Complainant

Respondent

Parties

Andrew  Norton

Robert Walters Limited

Representatives

Dawn Craig Robert Walters Group

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-00043216-001

22/03/2021

The Complainant was employed as a Senior Transaction Reporting Analyst by the Respondent, working for a client company.  The Complainant submitted a complaint under the Payment of Wages Act, alleging that he should have been remunerated for work done between 16th and 20th March 2020 and that he never received those wages.

The Respondent is and was at all material times a specialist recruitment consultancy, placing candidate in permanent and temporary roles within its’ client organisations.  The Respondent claimed that the complaint was out of time and the Adjudication Officer did not have jurisdiction to hear the case and, in any event, denied the claim.

Preliminary Issue

The Respondent submitted that the Complainant was out of time in submitting his complaint.  He submitted that Section 6(4) of the Payment of Wages Act 1991 sets out that a rights commissioner shall not entertain a complaint under this section unless it is presented within the period of 6 months beginning on the date of the contravention to which the complaint relates.  The Respondent further submitted that the complaint related to monies allegedly owed to the Complainant for work he claimed to have done between 16th and 20th March 2020, which would have been paid on Friday 27th March 2020.  Therefore, he submitted that the alleged breach occurred on 27th March 2020 when the Complainant was not paid. 

The Respondent submitted that, in the circumstances set out above, the Complainant would need to have brought a claim within 6 months of 27th March 2020 and that, as he had not done so, he was out of time to bring the claim and that a rights commissioner did not have jurisdiction to entertain the claim. The Respondent also submitted that the Complainant had not set out any exceptional circumstances which prevented the presentation of the complaint within the 6-month period.

In their submission, the Respondent acknowledged that the Complainant had brought to their attention that he had been informed by the Payroll Manager that he would be paid 3 weeks in arrears.  While this is denied by the Respondent, the Respondent further submitted that if this had been the case then payment from 16th to 20th March would have been due to be paid on 10th April 2020 and that in this scenario the Complainant is again out of time in submitting his complaint.

The Complainant had not directly addressed the matter of the time limit in his complaint, but he had submitted the following explanation of his complaint:

·        That he had started work on 16th March 2020

·        That, when he realised he hadn’t been paid as expected, he raised a query with the Respondents’ Payroll Manager

·        That he was advised that he had to work a number of back weeks and that he would be paid the following week which he was

·        That, as a result, he understood that he would be due two weeks back pay at the end of his contract

·        that his contract ended on 15.02.21 and that when he received his last payment, he noted that he had not been paid for the week 16th March to 20th March

At the hearing the Complainant advised that he believed that the date when the breach occurred was when the last payment should have been made and that, on this basis, he believed his claim to be in time.

The Complainant submitted that he was employed by the Respondent as a contractor working for a client, that his contract started on 16th March 2020 and ended on 15th February 2021. 

He submitted that days before he started working in March 2020 he was phoned by the Respondent and told that due to Covid, groups of people were working from home and that alternative groups would be attending the office (Block A and Block B). He submitted that for the first week he was in the working from home group and that during that time he started covering relevant subject points in relation to his new role and that he attended the office on 23rd March as part of the group attending that week.

In his submission he stated that when payroll ran, he realised that he hadn’t been paid as expected and that he raised this matter with the Payroll Officer.  He submitted that he was told he had to work a number of back weeks and that he would be paid the following week, which he was. He further submitted that this meant he would have two weeks of back pay once his contract was over, however, when he received his final payment, he noted that he had not been paid for the week he was working from home i.e. 16th March 2020 to 20th March 2020.

The Complainant submitted that he raised his concerns with the Respondent representative who signed his contract and she confirmed to him that he did not attend the office that week.  In turn he advised her that the reason he did not attend the office was because he had been told to work from home that week and he drew attention to the start date in his contract i.e. 16th March 2020. He submitted that the Respondent replied to him stating that “your assignment started on 23rd March 2020 due to a delay caused by the Covid pandemic.” The Complainant submitted that the Respondent drew attention to an email from a Manager with the Respondent which confirmed that the Complainant was aware of the revised start date of 23rd March 2020 and to the provisions of Clause 3.1 of the contract for service which provided that “the temporary worker acknowledges that the nature of temporary work means that there may be periods, even during the assignment, when no suitable work is available or the client does not require any services to be provided and agrees: (a) that the suitability of the work to be offered shall be determined solely by the employment business; (b) that the employment business shall incur no liability to the temporary worker should it fail to offer opportunities to work or an assignment; and (c0 that o contract shall exist between the temporary worker and the employment business during periods when the temporary worker is not working on any assignment.”  The Complainant submitted that the Respondent was incorrect in this position.

The Complainant submitted that he never received such an email, that it was never explained to him that his start date had moved nor was his contract amended. The Complainant drew attention to page 13 of the contract under PAYE Assignment Schedule where it stated, “if there are any inconsistencies between the details of this assignment and the rest of the agreement, this assignment schedule takes precedent.”

Based on all the foregoing circumstances the Complainant submitted that he was due to be paid for the period from 16th March 2020 to 20th March 2020.

The Respondent submitted that the Principal Consultant with the respondent emailed the Complainant on 3rd March in relation to the proposed assignment as Senior Transaction Reporting Analyst and that the Complainant replied confirming his interest and was subsequently interviewed for that position on 4th March 2020.  Later that day the Client emailed the Principal Consultant to confirm that they hoped for a start date of 16th March and he, in turn, emailed the Complainant to confirm the job offer and provisional start date.  The Respondent further submitted that on 11th March the Principal Consultant emailed the Complainant to ask if the Complainant was ok to start on 16th March 2020 and the Complainant responded to confirm the arrangement.

In their submission the Respondent outlined that on 12th March the Client emailed the Respondent to suggest a delay in the start date until 18th March due to internal issues approving the assignment and again the Respondent emailed the Complainant to ask if he would be ok with changing the start date to 18th March.  In that email he also asked, “You are still ok with signing the contract with the 16th dated on it”, to which the Complainant responded, “No problem with starting on 18th and no problem to sign the contract with the start date of the 16th.” The Respondent confirmed that on that basis the contract was signed on 12th March 2020 and that the contract stated a start date of 16th March 2020.

In their submission the Respondent drew attention to Clause 3.1 of the contract in relation to periods when no work would be available and in relation to Clause 4.3 which set out that “subject to any statutory entitlement under relevant legislation and without prejudice to any entitlement to paid annual leave in accordance with clause 5, “the temporary worker is not entitled to receive payment from the Employment Business or Client for time not spent on assignment, whether in respect of holidays, illness or absence for any other reason (including where there has been no suitable work to provide), unless otherwise agreed.” The Respondent also drew attention to clause 4.5 which stated that “unless otherwise indicated in the agreement schedule, payment of the temporary worker’s remuneration will normally be made by direct credit to the temporary worker’s bank account on the Friday of the week of receipt of submitted timesheet, or on the Friday of the week of receipt of timesheet provided it is received prior to 5 pm on the Monday of that week.” Finally, the Respondent drew attention to clause 7.2 of the contract which stated that “the employment business shall make no payment to the temporary worker for hours not worked or properly authorised by the client.”

The Respondent submitted that on Friday 13th March the client emailed the Respondent to explain arrangements relating to social distancing in the office which would affect the Complainant’s start date and asked the Respondent to explain this to the Complainant and ask if he was ok to start on 23rd March 2020.  The Respondent emailed the Complainant on the same day and advised that “HR just emailed to say with everything going on with coronavirus would it be possible for you to start on 23rd as the Dublin office is working from home?”, to which the Complainant responded “I was expecting something like this to come up…Obviously under the circumstances I have no problem with this.”

The Respondent also drew attention to an email sent by the Complainant after a phone conversation on 19th March saying “Do let WF know that I understand the situation and I am happy to wait for things to start up again. Just disappointed not to be getting going, but nothing anyone can do about that.” The Respondent submitted that on foot of further update from the client later the same day an email was sent to the Complainant confirming “you’ll be starting on Monday”.

The Respondent further submitted that on 20th March the client provided specific details of the assignment and that these were emailed to the Complainant on the same day with confirmation that the assignment would be starting on Monday 23rd March and details of attendance arrangements.

In their submission the Respondent outlined that between 24th and 25th March emails were exchanged between the Complainant and the Payroll Manager clarifying payroll arrangements and specifically how arrangements would apply while working from home.  It was the Respondent’s position that, in line with the clarification provided by the Payroll Manager, the procedures outlined were followed throughout the Complainant’s employment.  The Respondent submitted that the Complainant’s employment terminated on 15th February 2021and that on 26th February 2021 he emailed the Payroll Manager to say that he was expecting an additional 5 days’ pay in his final payment.  In that email the Complainant claimed that the Payroll Manager had advised him that his first pay would be 3 weeks in arrears.  The Respondent confirmed that the Payroll Manager had responded, clarifying the position and stating that he had not received any timesheets in relation to the period now in question i.e. 16th to 20th March 2020, to which the Complainant replied that the Payroll Manager should contact the client.  The Respondent submitted that the Payroll Manager did contact the client on 1st March 2020 and that the client responded that the Complainant’s start date was 23rd March 2020.

In summary the Respondent concluded that

·        The Rights Commissioner did not have jurisdiction to hear the case because it was submitted out of time

·        Even taking into account payment on a back-week basis the payment dates would have been either 27th March or 10th April and that in both circumstances the complaint was still out of time.

·        It was denied that the respondent failed to pay the amount due as the Complainant did not commence work until 23rd March 2020 and therefore no wages were due for that period

·        Alternatively, the contract provides that where no suitable work is available the Complainant is not entitled to receive payment for such periods.

·        There was no evidence from the client that any work was carried out during the period in question 

The Respondent appended copies of all emails referred to above to support their position.

Section 41 (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 41(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 reasonable cause is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 where 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 Sy 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 must satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In the present case the Complainant stated that he did not lodge the complaint within the initial 6-month period as he was unaware that he would not be paid.  He indicated that he was advised that he would have to work 3 back weeks and so he believed that he would be paid for the period in question at the end of his contract and he contended that he did lodge his claim within 6-months of that timeframe, when he came to realise that he would not be paid for the period.

I note also Clause 4.5 of the Complainant’s contract which made clear that payments to the Complainant would “normally be made by direct credit to the Temporary Workers’ bank account on the Friday of the first week following the week of receipt of properly submitted timesheet” and it is clear to me that this contractual provision denotes an arrangement equivalent to a weeks’ back pay.  In these circumstances I consider the 27th March as the date upon which any payments due to the Complainant would have been due to be paid and therefore any claim for non-payment under the Act should have been made within 6 months of that date.

I do not accept the Complainant’s position that he expected to be paid for the week of 16th to 20th March 2020 at the end of his contract.  His contract is very clear that one back week was the system in operation for pay purposes, therefore the week ending 20th March would be paid on 27th March and his last week in employment is the week that fell due to be paid one week after the termination of his employment. In such circumstances I find that the Complainant has not demonstrated “reasonable cause” which would allow the relevant period to be extended.

Having regard to the foregoing, and the fact that it is common case that no breaches of the Act occurred within the relevant period of 6 months prior to the referral of the complaint, I find that the complaint is out of time and that, in accordance with Section 41(6) of the Act I do not have jurisdiction to hear the case.

I have found that that the complaint is out of time and that, in accordance with Section 41(6) of the Act I do not have jurisdiction to hear the case.  It is, therefore, my decision that this case is not well founded.

Payment of wages, time limit