Complainant

Respondent

Parties

Damian  Connell

Xerox Europe Ltd

Representatives

  Self-Represented

Mr. Ger Connolly, Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00043998-001

11/05/2021

The Complainant commenced employment with the Respondent on 9th October 2020. He is a full-time, permanent employee of the Respondent. At all times his role was described as “technician”.

On 11th May 2021 the Complainant lodged the present complaint with the Commission. Herein, he alleged that the Respondent had implement the national “Wage Subsidy Scheme” in such a manner as to cause an illegal deduction from his wages. In answering the complaint, the Respondent submitted that they had implemented the scheme in accordance with the relevant Revenue guidelines, and that the Complainant was not at any actual loss. They further submitted that the alleged deduction was not an illegal deduction for the purposes of the Act as it was authorised by virtue of statute.

A hearing in relation to this matter was convened and finalised on 12th August 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 in the course of the hearing. Both parties issued extensive written submissions in advance, and expanded upon the same in the course of the hearing.

At the outset of the hearing, the Adjudicator raised an issue as to the issue of time-limits and invited post hearing submissions on this point. This issue will be considered in advance of the substantive matter.

The complaint, as presented, related to a deduction of wages which arising from the operation of the national Wage Subsidy Scheme (hereafter referred to as “TWSS”). This scheme formed part of the national response to the effect the restrictions arising from the Covid-19 pandemic had upon businesses and their employees. Under the terms of the scheme, if an employer met certain prescribed criteria, some of their employees’ net wages would be subsidised by the state for a period of time. In the Complainant’s case, this subsidy was applied for the months of April, May, June and July of 2020.

During these months, the Complainant’s net wages were not reduced, and he assumed that he would not suffer any detriment as a result of the operation of the scheme. However, in January 2020, the Complainant received a tax bill for the sum of €1,792.31. On further investigation, the Complainant discovered that he did not receive his full gross pay for the year. On calculating his annual wages, he discovered that during the period of the operation of the TWSS, the Respondent did not pay him the full gross salary, even when the TWSS amount was factored into the calculation.

In circumstances where the alleged deduction related to the period of April – June 2020, and the complaint was lodged on 11th May 2021, it was put to the Complainant that the matter could be construed as being out of time for the purposes of the present Act. In circumstances whereby the Complainant is a lay litigant, he was invited to issue a submission in respect of this particular point post hearing.

By submission, the Complainant stated that the deduction related to the entirety of the year 2020, and not just to the months during which the TWSS was in place. He stated that he was not aware of the deduction until Revenue released the annual balancing statement in January 2021. The Complainant further submitted that the delay thereafter arose due to his attempts to have the matter dealt with locally and with Revenue. He stated that he received a final answer in relation to these matters in April 2021 and lodged the present complaint shortly thereafter. Having regard to the foregoing, the Complainant submitted that the complaint was lodged within six months of the knowledge of the deduction. Without prejudice to the foregoign, the Complainant submitted that he had demonstrated “reasonable cause” to allow the relevant time limit to be extended.

The Respondent submitted that the alleged contravention occurred between April and August 2020. Having regard to the same, the last day on which the complaint could be submitted which would render any of the present complaint in time was 28th February 2021. This complaint was lodged on 11th May 2021, some 13 months following the first alleged breach and 9 months following the final breach.

The Respondent submitted that the Complainant became aware of the breach in January 2021 and could, therefore, have lodged the complaint within six months of the final contravention. Finally, the Respondent submitted that engaging with internal procedures do not constitute “reasonable cause” in these circumstances and opened the matter of Brother of Charity Services Galway -v- Keiran O’Toole EDA177 in support of this position.

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 present complaint relates to an alleged underpayment by the Respondent, following the implementation of the Wage Subsidy Scheme. It is common case that this scheme was in place during the months of April, May, June, July and August 2020, after which the Complainant’s wages were paid in the normal manner. As the present complaint was received on 11th May 2021, it is apparent that the alleged deductions took place in excess of six months prior to the referral of the complaint.

This first issue to be considered in relation to this point, is the Complainant’s submission that the deduction related to the entire year of wages i.e. that he was not paid the entirety of his annual salary for the year 2020. In the matter of Health Service Executive -v- McDermott 2014 [IEHC} 331, Hogan J. stated that,

“…the words “contravention to which the complaint relates” which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a “contravention” of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate “contraventions” of the 1991 Act during that period.”

Having regard to the foregoing, it is clear that the alleged contraventions to which this complaint relates occurred when the Complainant received his monthly salary for the months April to August 2020, and that the time-period should run from these dates.

During the hearing, it was further accepted by the parties that the Respondent did not operate a “month in hand” system of payment, and that the Complainant received the wages for the month at the end of that month. Having regard to the same, the first contravention to which this complaint relates occurred at the end of April 2020, the first month during which the TWSS was in place. As the present complaint was lodged on 11th May 2021, it is apparent that at least some of the subject matter of this complaint occurred in excess of one year from the date of the referral. Consequently, this portion of the complaint will be out of time for the purposes of the present Act, even if the extension set out in Section 6(8) is applied.

In McDermott, 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.

It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.”

In the matter of Elsatrans Limited -v- Joseph Tom Murray, PWD 1917, the Labour Court found that when part of a complaint in relation to the non-payment of wages is referred outside of the relevant time-limits, this serves to render the entirety of the complaint out of time.

In the present case, the Complainant references an alleged deduction that occurred from the implementation of the TWSS in April 2020. In circumstances whereby this scheme was in place from April to August 2020, it is apparent that the complaint has been “framed” in these terms. Following from the example cited by Hogan J. cited above, a complaint that is framed in such a manner whereby the commencement of the specific complaint (as opposed to the breach) falls outside the relevant period, the entire matter will be deemed to be out of time. In circumstances whereby the complaint is framed as commencing in April 2020, in excess of one year from the referral of the complaint in May 2021, I find that the complaint as presented is out of time.

As no breach occurred within the time period set out in the Act, I find that the complaint is not well-founded.

CA-00043998

I find that the complaint as presented is out of time. As no breach occurred within the time period set out in the Act, I find that the complaint is not well-founded.

Time-Limits, Payment of Wages, Framing of Complaint