Complainant

Respondent

Anonymised Parties

A Carpenter

A Construction Company

Representatives

Sharon Young

Aoife Kelly GARRETT J. FORTUNE & CO. SOLICITORS

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-00038941-002

29/07/2020

The claimant submitted the respondent was in breach of the Act for failing to pay him outstanding wages in the amount of €8167 and outstanding expenses for diesel of €1,500.

The claimant was employed as a carpenter with the respondent from August 2017 to the 24th.January 2020.He stated he was initially paid in cash up to December 2017  and after an accountant was appointed his wages were paid through his bank account.The claimant  submitted the  wages were frequently late and asserted  that during his entire employment he only received 14 wage slips. In a post hearing submission he estimated that the aggregate shortfall in wages amounted €11,814.00 .The claimant submitted that he raised the matter of outstanding wages with the respondent on numerous occasions but it was to no avail.The claimant submitted that he as also owed €1,500 in outstanding expenses for diesel. The claimant submitted the arrangement with the respondent was that he would receive an official weekly payment of €693.00 and an additional €200.00 in cash as he was able to work independently and deal with on site queries as an acting foreman..The claimant denied that he had any tools or a generator   belonging to the respondent in his possession.

It was submitted that the claimant was initially  unable to formalise his complaint to the WRC as he was so stressed over the dispute with the respondent and it was in March 2020 before his representative could raise the matter with him. Lockdown ensued , the phone shops were closed and both the claimant and his representative had difficulties with their respective phones.The claimant contacted the WRC in March – the claimant’s representative stated that she was unable to complete the form on her lap top and received a manual form with guidance notes from the WRC.She acknowledged the WRC indicated they were having difficulty in contacting her – she secured a new phone in June 2020 and discovered in July that the complaint was made to the Inspectorate of the WRC. She withdrew the complaint and submitted the current complaint which was received on the 29th.July 2020.The representative asserted that she was assured by the WRC that she had started proceedings within the time frame .

The respondent’s representative stated that he had challenges with the non filing of returns by his accountant and did not have documentation to hand to respond to the claimant’s complaints.She stated that she did not have a copy of the complaint form .It was submitted that in any event the complaint was out of time as it had not been received by the WRC until the end of July 2020 , 7 months after he left his job. It was submitted that when the claimant left his job he had €4,000 worth of property in his possession which belonged to the respondent. When the respondent didn’t hear from the claimant , he did not seek the return of the machinery. It was submitted that the claimant made no effort to try to speak to the respondent about outstanding payments. It was submitted that the respondent paid wages on a stage payment basis – before he could pay staff , he had to await a stage payment.The respondent stated that the payments were made by him or his father and set out a chronology of the payments made to the claimant up to January 2020. The respondent said he paid the claimant €3,000 on the 4th.January and he calculated that a figure of €2,722 was outstanding. The respondent stated  that he wasn’t suggesting the claimant stole the tools and he “assumed he was happy enough to keep the tools”.It was submitted that the retained machinery was worth over €4,000 – “ a  Dewalt Nail gun ; 3 Paslode Nail guns , 2 roof ladders and one petrol generator which would far exceed any alleged wages that may have been due or owing”.

It was submitted that the complaint was out of time and the following submissions were made in that respect –

The claimant had acknowledged receipt of a manual complaint form and guidance notes which were furnished following his initial contact with the WRC in early March 2020.It was submitted that it was a matter for the  claimant and his representative  to  ensure they were contactable thereafter and able to respond to telephone and email contact from the WRC. It was advanced that by his own admission the claimant had in his possession the necessary manual complaint forms since March 2020 to lodge a complaint within the cognisable period. It was further submitted that according to the claimant the alleged contraventions in January 2018 which was well outside the 6 months time frame. The respondent invoked the provisions of Cementation Skanska Ltd and Tom Carroll DTW 0388 – 28th.Oct.2003 in support of his contention that the reasons tendered by the claimant – the broken devices , the inability to download forms and the mistaken application for an investigation did not constitute reasonable cause for the delay in making the complaint.The respondent’s representative invoked the provisions of QFF Distribution Ltd. V Keith O’Reilly PDD171 in support of their contention that the claimant’s references to anxiety and ongoing stress  were not a justifiable excuse.It was further argued that the claimant submitted no evidence to support his allegation of stress while at the same time he was medically fit to take up employment within one week of leaving his employment with the respondent.The provisoions of PWD 2020 Hydraulic Hose Services Ltd. T/A and Christian Balsa were invoked in support of same.It was further submitted that in PWD 2020 Ervia v Deaglan Healy where a claimant had  similarly lodged a complaint to the Inspectorate Service of the WRC , the Labour Court took the view that the complaint was out of time and found that ignorance of one’s rights and responsibilities does not provide a justifiable excuse for a failure to bring a complaint in time or to the appropriate body.

Preliminary Matter of Time Limits

I have reviewed the  evidence presented at the hearing , the submissions of the parties and the authorities relied upon by the respondent. The complainant left the employment on the 24th.Jan. 2020 and his complaint  was received by the WRC on the 29th.July 2020. I cannot accept the excuses advanced for the delay in making the complaint , stress – unsupported by medical evidence , broken devices and confusion arising from making a complaint to the Inspectorate of the WRC meet the threshold for reasonable cause as set out by the Labour Court in DWT 0338 Cementation Skansa v Carroll .Additionally I am taking account of the acknowledgement by the claimant of receipt of a manual complaint form with guidance notes in March 2020.Furthermore , I am required to take  account of the authorities invoked by the respondent and in particular PWD2020 Ervia and Mr.Dealgan Healy where the Court held the view “ that it is a fundamental principle that ignorance of one’s legal rights and responsibilities does not provide a justifiable excuse for a failure to bring a claim in time or to the appropriate body , as held by the High Court in Minister for Finance v CPSU and Ors,[2007]18 ELR 36.Accordingly I must conclude that the complainant has not put forward a justifiable basis upon which an extension of time could be granted in this case.

The complaint is out of time and accordingly I have no jurisdiction to investigate this complaint.

Out of time