Complainant

Respondent

Parties

George  McGrath

Department of Foreign Affairs

Representatives

  Self-Represented

Mr. Desmond Ryan BL instructed by Ms. Karen MacNamara, Chief State Solicitor's Office

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-00041961-001

13/01/2021

The Complainant commenced employment with the Respondent on 3rd July 2017. Throughout his employment the Complainant was a permanent, full-time employee. The Complainant received a weekly payment of €684.17. The employment terminated on 27th June 2020.

On 13th January 2021, some six month and seventeen days following the termination of his contract, the Complainant lodged the present complaint with the Commission. Herein, he alleged that the Respondent failed to pay him his contractual notice payment on the termination of his contract, in contravention of the Act. In disputing the complaint, the Respondent submitted that the Complainant’s employment was terminated on foot of a specific purpose set out in the contract of employment, and that in such circumstances the Complainant is not entitled to statutory or contractual notice.

A hearing in relation to this matter was convened and finalised on 4th 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 Workplace Relations Commission as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. Both parties issued extensive submissions in advance and expanded upon the same in the course of the hearing. In circumstances whereby the parties were not in dispute as to the factual matrix of the complaint, neither called a witness to give evidence and the matter was dealt with on submission only. 

At the outset, the Respondent submitted that the complaint was statue barred for the purposes of the Act. This matter was dealt with prior to the substantive hearing.

In circumstances whereby the complaint was lodged in excess of six months from the date of the alleged deduction, the Complainant applied for an extension of the relevant period on the basis of “reasonable cause”. In grounding this application, the Complainant stated that he previously lodged a complaint under other legislation in relation to the non-payment of his statutory notice.  It was only following same that the Complainant was advised that he could recover the notice payment under the present legislation also. Further to the same, the Complainant stated that this complaint was contained within the narrative section of that earlier complaint.

By response, the Respondent advised that the Complainant had not established reasonable cause to allow the relevant period of the complaint to be extended.

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 established test for establishing such for reasonable cause is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. Here 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 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.”

In the present case, the Complainant has stated that he did not lodge the complaint within the initial six-month period as he was unaware of his rights in this regard. Notwithstanding the same, I note that the Complainant lodged an almost identical complaint within the time-period and that this complaint relates to the subject matter advanced by the Complainant. 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 foregoing, and that fact that is common case that no breaches of the Act occurred within the relevant period of six months prior to the referral of the complaint, I find that the complaint is not well founded.

I find that the complaint is not well founded and consequently the Complainant’s application fails.

Extension of Time, Reasonable Cause