Complainant

Respondent

Parties

Jevgenij  Sidorov

Swords Packaging and Logistics Limited

Representatives

  Self-Represented

Ms. Sarah Faulkner,  Arthur Cox LLP

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-00035729-001

16/04/2020

The Complainant commenced employment with the Respondent on 18th August 2000. The Complainant is a full-time, permanent employee. The Complainant received a weekly payment of €449.00 for 39 hours of work.  His contract of employment describes his role as that of “general operative”.

On 16th April 2020, the Complainant referred the present complaint to the Commission. In a subsequent submission, he alleged that he was unfairly denied a pay increase. He further alleged that he was not paid during a period of sick leave and was not paid a premium for driving a forklift. In answering the claim, the Respondent submitted that the perceived unfairness in failing to increase a rate of pay is not actionable under the Act.  They further submitted that the Complainant had no contractual right to either payment claimed under the Act. Without prejudice to the foregoing, the Respondent submitted that I did not have jurisdiction to hear the complaints as the matter was statute barred.

A hearing in relation to the matter was convened and finalised for 15th May 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. Both parties issued written submissions in advance of the hearing.

At the outset of the hearing the parties’ attention was drawn to the judgment from the Supreme Court in the case of Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 and the key points were set out to the parties. The parties were informed of the procedural changes applicable to the hearing of all complaints post the judgment. The parties were invited to present their views in that regard. The parties had no comments or observations. No serious and direct conflict of evidence emerged in the course of the hearing and consequently there was no requirement to adjourn the hearing to await the amendment of the Workplace Relations Act, 2015 and related enactments to grant Adjudication Officers the power to administer an oath or affirmation.

At the outset of the hearing, the Respondent submitted that I did not have jurisdiction to hear the complaint. In particular, they submitted that as the complaint related to the non-payment of certain allowances and salary increases since 2011, the matter was referred outside the statutory time limit and was in effect statute barred. In support of this application, the Respondent opened the High Court cases of HSE -v- John McDermott. They submitted that the matter relating to the non-payment of the forklift allowance was presented outside the of one year from the date of the contravention to which the complaint related, any application by the Complainant to extend the relevant time for the referral of such a complaint is irrelevant.

By response, the Complainant re-stated the facts of the substantive matter. He stated that he was a lay litigant and that he was anxious to have the matter finalised.

Section 6(6) of the Workplace Relations Act 2015 provides that,

“…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.”

Section 6(8) provides that,

“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 established test for establishing such for reasonable cause is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. Here the test was set out 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 matter of the timely referral of complaint under the Payment of Wages Act in particular was considered by the High Court in the matter of Health Service Executive v McDermott [2014] IEHC 331. Here, Hogan J. stated that,

“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.”

In relation to the present case the Complaint presented a number of complaints, the framing a which will have to be considered individually.

The first complaint related to the failure to increase his wages. In his submission, the Complainant frames this as relating to the period June 2019 to the date of the lodgement of the complaint. In circumstances whereby the complaint was referred on 16th April 2020, I find that that this complaint was not refereed within the required six month period.

The second complaint relates to the non-payment of sick pay. In the Complainant’s submission, this alleged breach was framed as commencing on 17th September 2019 to 1st November 2002. Again, having regard to the date of referral of the complaint form, I again find that this complaint was not refereed within the required six-month period.

The final complaint related to the non-payment of a forklift allowance. In the Complainant’s submission, this is framed as commencing in 2011 to the date of the hearing. Given that this complaint is framed as commencing ten year previously, I find that it was not referred with in the relevant time period.

Regarding the first two complaints, these may be deemed to be in time should the Complainant establish “reasonable cause” to allow the consignable period of the Act to be increased. However, when asked, the Complainant offered no rationale for the later referral of the claims. In the circumstances, I find that all three complaints are referred outside the time period specified in the Act and consequently I decline jurisdiction to hear the complaint.

I find that I do not have jurisdiction to the hear the complaint.

Payment of Wages, Time Limit, McDermott