Complainant

Respondent

Parties

Brendan  Toland

Spirit Construction Personnel Ltd

Representatives

  Appeared In Person

 No Appearance by or on behalf of the Respondent

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-00041837-001

06/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00041837-002

06/01/2020

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

In the absence of the Respondent at hearing, I asked the Complainant if he had considered any implications of Zalewski v Adjudication Officer [2021] IESC 24 for his case?  He confirmed that he was prepared to progress with the case.

The Complainant was the sole participant at hearing. The Respondent wrote to the WRC prior to hearing on March 10, 2021 and highlighted their dissatisfaction that the case would proceed against expired statutory time limits.  

On 6 January 2021, the Complainant had submitted two complaints to the WRC 

1.      The Complainant had worked 13 weeks and was owed €78 in overtime payments per week totalling 12 weeks at €78 per week

2.      He was owed accommodation subsistence of €181.66 per week, totalling €2364

He exhibited copies of pay slips as collateral.

The Respondent was notified that their attendance at hearing was required.

The Complainant, a Lay Litigant, worked as an Excavator Operator on a Road Widening Project between 17 June 2019 and 13 September 2019. He worked in a Subcontracting setting.

He lodged two claims on 6 January 2021.

On February 2, 2021, the WRC wrote to the Complainant and indicated that it appeared the claims were submitted outside of the 12-month statutory timeline. The Complainant was invited to make a submission if he intended to seek an extension of time in accordance with Reasonable cause argument i.e., within the 12-month timeline.

On February 3, 2021, the Complainant sought that time be extended in foot of a nine-point submission.

On August 9, 2021, the Complainant sought some flexibility at WRC to facilitate his attendance at remote hearing from his work.

I wrote to the complainant in advance of the hearing seeking details on his contract of employment. I was informed that he had not received this document.

Submission on seeking an extension of time in accordance with Section 41(8) of the Workplace Relations Act, 2015, Preliminary Issue.

The Complainant submitted that he had not delayed in submitting his complaint, which he had submitted at his earliest opportunity. He expanded on his earlier submission of 3, February 2021.

He submitted that he had made a multitude of attempts to secure payments during his employment and after he left. The Respondent had disregarded his attempts at first and then agreed to address the claims for shortfalls in overtime pay and accommodation outlay. He was informed that “the office will sort it out “. This did not materialise. He became very demoralised about this treatment and let the matter sit until encouraged to re-activate the claims.

He submitted that he had first attempted to complete the WRC online complaint form in August 2020. He was unable to complete the task due to the lack of software in his computer. He contacted the WRC at this time, seeking alternative carriage for the complaint. He was informed that he would receive a copy of a complaint form by post. This did not follow. Instead, he received an email with a copy of the complaint form attached.

The Complainant returned to the WRC and stated that he “didn’t at the time have the computer /software /printer to complete the complaint form.

He was informed that he would receive a copy by post, but it did not arrive.

He purchased Adobe reader in December 2020 and submitted the complaint form on 28 December 2020, received on January 6, 2021.

The Complainant sought an extension of time to allow his complaints to be heard.

CA-00041837-001 Payment of Wages Claim

The Complainant submitted that he had worked on average 55 hours per week during the 13 weeks of employment.

The Respondent paid overtime on 47.5 hrs rather than 39 hours. He received payment at €18.36 per hour rather than €27.54 provided for in the Sectoral Employment Order (SEO).

He sought payment of 12 weeks at €78 per week.

At hearing, the complainant confirmed that he was paid overtime for Saturday work. He was confirmed as a Category 2 worker for the purposes of the SEO.

He outlined that overtime governing weeks 26 to 38 (ex- week 33) were incorrectly paid and he had been significantly underpaid for that period.

CA-00041837-002 Sectoral Employment Order

The Complainant submitted that his accommodation costs were part of the SEO, and he was entitled to €181.66 per week in subsistence.

He confirmed that he had received travel time but had not been asked to furnish receipts for his accommodation. He had received €42 per day.

He had sought to recoup this from the Respondent, without success. He became stressed by his exclusion from resolution.

The Complainant considered the Respondent response and disagreed with the contents. He argued that he was owed outstanding wages and subsistence. He confirmed that he had no idea if others had been paid similarly as they did not discuss each other’s earnings on site.

The Complainant sought both outstanding payments.

On March 10, 2021, a Company Director at Respondent Business filed a written response to the claims.

The claims were disputed. The Respondent also submitted that time regarding a case before the WRC could be extended by the Workplace Relations Act, 2015 to 12 months and not the 15 months as claimed by the complainant in the case.

He also submitted that the Construction Sectoral Employment Order referred to by the Complainant came into force in October 2019 post his employment at the Respondent business.

The Respondent Representative concluded that:

We do not believe there is any case to answer to or be investigated here whatsoever and this frivolous claim is rejected entirely by us and should be by the WRC also.

Unfortunately, we didn’t hear anything from my reply in this case and thought it was resolved as we do not see any case to be heard. We did not hear back to our previous replies to close out the matter providing evidence. We will not be available tomorrow as we do not understand what this hearing is for as we do not see any breaches. If there is a possible breach of anything to which we do not agree there is can you, please let us know do we can investigate this further on our end. 

CA-00041837-001 Payment of Wages Claim

The claim was denied by the Respondent by way of written response to the claim.

There was no appearance by or on behalf of the Respondent at hearing.

CA-00041837-002 Sectoral Employment Order

The claim was denied by the Respondent by way of written response to the claim.

There was no appearance by or on behalf of the Respondent at hearing.

I have been asked to make a decision on both complaints in this case. In reaching my decision, the matters are subject to a Statutory time limit of 6 months or 12 months by extension by Reasonable cause.

I explained to the Complainant, that I would address the Preliminary Issue and follow on with the substantive case.

I explained that if I found for the Complainant, on the Preliminary Issue, my decision would reflect both findings on preliminary and substantive issue. I also explained that if I found against him, my decision would conclude on the findings related to the Preliminary issue.

Section 41 (6) and (8) of the Workplace Relations Act, 2015 set down the statutory time limits attached to claims   in employment law.

Preliminary Issue on Time Limits

6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to   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) 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.

This provides for an extension of time, provided that the test of Reasonable cause being met.

I fully accept that the Complainant is highly aggrieved by the approach adopted by the Respondent in this case. He has contended that he was a significantly underpaid on overtime and subsistence during a 13-week employment tenure.

His efforts at resolution were conducted orally and were without success. This has resulted in a protracted delay until the matter arrived at the WRC on 6 January 2021.

I would like to state at the outset that the Respondent has not demonstrated respect for a Statutory Tribunal charged with inquiry of workplace claims. It is not for an employer to approach an employment tribunal and represent as a Judge in their own cause. The Complainant has a right to make complaints arising from his employment and the employer ought to have made an appearance to address these issues. I say this as I cannot establish any footprint of consideration of these issues as set down in the Individual Dispute section of SI 455/2017, Sectoral Employment Order (Construction Sector) 2017.

(a)   The grievance or dispute shall in the first instance be raised with the employer at local level with a requirement to respond within 5 working days. Notice in writing of the Dispute shall be given by the individual concerned or his trade union to the relevant organisation representing employers or to the employer directly

If the dispute is not resolved it shall be referred to the Adjudication service if the WRC.

Prior to hearing, the Respondent was informed that their attendance at hearing was required, yet this was ignored.

I must decide on whether the claims as presented fall into the extension by reasonable cause clause of Section 41(8) of the Act.

The employment in this case commenced on 17 June 2019 and ran until 13 September 2019. Pay Slips exist to accompany this   journey.

The Complainant lodged his complaint on 6 January 2021 on a complaint form dated 28 December 2020.

This is almost 16 months following the conclusion of employment.

The test for reasonable cause is outlined in the Labour Court case of Cementation Skanska v Carroll, WTC 0338

When they held:

It is the Courts 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 that 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 complainant at the material time. The claimant’s failure to present the claim within 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.

I have given careful consideration to the complainants stated reasons associated with the delay in filing his complaint to the WRC.

I note that the last record of engagement with the respondent occurred in October 2020. The Complainants confirmed that he had become despondent and had let the matter sit then until prompted to try and resolve the issue through the States Disputes Resolution service. I have found the depth of this delay to be profound.

He commenced his first contact with WRC in August 2020, some 11 months following the conclusion of his employment. I appreciate that he experienced some difficulties with carriage of his complaint. However, I must find that the responsibility for carriage of the complaint lies firmly with the complainant, and I cannot accept that reason as an objective reason for delay.

I did not receive any medical reports to support the reason for delay.

While, I have stated my unease in how the Respondent has conducted their responses to the claim, I cannot accept this as a deterrent through the complainants’ eyes, given that the Respondent initial contact with the WRC was February 2021. I wish to repeat that the SEO contained a veritable local disputes resolution mechanism which went uninitiated apart from an oral exchange. I would emphasise the requirement to maintain records in any employment dispute.

In all the circumstances, I regret to say that I must find that the claims are both manifestly out of time and I am unable to exercise my discretion to grant an extension under Section 41(8) on Reasonable cause.

 Application of Section 41(8) at its height would not bring these claims within the statutory time limit of 6 or 12 months beginning on the date of the contravention to which the complaints relate. However, I found it important to listen carefully to and consider the complainants case as he demonstrated a high sense of injustice which warranted inquiry.

CA-00041837-001 Payment of Wages Claim

I find that the claim is statute barred and I am unable to grant an extension on reasonable cause.

The claim is not well founded.

CA-00041837-002 Sectoral Employment Order

I find that the claim is statute barred and I am unable to grant an extension on reasonable cause.

The claim is not well founded.

CA-00041837-001 Payment of Wages Claim

I find that the claim is statute barred and I am unable to grant an extension on reasonable cause.

The claim is not well founded.

CA-00041837-002 Sectoral Employment Order

I find that the claim is statute barred and I am unable to grant an extension on reasonable cause.

The claim is not well founded.