Complainant

Respondent

Parties

Aoife  O'Leary

Oasis Fashions Ireland Limited (In Liquidation)

Representatives

  James O’Leary

Cian O’Sullivan, Deloitte

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-00042973-001

09/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the  European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012

CA-00042973-002

09/03/2021

The Complainant was a part time employee with the Respondent from 1 November 2018 until the Respondent went into liquidation on 15 April 2020. The Complainant earned €186.67 per week. She brought two claims against the Respondent who was in Liquidation.

The Complainant submitted her claim on 9 March 2021. The reference period stated by the Complainant was for her entire term of employment from 1 November 2018 to 14 April 2020.

The parties agreed from the outset that there was no dispute as to the facts of this case and therefore, sworn evidence was not required.

 This matter was heard 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.

CA-00042973-001

The Complainant stated in the body of the Complaint Form that she did not take any annual leave during the period of her entire employment with the Respondent. The reason for this is she was a student working part time and had an agreement with her Manager that she would take it in the summer of 2020. However, in May 2020 the Liquidator was appointed and it is the Complainant’s case that she did not receive the holiday pay she was entitled to from the Respondent. She stated that she had engaged with the Liquidator on several occasions and while they were helpful, they were unable to access the company records to validate her claim. The Complainant presented payslips for her entire period of employment with the Respondent. The total holiday pay the Complainant claims was due to her amounted to €1131.22. The Liquidators assisted the Complainant in a submission to the Department of Social Protection which resulted in repayment of €337.29.   The remainder of the monies sought amounted to €793.93.

Jurisdiction - Time

When asked about the issue of time where the date of termination was 15 April 2020 and the date the claim was submitted was 9 March 2021, the Complainant explained that she had been in correspondence with the Liquidator for several months and due to change in the contact person she was dealing with, responses were slow.  

CA-00042973-002

At the hearing the Complainant withdrew this complaint.

CA-00042973-001

Mr O’Sullivan appeared on behalf of the Joint Liquidators of the Respondent. It is submitted on behalf of the Liquidators that the complaint was against the Respondent Company and their statutory duty was to the creditors.

CA-00042973-002

The Complainant withdrew this claim at the hearing.

Amendment to Complaint Form

Prior to the hearing I carefully read the Complainant’s Complaint Form and it was clear the narrative in the body of the complaint did not match the legislation under which her complaints related to. This was flagged to the parties at the hearing. The Complainant advised she was not legally represented and while she did have the assistance of her father, an Accountant, she had no experience of employment law.

The Complainant sought to amend her Complaint Form to withdraw the Payment of Wages Act 1991 claim and substitute complainants pursuant to the Organisation of Working Time Act 1997 namely:-

·       I did not receive my paid holiday / annual leave entitlement [Section 23]

·       I was not compensated for the loss of my annual leave entitlement on leaving [Section 27]

The Respondent did not dispute this amendment.

I decided the Respondent was in no way prejudiced by the amendment and granted it accordingly.

Jurisdiction – Time

Section 41 of the Workplace Relations Act 2015 limits an Adjudication Officer’s jurisdiction to a period of 6 month beginning on the date of contravention:-

41. (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

Section 41(6) of the Act states:-

(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.

Section 41(8) of the Act states:-

(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.

In the leading Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carrollthe test for extending time 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 Labour Court, in DeterminationEDA166 Tesco Ireland Ltd v David O’Connor, went on to state that :

“that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should be enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30.  Costello J. stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

More recently the Labour Court Determination PWD 1820,The Grove After School Care (Management Company ) Ltd v Michele O’Sullivan summaries the position:-

“It clear from the authorities that the test places the onus on the applicant seeking an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The Complaint Form was submitted to the WRC on 9 March 2021.

It is the Complainant’s case that she never took an annual leave day since the commencement of her employment with the Respondent on 1 November 2018 up to including the date of termination.

The date the Complainant’s employment was terminated was 14 April 2020.

From the date of termination to the date of complaint is a period of almost 11 months.

The period of contravention is the 6 months prior to 9 March 2021 which is 8 September 2020.

The reason for the delay put forward by the Complainant was due to the delayed progressing the claim with the Liquidators while at the same time being complimentary as to the assistance received from the Liquidators. However, the onus is on the Complainant herself to set out a justifiable excuse for the delay in progress her claim within the statutory time limits. In terms of the causal connect between the delay and the Liquidators’ response time it cannot be objectively said to satisfy on the balance of probability that the Complainant would have otherwise presented her complaint within the statutory time limit.  It appears from the facts of this case that the Liquidator did assist the Complainant in progressing her queries in access funds from the Department of Social Protection however, the Liquidators are not responsible for providing advice to individual creditors as to the cause of actions available to them outside of the Liquidation process. Another factor in this case to be considered is the length of time of the delay, it is almost 11 months after the Complainant’s date of termination. Objectively, a delay of 5 months after the statutory 6-month time limit requires a clear justifiable excuse. Unfortunately, in this case no such justifiable excuse has been presented.  On the balance of probabilities, I find that there is no reasonable cause for the extension of time. Consequently, I have no option but to decline jurisdiction to decide on this case.

CA-00042973-001

The claim is outside the statutory time limit provided for in s. 41 (6) of the Workplace Relations Act 2015

CA-00042973-002

The Complaint withdrew this claim at the hearing.

CA-00042973-001

The claim is outside the statutory time limit provided for in s. 41 (6) of the Workplace Relations Act 2015 and therefore decline jurisdiction to decide on this claim. 

CA-00042973-002

As this claim was withdrawn at the hearing, it is not well founded.

Organisation of Working Time Act – Time Limit- Public Holidays – Withdrawn Claim – Decline Jurisdiction