Complainant

Respondent

Parties

Kevin  O Mahony

Harry Walsh Associates

Representatives

none 

none 

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-00042379-001

09/02/2021

The Complainant was employed as a mechanical fitter by the Respondent, who is a sub-contractor at Whitegate Oil Refinery. He was posted to a backfill role in the maintenance department of the refinery. He resigned his position on 27 September 2019. The Complainant submits that he was not paid a bonus pro-rata sum of €4331 gross which was due to him on 12 May 2020. The Respondent denies that the Complainant was due such a sum and instead contends that claim is statute barred because it was submitted outside the six months’ time limit prescribed under the Act. Furthermore, and without prejudice, the Respondent submits the bonus was a discretionary bonus and the Complainant did not fulfil the criteria for such an entitlement.

Summary of Respondent’s Preliminary Issue:

The Respondent submits that the complaint was submitted to the Workplace Relations Commission (WRC) outside of the allowed time limit of six months. The Complainant resigned his position on 27 September 2019 and the claim was lodged at the WRC on 9 February 2021.   

The Complainant had already received discretionary bonus payments in respect of years 2016, 2017 and 2018. In each of those instances the relevant payment was always made in May of the following year.

The Respondent’s submits that the contention of the Complainant in his email of 9 March 21 to the WRC that “… I was not made aware of the payment from Harry Walsh Associates to other former employees until Sept 2020” is not plausible. The Respondent contends that + that the Complainant had actually received three previous payments each of which was made in May of the following relevant year, he either knew or reasonably ought to have been expected to know that the discretionary bonus payment for 2019 would have been made in May 2020. The Respondent submits that the Complainant simply forgot about the matter and this claim should be statute barred in the circumstances.

Summary of Complainant’s ’s submission:  Preliminary Issue:

The Complainant is seeking an extension of the time limit on the basis of reasonable cause. He submits that the Covid 19 outbreak seriously impacted on his capacity to seek information from work colleagues when inquiring on their entitlement to the bonus. He further submits that he the pandemic fundamentally curtailed his ability to receive advice on this complaint.

The Complainant further submits that he was not made aware of the fact that he was entitled to the bonus payment until September 2020, thus he had very little time to seek the advice and information between that and 12 November 2020, the six months expiry date from 12 May 2020.    

The Complainant submits that he enquired on his departure from the Respondent’s employment on 27 September 2019 about the bonus at issue and was told that it would be paid the following year, 2020. On 1 September 2020 the Complainant submits that he found out that the rest of the backfill employees had received their respective bonuses for 2019 in May 2020, though they had not completed their employment with the Respondent but instead moved to other employers. The Complainant submits that these employees received a pro-rata payment for the number of months they were employed by the Respondent. The Complainant asserts that when he brought this to the attention of the Respondent, the reply was that it was the Refinery owners who determined the payment and that he was not entitled to payment.

Philips 66 now Irving Oil Whitegate Refinery Ltd (“Irving Oil”) operated a discretionary annual bonus scheme for the Complainant who was employed directly by the Respondent as temporary sub-contractor. The discretionary bonus was always paid in May, in respect of the previous calendar year.

Each year the site leadership team at Irving Oil decided (a) the amount of the bonus and (b) the identities of the workers on site (direct employees and sub-contractors) who were to qualify.

The Respondent submits they never had any part whatsoever in setting or applying the relevant qualifying criteria. The scheme is voluntary and entirely administered by Irving Oil. When applicable, the Respondent contends they are merely told to whom the discretionary payment should be made and the amount thereof. The relevant amount is always paid from funds given to the Respondent by Irving Oil in each case.

The discretionary bonus was not an annual entitlement and while the Complainant received a discretionary bonus for 2016, 2017 and 2018, many of the other contract employees of the Respondent on site in the Refinery did not receive a discretionary bonus.

The Respondent submits that while the terms of the scheme are administered by Irving Oil, it is a strict condition that to qualify a relevant employee/sub-contractor must remain currently employed at the refinery at the time of payment i.e. in May of the following year. In this instance the Complainant had left his position on 27 September 2019 and so did not qualify for consideration at the relevant time i.e. May 2020.

The Respondent refutes the claim that an automatic entitlement to the bonus. For example, in May 2019 the Respondent had 18 sub-contract employees (including the Complainant) working at the refinery. Of these only 4 received a discretionary bonus for that year. It is the understanding of the Respondent. It is the understanding of the Respondent that each of the other 4 individuals were all working on site at the refinery in May 2020 and therefore qualified for consideration under the discretionary bonus scheme. The Respondent submits that had the Complainant been in situ working at the refinery in May2020 he would have received the bonus payment.

In conclusion the Respondent submits that Irving Oil operate a discretionary bonus scheme at the refinery. The bonus is discretionary, and many employees routinely do not benefit from it. It is a strict precondition of the scheme that in order to qualify for any given year, an employee must remain in continuing employment at the refinery in May of the following year. Having left his employment and the refinery site on 27 September 2019 the Complainant had thereby disqualified himself for consideration.

Findings and Conclusions:

Preliminary Issue: Time Limits.

Section 41(6) of the Workplace Relations Act 2015 provides for time limits when making a complaint under the Payment of Wages Act 1991.

(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.

(8) 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 applicable test in relation to establishing if reasonable cause has been shown for the purposes of granting an extension of time is that formulated by the Labour Court in the case of Cementation Skanska v Carroll, (DWT 38/2003) as follows; 

“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 Complainant cited the Covid 19 lockdown as a major impairment to his ability to submit a case within the six-month time limit. He contends that he was finding it difficult to contact ex-colleagues and also in seeking advice on the case. He also asserts that he had no knowledge of receiving the payment until 1 September 2020. He submits that the payment should have been made on 12 May 2020. The Respondent submits that the Complainant had full knowledge of the payment dates because he received previous payments on dates that were known to him.

I cannot accept the Covid 19 lockdown period could be considered a reasonable explanation for the delay in submitting the claim. The pandemic had a detrimental effect on a lot of economic activity but the transfer of information by telephone, online or post was not affected. I do not find as plausible the Complainant’s submission that the opportunity to contact people or seek, in both cases the transfer of information, was in anyway curtailed by the pandemic lockdown.

The timelines are also important. The Complainant submits that he initially discovered the fact of a non-payment of a bonus in September 2020 when it was purportedly due on 12 May 2020. He had not been in the employ of the Respondent since 27 September 2019 but submits, in written submission, that he was told by the Respondent then to expect the payment on the following May 2020, notwithstanding the fact that on 1 September 2020 he still had over two moths to submit the claim in time. Instead the claim was not submitted until 9 February 2021, nearly three months over the six-months limit.

In conclusion on the preliminary time limits issue, I cannot accept that the Complainant fulfilled the test of ‘reasonable cause’ as set done by the Labour Court in Cementation Skanska .  The reasons cited by the Complainant did not establish a causal link between the circumstances cited and the nearly three-month delay,as a matter of probability. I find that the Complainant did not submit the complaint within the time limit as set down by section 41 (6) of the Workplace Relations Act 2015 and I find therefore, I have no jurisdiction to hear this complaint.

CA-00042379-001: I find that the Complainant did not submit the complaint within the time limit as set down by section 41 (6) of the Workplace Relations Act 2015 and I find therefore, I have no jurisdiction to hear this complaint.

Payment of Wages Act 1991, Time Limits.