019 and when the complainant left on 19 September 2019.

The complainant submits she worked an average of 12 hours overtime per week and she was not paid this by the respondent. The complainant provided no clear evidence of when and why she worked the extra hours. Furthermore, I note the respondent’s “General Terms and Conditions” provide that overtime should be agreed in advance with your line manager.” This was never done by the complainant, nor did she attempt to make any claim for the overtime after she had worked it. I therefore find the claim for non-payment of overtime is not well-founded.

The other part of the claim under the Payment of Wages Act is the complainant’s contention she was entitled for payment of one month’s wages she was entitled to for an extension of her contract she was allegedly promised in a meeting which took place off-site on 6 June 2019. As this meeting took before 22 August 2019 I conclude this part of the claim to be out of time and is therefore, not well founded.

CA-00034780-002 – Organisation of Working Time Act (OWTA), 1997

Section 27 (4) of the OWTA states: “A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

The claim in relation to the lack of rest periods relates to a number of events over the course of the complainant’s employment. I can only look at the alleged contraventions that occurred within six months of the date the claim was referred: 21 February 2020. Therefore, I will look at events between 22 August 2019 and when the complainant left on 19 September 2019.

The complainant says that on many evenings she received messages from her line manager which she had to respond to. The respondent says the complainant has failed to produce proper documentary evidence to support her claim.

Section 11 of the OWTA states: “An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.”

In evidence the complainant could not give a satisfactory explanation as to why she felt “compelled” to respond to the messages that were sent in the evenings and there was no discussion of the issue with her line manager. In these circumstances I conclude the complainant broke the daily rest period and the complaint is not well founded.

CA-00034780-003 – Protection of Employees (Fixed-Term Work) Act, 2003

The respondent, by reference to the High Court cases cited above, contends this claim is out of date. Claims are made in accordance with section 41 of the Workplace Relations Act, which states at subsection 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”. And Section 6 (1) of the Act states: “Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.” The conditions of employment pertained to the complainant during the whole course of her 6 months employment. As the complainant was made within six months of the end of that employment I conclude the complaint was made within the statutory time limits.

The complainant says she was paid less than the person she was covering for, she did not receive training given to permanent members of staff, she was excluded from important internal meetings, she was reprimanded when she contacted the person she was covering for and she was given insufficient time and information to properly consider the possibility of remaining with the respondent at the end of her contract.

The only person who the complainant put forward who could come into the category of “comparable permanent employee” would be the person who was on maternity leave and whose role the complainant was covering. The respondent submits the complainant’s salary was below that of her comparator as she was not carrying out her full range of duties, as some had been taken on by her line manager. She received adequate training to carry out her role, the meetings referred to were discussing campaigns that would start after the complainant left and a permanent employee would not be discussing a possible extension to their contract.

On the basis of the evidence presented to me, I conclude that the complainant has failed to provide sufficient evidence to support her contentions and her claim is not well founded.

CA-00034780-004 – Industrial Relations Act 1969

The employer chose not to give any evidence in respect of this claim as they say internal procedures were available to the complainant. The complainant gave evidence of some incidents she claims amount to bullying. However, she gave no evidence that she made any complaint about these evidence whilst she was employed by the employer She provided copies of emails sent after her employment ended which included reference to the behaviour of her line manager.

As the worker failed to make a complaint to the employer while she was employed I conclude I am not in a position to investigate this dispute.

CA-00034780-001 – Payment of Wages Act 1991: For the reasons given above I find all parts of this complaint to be not well founded.

CA-00034780-002 – Organisation of Working Time Act (OWTA), 1997: For the reasons given above I find this complaint to be not well founded.

CA-00034780-003 – Protection of Employees (Fixed-Term Work) Act, 2003: For the reasons given above I find this complaint to be not well founded.

CA-00034780-004 – Industrial Relations Act 1969: for the reasons given above I find that I am not in a position to investigate this dispute.

Time limits